Pradyumna Kumar Acharya vs State of Orissa

B.K. Nayak, J.—Heard learned Counsel for the Petitioner and learned Standing Counsel for the State. Perused the impugned orders.

The Petitioner has been aggrieved by the order dated 17.5.2010 passed by learned S.D.J.M., Deogarh in C.M.C. No. 30 of 2010 (arising out of C. T. Case No. 247 of 2010) rejecting the Petitioner''s application u/s 457, Code of Criminal Procedure for interim release of his Mini Truck bearing Registration No. OR-15-G-7255 which order has been confirmed by the learned Additional Sessions Judge, Deogarh in Criminal Revision No. 5 of 2010.

The Mini Truck in question was seized by the police in Reamal P.S. Case No. 60 of 2010 for alleged involvement in transportation of Mahua flower without any authority or license which is an offence under Bihar & Orissa Excise Act. The Petitioner, who is undisputedly the registered owner of the Mini Truck in question filed application u/s 457, Code of Criminal Procedure for release of the said truck, which has been rejected mainly on the ground that since investigation is going on it would not be proper to release the vehicle and that the Petitioner may move the Collector and District Magistrate who has the power to make confiscation of the vehicle in terms of Sections 66 and 67 of the Bihar and Orissa Excise Act,1915. The Petitioner challenged the said order in Criminal Revision No. 5 of 2010 which has been dismissed by the learned Additional Sessions Judge, Deogarh on similar grounds and further holding that the revision was not maintainable.

The learned Counsel for the Petitioner submits that since the Petitioner, who is the registered owner of the vehicle in question, is not an accused in the aforesaid P.S. Case, it is not liable for confiscation by the Collector and District Magistrate and, therefore, the learned S.D.J.M., should not have rejected the petition, in view of the ratio laid down by the Apex Court in the case of Sunderbhai Ambala Desai v. State of Gujarat; (2003) 24 OCR (SC) 444. He further submits that the value and utility of the vehicle is deteriorating day by day as the vehicle is lying exposed to sun and rain. The learned Standing Counsel fairly submits that the Petitioner is not an accused in the aforesaid P.S. Case.

Under Sub-section (1) of Section 66 of the Bihar and Orissa Excise Act (hereinafter referred to as ''the Act'') whenever any offence under the Act has been committed the excisable articles, the materials, still, utensil, implement and apparatus by means of which the offence has been committed shall be liable to confiscation. Sub-section (2) of Section 66 makes the animals, carts, vessels, rafts or other conveyances used in carrying the excisable article etc. also liable to confiscation. However, the proviso appended under Sub-section (2) makes an exception stating that animal, cart or conveyance shall not be liable to confiscation unless the owner thereof has been implicated in the commission of offence.

In the instant case, since the Petitioner, who is undisputedly the registered owner of the Mini Truck in question, has admittedly not been implicated as an accused in the police case the Mini Truck is not liable for confiscation u/s 66(2) of the Act. Therefore, neither, the S.D.J.M., Deogarh nor the Additional Sessions Judge, Deogarh was justified in refusing to pass order for release of the Mini Truck in question. The aforesaid view of mine also gets support from the decision of this Court in the case of Soubhagya Kumar Panda v. State of Orissa reported in (2003) 25 OCR 840 where it was observed that petition u/s 457, Code of Criminal Procedure is maintainable before the Magistrate sitting on trial of the case, if the owner of the vehicle in question is not implicated in the offences alleged.

In the case of Sunderbhai (supra) the Hon''ble Apex Court while dealing with the petition u/s 457, Code of Criminal Procedure observed thus:

In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for Pradyumna Kumar Acharya v. State of Orissa the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

Relying upon the ratio laid down in the case of Sunderbhai (supra), this Court in the case of Nabakishore Sahoo v. State of Orissa:

2004 (II) OLR 556 has passed order for release of the vehicle in a case involving offence u/s 47(a) of the Act where even the owner of the vehicle was implicated as an accused in the commission of offence. Keeping in view the principles laid down in the cases of Sunderbhai and Soubhagya (supra) and having regard to the undisputed fact that the Petitioner is not implicated for the commission of the offence under the Act, I direct that the Mini Truck in question shall be released in favour of the Petitioner subject to fulfilling the following conditions (1) the Petitioner shall furnish property security worth Rs. 1,60,000/- (2) Three photographs of the Mini Truck taken from different angles of the vehicle shall be obtained and kept on record (3) the Petitioner shall furnish undertaking to the effect that he shall not change the nature and character of the Mini Truck and shall not tamper with its chasis and engine number and shall produce the same as and when called upon by the court.

The CRLMC is accordingly allowed.