Quashed

Nidhia Prusty v. State

Orissa HC8 Dec 2021CRLMC/291/2021

Case brief

AI extract

What is this about?

In a petition under Section 482 Cr.P.C., the High Court of Orissa quashed an order refusing release of a seized scooter. Finding that confiscation proceedings under the Orissa Excise Act had not been initiated, the Court directed remittal to the S.D.J.M. to decide the release prayer.

What did the court decide?

Impugned order quashed; matter remitted to S.D.J.M., Angul to pass orders for release of vehicle after imposing appropriate conditions.

Nidhia Prusty Vs State — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No. 291 of 2021

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Nidhia Prusty

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…. Petitioner

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Mr. D.R. Mishra, Advocate

-Versus -

State

….

Opposite Party

Mr. P. Tripathy, Addl. Standing Counsel

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CORAM: JUSTICE SASHIKANTA MISHRA

ORDER_

08.12.2021

Order No. 04.

This matter is taken up through hybrid mode.

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The petitioner in the present application filed under Section 482 Cr.P.C. seeks to challenge the order dated 06.02.2019 passed by learned Sessions Judge, Angul in Criminal Revision No. 23 of 2018 confirming thereby the order dated 05.12.2018 passed by learned S.D.J.M., Angul in Criminal Misc. Case No. 218 of 2018 in rejecting the prayer of the petitioner for release of his vehicle.

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The brief facts, relevant only for deciding the present petition are that a Scooty was seized in connection with Nalco P.S. Case No. 142 of 2018 on the allegation that Foreign Liquor was being transported therein illegally. The petitioner claims to be the owner of the said Scooty bearing Registration No. OD19H-9072. He filed an application under Section 457 of Cr.P.C. before the learned S.D.J.M., Angul but the same was rejected vide order dated 05.12.2018 on the ground that the vehicle was liable for confiscation as per Section 71 of the Orissa Excise Act, 2008. The petitioner carried the matter in revision to the Court of Sessions by filing the aforementioned criminal revision.

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Learned Sessions Judge after noting the decisions of the apex Court, relevant provisions of the Orissa Excise Amendment Act, 2016 and also some decisions of this Court held that the trial court did not commit any illegality in rejecting the application for release of the vehicle. The said order is impugned in the present application.

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Heard Mr. N. Panda, learned counsel for the petitioner and Mr. P. Tripathy, learned Addl. Standing Counsel for the State.

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Undoubtedly, the vehicle is involved in a excise offence is hence, liable for confiscation as per the Section 71 of the Orissa Excise Act, 2008 which is quoted below:

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71. Seizure of property liable to confiscation:– (1) (a) When there is reason to believe that any offence under this Act has been committed, the intoxicant, materials, stills, utensils, implements, apparatus, receptacles, package, coverings, animals, carts, vessels, rafts, vehicles, or any other conveyances or articles or materials used in committing any such offence may be seized by the Collector or any Officer of the Excise Police, Customs or Revenue Departments.

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(b) any intoxicant lawfully imported, transported, manufactured in possession or sold along with, or in addition to, any intoxicant which is liable to seizure under clause (a) and the receptacles, packages and coverings in which any such intoxicants as aforesaid, or any such materials, stills, utensil, implement or apparatus as aforesaid, is found and the other contents, if any, of such receptacles or packages, and the animals, carts, vessels, rafts, vehicles or other conveyances used in carrying the same, shall likewise be liable to seizure.

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(2) Every officer seizing any property under this section shall, except where the offender agrees in writing to get the offence compounded under Section 75, produce the property seized before the Collector, or an officer, not below the rank of a Superintendent of Excise, authorized by the State Government in this behalf by notification (hereinafter referred to as ‘Authorized Officer’).

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(3) Where the Collector or the Authorized Officer

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seized any property under Sub-section (1) or where the property seized is produced before him under Sub-section (2) and he is satisfied that an offence under this Act has been committed in respect thereof, he shall, without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of the property so seized or produced together with all other materials, articles, vehicles or conveyances used in committing such offence, whether or not a prosecution is instituted for the commission of such an offence.

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(4) No order confiscating .any property shall be made under Sub section (3) unless the person from whom the property is seized is given

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(a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property;

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(b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice; and

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(c) a reasonable opportunity of being heard in the matter.

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(5) Without prejudice to the provisions of Subsection (4), no order of confiscation under Sub-section (3) of any articles, materials, vehicles or conveyances shall be made if the owner thereof proves to the satisfaction of the Collector or the Authorized Officer, as the, case may be, that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of such property, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use.

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(6) Any person aggrieved by an order passed under Sub-section (3) may, within thirty days from the date of such order, appeal to the Excise Comissioner, who shall after giving an opportunity to the parties to be heard, pass such order as he may think fit.

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(7) The property seized under this Section shall be kept in the custody of the Collector, the Authorized Officer or the other officer seizing such property or with any third party, until the amount for compounding the offence or the sum equal to the prevailing market value of the seized property or both are paid or until it is confiscated as the case may be :

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Provided that the seized property shall not be released during pendency of the confiscation proceedings even on the application of the owner of the property for

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such release.

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(8) Whenever property seized is liable to confiscation under this section and the offender or the person entitled to possession is not known or can not be found, the case shall be inquired into and determined by the Collector or the Authorized Officer, who may order confiscation :

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Provided that no such order shall be made until the expiration of one month from the date of seizing of the property to be confiscated, or without hearing any person who may claim any right within the said period and the evidence if any, which he produces in support of his claim.

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(9) If the property seized is liable to speedy and natural decay, or if the Collector or the Authorized Officer, as the case may be, is of the opinion that sale would be for the benefit of its owner, such officer may, at any time, direct it to be sold and the provisions of this section shall, as nearly may be practicable, apply to the net proceeds of the sale.

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(10) Subject to the rules as may be made by the State Government under Section 90, the Collector or the Authorized Officer, while making an order of confiscation, may also order that such of the properties to which the order of confiscation relates, which in his opinion to be recorded in writing cannot be preserved or not fit for human consumption, may be destroyed.

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(11) Where the Collector or the Authorized Officer after passing an order confiscation under Sub-section (3) is the opinion that, it is expedient in the public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction or dispose of departmentally.

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(12) The Collector or the Authorized Officer shall submit a full report of all particulars of confiscation to the Excise Commissioner within twenty-four hours of such confiscation.

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(13) The Collector or the Authorized Officer shall, for the purposes of this Act, have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 5 of 1908, while making inquiries under this section in respect of the following matters namely :–

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(a) receiving evidence on affidavit;

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(b) summoning and enforcing the attendance of any person and examining him on oath; and

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(c) compelling the production of documents.

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Page 4 of 6

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Further, Section 72 of the Orissa Excise Act, 2008 places a bar on the criminal Court to direct release of the vehicle during pendency of a confiscation proceeding when the same has already been initiated. This Court in several decisions has laid down that unless a confiscation proceeding has actually been initiated, the bar under Section 72 of the Orissa Excise Act, 2008 shall not apply. Reference in particular may be had to the decision of this Court in the case of Ghasana Mahapatra vs. State of Orissa, reported in 2019 (1) OLR 275, wherein it was held as follows;

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“8. However, perusal of the order reveals that the learned S.D.J.M., Boudh has rejected the petition only on the ground that Section 72 of the Orissa Excise Act bars the criminal court from entertaining the petition. It was not ascertained by him whether actually the vehicle has been produced before the learned Collector or the Authorized Officer and a confiscation proceeding has been started. The law is very well settled that whenever valuable property like vehicle is seized then it should be produced before the officer, so authorized in this case. Collector or Authorized Officer duly notified, should be produced within a reasonable time and confiscation proceeding should be started. Since right to property under Article 300-A of the Constitution of India is a legal right, though it is not a fundamental right, it is incumbent on the part of the Government Functionary to see that the confiscation proceeding is taken up as early as possible, especially, when there is a protection given to the innocent owner of the vehicle etc. (Emphasis supplied)

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In the case at hand there is nothing on record to suggest that any confiscation proceeding has been initiated. On the other hand, learned Addl. Standing Counsel has submitted as per the instructions received no confiscation proceeding has yet been initiated. In such view of the matter, there is no reason to detain the vehicle and it is open to the concerned criminal court to pass

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necessary orders under Section 457 of Cr.P.C.

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For the foregoing reasons therefore, the CRLMC is concerned, the impugned order is quashed. The matter is remitted to the learned S.D.J.M., Angul to pass necessary orders for release of the vehicle in accordance with law after imposing appropriate conditions as he may deem fit and proper.

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CRLMC is disposed of accordingly.

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Issue urgent certified copy as per rules.

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A.K. Rana

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( Sashikanta Mishra) Judge

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Nidhia Prusty v. State

Case brief

What is this about?

What did the court decide?

Nidhia Prusty v. State

Case brief

What is this about?

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