Soumya Ranjan Behera Vs State of Odisha

Heard learned counsel for the Petitioner as well as learned counsel for the State. Perused the application as well as the documents annexed thereto and order dated 11.02.2025 passed by the Excise Commissioner, Odisha, Cuttack in Excise Appeal Case No.28/2024-1252.

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The present application has been filed at the instance of the Petitioner thereby invoking the jurisdiction of this Court under Section 482 of the Cr.P.C./ 528 of the B.N.S.S. with a prayer to quash the order dated 11.02.2025 passed by the Excise Commissioner, Odisha, Cuttack in Excise Appeal Case No.28/2024-1252 at Annexure-6 and consequentially to quash order 14.11.2024 passed by the Authorized Officer-cumSuperintendent of Excise, Cuttack in Excise C.P. Case

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Page 1 of 9.

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No.81/2024-25 at Annexure-4.

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Learned counsel for the Petitioner at the outset contended that the vehicle in question was seized while it was carrying liquor. Accordingly, a case was registered against the accused persons and, accordingly, a criminal prosecution was launched bearing P.R. No.73 of 2024-25 which is now pending before the learned J.M.F.C. (Cog-Taking-II), Cuttack. Besides the aforesaid criminal prosecution, a confiscation proceeding was also initiated against the vehicle bearing Regd. No.OD-02V-0482 i.e. the TATA Indigo vehicle as described in the document under Annexure-3 to the application. The confiscation proceeding was registered as Excise C.P. Case No.81 of 2024-25, the Authorized Officer-cumSuperintendent of Excise, Cuttack vide order dated 14.11.2024 passed the order for confiscation of the vehicle which was involved in the abovenoted excise case for which a criminal prosecution has already been launched.

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Being aggrieved by the aforesaid order dated 14.11.2024, the Petitioner preferred an appeal before the Excise Commissioner, Odisha, Cuttack in Excise Appeal Case No.28/2024-1252. The aforesaid appeal has been filed under Section 71(6) of the Odisha Excise Act, 2008. The appeal so preferred by the Petitioner has also been rejected vide order dated 11.02.2025 at Annexure-6 to the application. Being aggrieved by the aforesaid two orders passed in the abovenoted confiscation proceeding, the Petitioner has approached this Court by filing the present application under Section 482 of the Cr.P.C./ 528 of the B.N.S.S.

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Learned counsel for the State on other hand contended that

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Page 2 of 9.

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any order passed in the confiscation proceeding cannot be challenged by the Petitioner by invoking the inherent jurisdiction of this Court under Section 482 of the Cr.P.C. corresponding 528 of the B.N.S.S. She further contended that the Section 71 of the O.E. Act, 2008 is a stand-alone provision which provides for confiscation of the vehicles involved in the commission of the crime. So far the commission of the crime is concerned, a separate criminal prosecution is to be launched against the accused persons upon filing of the P.R. She further contended that for violation of the provisions contained in Section 52, 58, 60, 61, 62 & 63 of the Act, criminal liability has been provided in Section 66 to Section 70 of the said Act.

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In such view of the matter, learned counsel for the State contended that a proceeding under Section 71 of the Odisha Excise Act for confiscation of the vehicle is not a criminal proceeding. Therefore, the present application under Section 482 of the Cr.P.C. is not maintainable. Moreover, the proceeding under Section 71 is not governed under the Cr.P.C./ B.N.S.S. Therefore, the power under Section 482/528 of the respective act cannot be exercised to set aside the impugned orders. On such ground, learned counsel for the State contended that the present application is misconceived and, accordingly, the same should be dismissed at the threshold.

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Having heard the learned counsels appearing for the respective parties, on a careful scrutiny of the materials on record, this Court observes that the Petitioner has approached this Court being aggrieved by the orders passed by the Authorized Officercum-Superintendent of Excise in the confiscation proceeding and,

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Page 3 of 9.

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subsequently by the Commissioner of Excise, Odisha in appeal under Section 71 of the Odisha Excise Act, 2008. Section 71 of the Odisha Excise Act provides the procedure with regard to seizure of property liable for confiscation. It also lays down the procedure for confiscation of the property used in the alleged crime.

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Moreover, the sub-Section 3 of the Section 71 clearly provides that the Collector or the authorized officer is authorized to pass an order confiscating the property so seized or produced. Which is in addition to the criminal liability provided under the aforesaid statute. So far the criminal liability is concerned, a criminal proceeding is to be initiated on the basis of a P.R. and the trial which would take place by following the provisions contained in Cr.P.C./ B.N.S.S. No doubt, the proceeding under Section 71 is concerned, the same is stand-alone provision and is to be governed by the procedure laid down in the said section itself. Neither the proceeding under Section 71 is a criminal proceeding nor the Authorized Officer is under any obligation of law to follow the Cr.P.C. or B.N.S.S. in exercise of its power to confiscate a vehicle under Section 71 of the O.E. Act, 2008. Section 71 of the O.E. Act is quoted hereinbelow:-

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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,

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Page 4 of 9.

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manufactured in possession or sold alongwith, 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 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 Commissioner, 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 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

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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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On a close scrutiny of the provisions contained in Section 71 of the Odisha Excise Act, 2008, further keeping in view the fact that order was passed by the Authorized Officer and thereafter, confirmed in appeal by the Commissioner of Excise,

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Odisha in exercise of its power under Section 71(6) of the Act, this Court is of the considered view that the proceeding before Authorized Officer as well as before the Appellate Authority i.e. the Commissioner of Excise is not a criminal proceeding and the same is not governed under the Cr.P.C./ B.N.S.S.

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In view of the aforesaid statutory position, it is not open to this Court to exercise its inherent power under Section 482 Cr.P.C./ 528 of the B.N.S.S. Accordingly, this Court has no hesitation in coming to a conclusion that the present application in its present form is not maintainable at the instance of the Petitioner to challenge the orders under Annexure-4 & 6. While disposing of the present application, liberty is given to the Petitioner to file an application for release of the vehicle claiming himself to be the owner of the vehicle before any other competent forum/ court by filing an appropriate application including a writ petition before this Court in the event the Petitioner wants to assails orders under Annexure-4 dated 14.11.2024 and Annexure6 dated 11.02.2025 to the application.

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On perusal of the order dated 05.03.2025, it appears that the learned Coordinate Bench had granted an interim order. Since this Court has come to a conclusion that the present application under Section 482 of the Cr.P.C. is not maintainable and while granting liberty to the Petitioner to approach this Court by filing an appropriate application, the aforesaid interim order is being extended by a further period of two weeks which shall be subject to the order to be passed by the assigned bench, in the event the Petitioner approaches this Court by filing a writ petition. Failing which the order dated 05.03.2025 which has been extended by

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Anil

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virtue of today‟s order shall stand automatically revoked.

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With the aforesaid observations, the CRLMC application stands disposed of.

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( A.K. Mohapatra ) Judge

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Signature Not Verified

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Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Aug-2025 11:36:56

Soumya Ranjan Behera v. State of Odisha

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Soumya Ranjan Behera v. State of Odisha

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