RAJAT KUMAR PATTNAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD Mr. B. P. Tripathy, learned counsel for the petitioner and Mr. M. K. Mohanty, learned Addl. Govt. Advocate.

(2.) THE petitioner is the owner of a Maruti Van bearing registration No. OR -02 -K -7642. The said Maruti Van of the petitioner was seized by the police on the allegation that it was involved in the offences under Section 47 (a)/ 55 of the Bihar and Orissa Excise Act. In connection with the said offences, Aska P.S. Case No. 26 of 2002 was registered (G, R. Case No. 40 of 2002) and the case is pending in the court of the learned J. M. F. C., Aska. The petitioner filed an application under Section 457, Cr. P. C. before the learned J.M.F.C., Aska for release of the said vehicle during the pendency of the case. But the said application was rejected by order dated 8.2.2002. The petitioner moved the learned additional Sessions Judge, Bhanjanagar, in Criminal Revision No. 8 of 2002 but the learned Addl. Sessions Judge declined to exercise revisional power under Sub -section (3) of Section 397 Cr.P.C. Thereafter, the petitioner filed an application under Section 482, Cr.P.C. before this Court numbered as Criminal Misc. Case No. 2478 of 2002. This court disposed of the said application filed under Section 482, Cr.P.C. with the observation that if any further application will be filed by the petitioner under Section 457, Cr.P.C. the learned J.M.F.C., Aska may consider the same in accordance with law and pass appropriate orders and in the event, the learned J.M.F.C., Aska considers to release the seized vehicle then adequate security be obtained and sufficient conditions be imposed so that the vehicle in question shall not be involved in committing similar type of offence. Thereafter, the petitioner again moved the learned J.M.F.C., Aska for release of the said vehicle. But by order dated 3.9.2002 the learned J.M.F.C., Aska rejected the said application after referring to the observation of the Patna High Court in the case of the State v. Ramyas Thakur, AIR 1964 Patna, 416 to the effect that the Magistrate cannot dispose of the seized property liable for confiscation under the Bihar and Orissa Excise Act under Section 523 of the Cr.P.C., 1898 (corresponding to Section 457, Cr.P.C. 1973). Thereafter, the petitioner again filed a revision petition No. 56 of 2002 before the learned Addl. Sessions Judge, Bhanjanagar. But by order dated 12.9.2002, the learned Addl. Sessions Judge, Bhanjanagar dismissed the said revision petition holding that the learned Magistrate has not committed any illegality or irregularity in rejecting the petition for release of the vehicle considering the gravity of the offence and the nature of the case. Aggrieved by the said orders dated 3.9.2002 passed by the learned J.M.F.C., Aska and dated 12.9.2002 passed by the learned Addl. Sessions Judge, Bhanjanagar, the petitioner has moved this Court in the present writ petition under Articles 226 and 227 of the Constitution.

(3.) SECTIONS 4 and 5 of the Cr.P.C. 1973 are quoted herein below :