SOUBHAGYA KUMAR PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Criminal Revision is directed against the order dated 10.1.2003 passed by the learned Sub -Divisional Judicial Magistrate, Anandapur, in G.R. Case No. 437 of 2002 rejecting the prayer of the Petitioner for releasing a motor -cycle under Section 457 of the Code of Criminal Procedure, 1973 (for short, "Code of Criminal Procedure") on the ground that under Section 68(1)(b) of the Bihar and Orissa Excise Act, 1915 (for short, 'the Act'), the Collector and not the Magistrate has the power to release any property which has been seized in connection with an excise offence. The Criminal Revision was initially heard by a learned single Judge when a judgment of a Division Bench of this Court in Rajat Kumar Pattnayak v. State of Orissa, : (2003) 24 OCR 426, was brought to the notice of the learned single Judge in which it has been held that the power to release the property seized as liable to confiscation under Section 66 of the Act is vested in the Collector or any Excise Officer specially empowered in that behalf by the State Government and not on the Magistrate. The learned Counsel for the Petitioner, however, argued before the learned single Judge that under the Proviso to Section 66 of the Act, no animal, cart, vessel, raft or other conveyance is liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence and in this case the motor -cycle of the Petitioner was stolen and used by some other persons for the commission of the offence and for this reason, the motor -cycle was not liable to confiscation and the Magistrate could have released the motor -cycle in exercise of his powers under Section 457, Code of Criminal Procedure Before the learned single Judge a decision of the Supreme Court in Sundarbhai Ambala Desai v. State of Gujarat,, (2003) 24 OCR (SC) 444, was also cited by the learned Counsel for the Petitioner wherein guidelines have been given by the Supreme Court to the Magistrates for exercise of their powers for release of properties under Sections 451 and 457, Code of Criminal Procedure The learned single Judge in his judgment dated 2.5.2003 held that the matter should be placed before a larger Bench with the permission of the Chief Justice and the Chief Justice has referred this matter to this Division Bench.

(2.) MR . D.P. Dhal, learned Counsel for the Petitioner, submitted that the Proviso to Section 66 of the Act made it abundantly clear that a conveyance shall not be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence. In this case, the charge -sheet has already been filed and it does not disclose that the Petitioner who is the owner of the motor -cycle is implicated in the commission of the offence and for this reason, the Petitioner has not been named as an accused person in the charge -sheet. Mr. Dhal vehemently argued that the motor -cycle of the Petitioner is thus "not liable to confiscation" and the Collector does not have the power to release the motor -cycle and instead the Magistrate has the power under Section 457 of the Code of Criminal Procedure to release the motor -cycle. He further submitted that in Sundarbhai Ambala Desai v. State of Gujarat (supra), the Supreme Court has held that it is of no use to keep a seized vehicle at the police station for a long period and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for release of the vehicle, if required at any point of time. According to Mr. Dhal, this is a fit case in which the Magistrate should have released the motor -cycle promptly so that it does not deteriorate in quality while in custody of the police.

(3.) WE have perused the decision of this Court in the case of Rajat Kumar Pattnayak v. State of Orissa (supra) and we find that in the said decision there was no contention raised that the owner of the vehicle was not implicated in the commission of the offence by the police in the charge -sheet. Hence the question as to whether in such a case where owner of the vehicle is not implicated in the commission of the offence by the police, the Magistrate would have the power under Section 451 or Section 457 of the Code of Criminal Procedure to release a seized vehicle, did not arise for decision. In the said case of Rajat Kumar Pattnayak v. State of Orissa (supra), this Court held that Sub -section (2) of Section 4 of the Code of Criminal Procedure made it clear that all offences under law shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences and Section 5 of the Code of Criminal Procedure further provided that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force and because of these provisions is Section 4 and Section 5 of the Code of Criminal Procedure, the specific provision in Section 68(1)(b) of the Act for release of any property liable for confiscation by the Collector or any Excise Officer empowered in that behalf by the State Government will apply and the provisions of Section 457 of the Code of Criminal Procedure for release of seized vehicle by the Magistrate will not apply to such property liable to confiscation under the Act.