E.ANKUDA PATRO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS application under Section 482, Cr.P.C. has been filed by the petitioner with the prayer to quash order dated 12.01.2005, Annexure -1 passed by the learned Sessions Judge, Berhampur in Criminal Revision Petition No.65 of 2004 and to pass order for release of the seized TVS Scooty (Moped) bearing Regn. No.OR 07 G 9563.

(2.) IT appears from the impugned order dated 20.3.2003 at 11.30 A.M., the S.I. of Excise, E.I. and E.B., Berhampur found the petitioner carrying 48 bottles of whisky in the seized T.V.S. Scooty, each containing 180 MI. and therefore the two -wheeler as well as the liquor was seized. Petitioner filed application under Section 457, Cr.P.C. before the Judicial Magistrate, First Class, Berhampur in 2(a) C.C. No.318 of 2003 and thereafter before learned Sessions Judge in the above noted Criminal Revision with the prayer to release the Scooty in his possession. Both the Courts below have rejected that prayer. Learned Sessions Judge, after taking note of the citations (mentioned hereafter) found that the seized article be subject to confiscation proceeding under Section 66 of the Bihar and Orissa Excise Act and accordingly, rejected petitioners prayer for interim lease of the two -wheeler.

(3.) IN the Case of Sunderbhai Ambala Desai v. State of Gujarat, (2003) 23 OCR (SC) 444, while in seisin of the matter relating to abuse of power by the police authorities in replacing valuables including gold ornaments, currency notes, etc. from police Malkhana, the apex Court found it desirable that steps should be taken for disposal of such property either in the interim custody or otherwise in accordance with the provision in Chapter XXXIV of Cr.P.C. Their Lordship, however, excluded the property, which is the subject matter of confiscation for appropriate decision by the concerned Court in given facts and circumstances. In the case of Nabakishore Sahoo v. State of Orissa, (2004) 29 OCR 683, learned Single Judge of this Court held that when the properties are seized for the offence under Section 47(a) of Bihar and Orissa Excise Act (in short, the Act), authority prescribed for confiscation in accordance with the provision under Section 66 has the competency to decide the question of confiscation and the Collector or the Excise Officer have the authority to consider the question of compounding of the offence and release of the vehicle in accordance with provision of Section 68(1) of the Act. However, his Lordship directed for release of the seized Scotter under certain terms and conditions. That direction in the said case for release of the scooter under certain terms and conditions has no force of binding precedent.