DILLIP DAS Vs. STATE OF ODISHA

JUDGEMENT

(1.) In this application under section 482 of the Cr.P.C., the petitioner Dillip Das has prayed for quashing the impugned order dated 18.12.2017 passed by the learned 1st Addl. Sessions Judge, Sambalpur in Criminal Revision No. 21/05 of 2017, whereby the learned revisional Court dismissed the revision petition and thereby confirmed the order dated 11.09.2017 passed by the learned S.D.J.M., Sambalpur in C.M.A. No.218 of 2017 which arises out of G.R. Case No.2166 of 2017.

(2.) The facts of the case is that the petitioner who is an accused in G.R. Case No.2166 of 2017 was transporting 150 numbers O.S. liquor pouch each containing 200 ml. liquor in an auto rickshaw bearing registration No.- OD15-G-9457, chassis no.NDX0000ZFUL385299 and engine no.H6A8643058 on 21.08.2017 and he was intercepted by the complainant who was the S.I. of Police, Burla police station. Since the petitioner failed to produce any authority for transporting the OS liquor pouch, those were seized along with the auto rickshaw. The petitioner after being released on bail filed a petition under section 457 of Cr.P.C. before the learned S.D.J.M., Sambalpur to release the auto rickshaw and vide order dated 11.09.2017, the learned Magistrate held that since the case has been instituted under section 52(a) of the Odisha Excise Act and in view of sections 71 and 72 of the said Act, he lacks jurisdiction to release the seized vehicle and accordingly, he rejected the petition under section 457 of Cr.P.C. The petitioner being aggrieved by the aforesaid order approached the revisional Court in Criminal Revision No. 21/05 of 2017 and the learned Addl. Sessions Judge, Sambalpur exercising his revisional power held that since Odisha Excise Act prescribes for confiscation proceeding, the provision under section 457 of Cr.P.C. is not applicable and accordingly, rejected the revision petition.

(3.) Mr. Nityananda Behuria, learned counsel for the petitioner contended that even though the auto rickshaw was seized with the 150 numbers of O.S. liquor pouch each containing 200 ml. on 21.08.2017 but till today no confiscation proceeding has been initiated as enumerated under the Odisha Excise Act and therefore, the observation of the learned Courts below that the power under section 457 of Cr.P.C. cannot be invoked is not proper. It is further contended that a person cannot be left remediless and the entire thing cannot be left in the mercy of the authority to initiate the confiscation proceeding and the vehicle being left under the open air being exposed to sun and rain, its condition is deteriorating day by day and therefore, it is a proper case where the power under section 457 of Cr.P.C. should be exercised and since there is no dispute that the petitioner is the registered owner of the seized auto rickshaw in question, it should be released in favour of the petitioner with suitable terms and conditions. He placed reliance in the cases of Narayan Tripathy -Vrs.- State of Orissa , 2012 52 OCR 634, Smt. Jasoda Das -Vrs.- State of Orissa , 2003 26 OCR 729, Jugal Kishore Nayak -Vrs.- The Authorised Officer -cum- Divisional Forest Officer , 2003 2 OrissaLR 530 and Rajkishore Das @ Baidhar -Vrs.- State of Orissa,2008 Supp CutLT 1260 (Crl.).