Lade Srihari Phakeer Raju @ Ladi Pakar Raju @ L. Pakiru State of Odisha v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10479 of 2014 Lade Srihari Phakeer Raju @ Ladi Pakar Raju @ L. Pakiru State of Odisha and others ….. Vs. ….. Petitioners Mr. G.N. Sahu, Advocate Opposite Parties Mr. P.K. Muduli, AGA CORAM:
Legal Reasoning
DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY
Decision
ORDER 09.04.2024 Order No. 10. This matter is taken up through hybrid mode. 2. Heard Mr. G.N. Sahu, learned counsel for the petitioner and Mr. P.K. Muduli, learned Additional Government Advocate for the State. 3. The petitioner has filed this writ petition seeking to quash the illegal seizure dated 24.04.2014 under Annexure-4 and to direct the opposite party no.2 to release the seized Jaggery of 70 quintals in favour of the petitioner within the stipulated period. 4. Mr. Sahu, learned counsel for the petitioner vehemently contended before this Court that the petitioner has approached this Court against the action of the opposite parties 2 to 4 in breaking open the petitioner’s go-down and making seizure of Jaggery (Gur) on 24.04.2014 in his absence, which he had purchased from the authorized traders with due payment of tax for the same and despite the fact that the Jaggery is not an intoxicant nor prohibited commodity in the State of Orissa under the Bihar and Orissa Excise Act, 1915. It is further contended that in order to meet the local Page 1 of 5 demands of Jaggery (Gur), he purchases the same from different authorized traders in order to sell the same in the villages. On 22.04.2014 the petitioner had purchased 40 quintals of Jaggery from one M/s. Mounika Traders, Raniguda Farm, Rayagada and while making payment for said Jaggery he also paid tax (@ 5% of the value of goods. Similarly the petitioner purchased 30 quintals of Jaggery (with three retail invoices of 10 quintals each) from one Nabadurga Traders, By-Pass Road, near Gandhi Chhowk, Jeypore, Dist-Koraput on dated 23.04.2014 having Retail Invoice Sl. No.57 to 59. In such purchase the petitioner also paid tax @ 5% on the value of the purchased goods. It is further submitted that for the total quantity of 30 quintals of Jaggery the authorized Nabadurga Traders also issued Way Bill for transportation from Jeypore to Kerada. On 24.04.2014 when the said Jaggery had been kept in his go-down, the Opp. Party Nos.3 & 4 on being accompanied by Opp. Party No.2 arrived at the go-down and broke open the go-down of the petitioner in order to seize the aforesaid Jaggery purchased by the petitioner. The petitioner raised objection that the said Jaggery is not a prohibited commodity under the Bihar & Orissa Excise Act as the same is used by the public for human consumption as well as an item for cattle feed. However the Opp. Party Nos.3 and 4 without taking into consideration the aforesaid facts and law that Gur is not an intoxicant or an intoxicating drug per section 2 (12-a) or section 12 (13) of the Bihar & Orissa Excise Act nor is the same included in the definition of liquor, pachway or spirit or tari, illegally seized the said Gur under Section 34 (a), 34 (e) and 50 of the Andra Pradesh Excise Act, 1968 read with Section 3 of Gur (regulation of use) Order, 1968 on the allegation that as per the statement of the accused involved in Page 2 of 5 Crime No. 32 of 2014-15 the description of Jaggery is similar to the one those were seized in Peddavalasa village, Komaradamandal, Dist-Parvatipuram. Therefore, it is contended that section 34 (a) and (e) of Andhra Predesh Excise Act is not applicable to the petitioner. Consequentially seeks for release of 70 quintal of Jaggery (Gur) which was seized by the authority. 5. Mr. P.K. Muduli, learned Additional Government Advocate for the State referred to the counter affidavit filed by opposite party no.2, wherein at paragraphs 7 and 9 it has been stated that it is not a fact that the seized Jaggery was meant for use by public for human consumption as well as item for cattle feed, as per information of Inspector of Prohibition and Excise, Parvatipurm, rather it was meant for supply to illicit distillers in Parvatipuram Excise Station area. In this Connection, a case has also been registered and in course of further investigation it was seized. To avoid problem in transportation to Parvatipuram, the Sub-Inspector of Excise, Sadar Charge, Rayagada was given zimma of the seized Jaggery for safe custody by the Inspector Prohibition and Excise, Parvatipuram. The said Zimma nama (mediator report) and Requisition of Prohibition and Excise Inspector, Parvatipuram are placed on record. On 27.4.2014, as per requisition dated 26.4.2014 of the Prohibition & Excise Inspector, Parvatipuram the Sub Inspector of Excise Parvatipuram has taken back the 140 bags of black Jaggery from Rayagada Sadar Station to their custody. It has also been stated that the opposite party No.2 in whose custody the seized Jaggery was kept in zimma was already returned back to the Inspector Prohibition and Excise, Parvatipuram as per his requisition of Prohibition and Excise Inspector on 27.04.2014, which is prior to the order No.3 Page 3 of 5 dated 07.07.2014 of this Court. Counter affidavit has also been filed by the opposite parties 3 and 4 in the line of the counter affidavit filed by opposite party no.2, the relevant paragraphs are paragraphs 7 to 9. 6. Having heard learned counsel for the parties and after going through the records, it appears that Jaggery (gur) has been seized for supply to illicit distillers in Parvatipuram Excise Station area, as such that is in connection with a criminal case and the same was sent for chemical examination and a report has been received from the competent authority, wherein it has been specifically mentioned in the description column that the samples are in Cr. No. 32/2014-15 of Proh. & Excise Station, Parvathipuram and in the remark column it has been mentioned that the samples at S. No. 8551 to 8732 are Black Jaggery, contains Sugars & Extraneous matters. Fit for fermentation producing alcohol Unfit for human consumption. If the same is unfit for human consumption and fit for fermentation and production of alcohol, in that case, this Court cannot come to conclusion that the seizure is bad, rather the seizure has been made in conformity with the provisions of law. Therefore, now claim of release of such commodities at this point of time does not arise, since in the meantime more than 10 years have been passed. As such the seized articles having been released in favour of opposite parties 3 and 4, in the present writ petition, no direction can be issued for release of such materials after long lapse of 10 years. More so, seized articles having been released in favour of the Excise authorities of Andhra Pradesh prior to passing of the interim order dated 07.07.2014 and after 07.07.2014 nothing has been placed on record that the seized articles are remaining with the opposite parties. Page 4 of 5 7. In view of such position, since the interim order passed by this Court has lapsed prior to the order passed on 07.07.2014 on release of the seized article in favour of the opposite parties 3 and 4, thereby, this Court is not inclined to issue any direction with regard to release of seized Jaggery (gur) after long lapse of more than 10 years, more so, the same being not useful for human consumption and it is to be utilized for the purpose of fermentation and production of alcohol. However, liberty is granted to the petitioner if at all he is aggrieved, he may appropriate application before the appropriate forum for redressal of his grievance. 8. With the above liberty, the writ petition stands disposed of. JUDGE (DR. B.R. SARANGI) Arun (G. SATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 10-Apr-2024 17:19:20 Page 5 of 5