Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.6233 of 2025 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Prabir Kumar Das, Aged about 42 years Son of Bijay Das, At/P.O.: Puruna Balasore, P.S.: Chandipur, District: Balasore. … Petitioner -VERSUS- 1. State of Odisha Represented though Principal Secretary Excise Department At: Lokseva Bhawan, Odisha Bhubaneswar District: Khordha. 2. Excise Commissioner, Odisha CDA Road, Bidanasi District: Cuttack. 3. Collector-cum-District Magistrate Mayurbhanj, At/PO/P.S.: Baripada District: Mayurbhanj. 4. Authorized Officer-cum-Superintendent of Excise Mayurbhanj At/P.O./P.S.: Baripada District: Mayurbhanj. W.P.(C) No.6233 of 2025 Page 1 of 72 5. Officer-in-Charge of Excise, Deuli Excise Station, Deuli District: Mayurbhanj. … Opposite parties Counsel appeared for the parties: For the Petitioner : M/s. Bibhuti Ranjan Mohanty, Bikram Keshari Raj and Bishakha Baisali Raj, Advocates For the Opposite Parties : Mr. Bimbisar Dash, Additional Government Advocate P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 21.04.2025 :: Date of Judgment : 09.05.2025 MURAHARI SRI RAMAN, J.— J UDGMENT Assailing Order dated 08.01.2025 of the Excise Commissioner, Odisha, Cuttack-opposite party No.2 passed in Excise Appeal Case No.18/2024—366/Ex. (Annexure-6) affirming the Decision and Order dated 27.08.2024 of the Authorized Officer-cum- Superintendent of Excise, Mayurbhanj-opposite party No.4 in Excise (Con) Case No.4 of 2024 (arising out of P.R. No.31/2024-25) in connection with a proceeding W.P.(C) No.6233 of 2025 Page 2 of 72 under Section 71(3) of the Odisha Excise Act, 2008, the petitioner has approached this Court by way of filing the instant writ petition invoking provisions of Articles 226 and 227 of the Constitution of India with the following prayer(s): “The petitioner therefore prays that in view of the submission made above the Hon‟ble Court may be graciously pleased to admit the writ petition and issue rule nisi to the opposite parties as to; i) Why the order dt.27.08.2024 in Excise (Con.) Case No.4/2024 (Annexure-4) and its confirmation vide order dt.08.01.2025 passed in Excise Appeal No.18/2024 (Annexure-6) will not be quashed. ii) Why the seized TATA 407 truck vide Regd. No.OD- 01-AD-1005 shall not be given in Zima of the petitioner. And if the opposite parties fail to show cause or show insufficient cause the said Rule may kindly be made absolute. Or pass any appropriate order/direction as would be deemed fit and proper in the interest of justice. And for this act of kindness the petitioner as in duty bound shall ever pray.” Facts: 2. Facts leading to filing of this writ petition, as emanating from the contents of writ petition, are narrated hereunder. W.P.(C) No.6233 of 2025 Page 3 of 72 2.1. The petitioner, Registered Owner of Truck (TATA-407) bearing Registration No.OD-01-AD-1005 (hereinafter referred to as “the vehicle”), alleged that on 18.05.2024 at about 2.00 P.M. the Officer-in-Charge of Deuli Excise Station, detained and conducted search of said vehicle at Chaksuliapada under Chandua Police Station in the district of Mayurbhanj and on search 200 tins (weighing 25kgs each, in toto 5,000 Kgs.) of Molasses (Tarala Gur) were found. As the petitioner could not produce any valid documents in support of loaded goods before the said Officer-in-Charge, the vehicle was seized in exercise of power under Section 71 for possession of “intoxicant” as defined under clause (t) of Section 2 read with Section 17 of the Odisha Excise Act, 2008 (for short, “the OE Act, 2008”) and Rules 234 and 240 of the Odisha Excise Rules, 2017 (for brevity, “the OE Rules, 2017”) and forwarded the petitioner-owner of the vehicle and the driver of said vehicle to the Court of the learned Judicial Magistrate, First Class-I (Cognizance Taking), Baripada to face trial. Sample of the goods were sent for chemical analysis. 2.2. The Authorized Officer-cum-Superintendent of Excise, Mayurbhanj-opposite party No.4 (referred to as “AO”) issued show-cause notice under Section 71(4)(a) of the OE Act contemplating confiscation of the vehicle. Show- cause reply being filed, on consideration of which, Order W.P.(C) No.6233 of 2025 Page 4 of 72 dated 27.08.2024 was passed in Excise (Con) Case No.4 of 2024 (Arising out of P.R. No.31 of 2024-25) by the AO taking into consideration the definitions of the commodities, namely “INTOXICANT” and “MOLASSES” contained in Clauses (t) and (x) respectively under Section 21. 2.3. Finding that the petitioner was in possession of “molasses” comprehended within the meaning of “intoxicant” and transporting the same without any permit granted by the Collector as required under Section 17(1) of the OE Act, 2008 and Rules 234 and 240 of the OE Rules, 2017, the AO returned factual finding on the basis of chemical test report that subject goods found in the vehicle was cane molasses having probable outturn of alcohol. Since the vehicle so seized was not accompanied by necessary documents including valid permit, the AO established the allegation of commission of contravention of Section 17 of the OE Act, 2008 which attracted exercise of power under Section 1 Clauses (t) and (u) of Section 2 of the OE Act stand as follows: “(t) “Intoxicant” means any liquor, other intoxicating substance other than Narcotic drug or a psychotropic substance regulated by the Narcotic Drugs and Psychotropic Substances Act, 61 of 1985 which the State Government may, by notification, declare to be an intoxicant and includes mohua flower and molasses; *** (x) “Molasses” means the heavy dark coloured residual syrup drained away in the final stage of the manufacture of gur or sugar containing, in solution or suspension, sugars which can be fermented and includes any product formed by the addition to such syrup of any ingredient which does not substantially alter the character of such syrup, but does not include any article which the State Government may, by notification, declare not to be molasses, for the purposes of this Act;” W.P.(C) No.6233 of 2025 Page 5 of 72 71(3). Accordingly, order was passed, relevant portion of which runs as follows: “The seized vehicle bearing registration No.OD-01AD- 1005 (TATA-407), Engine No.4SPCR11CPY609492, Chassis No.MAT505560K8C06390 seized on 18.05.2024 vide P.R. No.31/2024-25 dated 18.05.2024 is hereby confiscated to Government under Section 71(3) of the Odisha Excise Act, 2008 for contravention of Section 17 of the Odisha Excise Act, 2008 read with Rule 234 & Rule 240 of the Odisha Excise Rules, 2017. The Investigating Officer here in the O.I.C of Excise, Deuli Excise Station, Mayurbhanj is directed to take necessary follow-up action for auction sale of the seized vehicle following due procedure after expiry of the appeal period and deposit the sale proceeds into proper head of account. A copy of the order be sent to the Investing Officer/ registered owner of the seized vehicle for information. Pronounced in the open Court this the 27th day of August, 2024.” 2.4. Dissatisfied with aforesaid decision and order of the AO, the petitioner carried the matter before the Excise Commissioner, Odisha, Cuttack under Section 71(6) of the OEA, 2008 by way of preferring an Appeal, registered as Excise Appeal Case No.18/2024— 366/Ex. Upon hearing the petitioner, the AO and the Investigating Officer, said Appeal came to be disposed of vide Order dated 08.01.2025 (Annexure-6) by the Excise W.P.(C) No.6233 of 2025 Page 6 of 72
Legal Reasoning
Commissioner, Odisha affirming Order of confiscation under Section 71(3) of the OEA, 2008, with direction to sell the vehicle in auction with the following observation: of the order passed by “I went through the prayer petition filed by the Learned Counsel, the Seizure List, Prosecution Report, Chemical Examination report and the Excise, Authorized Officer-cum-Superintendent Mayurbhanj. A recovery of 5000 Kilograms of molasses has been made from the TATA 407 truck bearing Regd. No.OD-01-AD-1005. The appellant was present in the said vehicle and he is also an accused in this case. The Chemical Examination report reveals that the seized article is molasses. The appellant has failed to produce any pass/permit the seized molasses. Further, ignorance of the appellant that the transported articles is molasses and its transportation without permit/pass is an offence cannot be a ground for setting aside the order of confiscation. Further the contention that the appellant had produced the online bill before the I.O. on the day of detection/seizure of molasses at the spot cannot be accepted, since officers from GST department and Police Department were also present during the seizure, the seizure being made during the joint checking on the eve of General Election-2024 and reportedly no online bill was submitted before the I.O. during the detection of the case, transportation of for Hence, use of the said vehicle in carrying molasses illegally with the knowledge of the owner makes a good ground for confiscation of the vehicle. In the instant case, the Authorised Officer-cum-Superintendent of Excise, Mayurbhanj has rightly passed the order on 27.08.2024 for confiscation of the vehicle in Excise C.P. Case No. W.P.(C) No.6233 of 2025 Page 7 of 72 04/2024, which is in accordance with law. Thus, I find no reason to interfere in the order of the Authorized Officer- cum-Superintendent of Excise, Mayurbhanj. Thus, the appeal does not hold any merit and is dismissed.” 2.5. Aggrieved thereby, the instant writ petition has been filed invoking provisions of Articles 226 and 227 of the Constitution of India. Hearing: 3. This matter came up before this Court under the heading “Fresh Admission”. Contending that as the authority did not acknowledge the online bill/ invoice sought to be produced at a later date to the search, the petitioner, registered owner, is entitled to get the seized vehicle released in his favour.
Legal Reasoning
3.1. On the concession of the learned counsel for both sides, this matter is disposed of at the stage of “Fresh Admission”. 3.2. Accordingly, heard Sri Bibhuti Ranjan Mohanty, learned Advocate appearing for the petitioner and Sri Bimbisar Dash, learned Additional Government Advocate appearing for the opposite parties. 3.3. On conclusion of hearing, the matter stood reserved for preparation and pronouncement of Judgment/Order. W.P.(C) No.6233 of 2025 Page 8 of 72 Rival contentions and submissions of counsel for the respective parties: 4. Sri Bibhuti Ranjan Mohanty, learned Advocate submitted that the petitioner, the owner of the vehicle bearing Registration No.OD-01-AD-1005, was carrying gur, found to be “molasses” by the authorities, on the instruction of one Sri Madhusudan Sahu of M/s. Sai Marketing Agency, Ganeswarpur, Januganj in the district of Balasore being purchased from Shree Subham Enterprises, Raghunathpur, Jhargram in the State of West Bengal on 18.05.2024. Due to non-functioning of the printer, the goods in the vehicle could not be accompanied by invoice. However, there was no predicament on the part of the Investigating Officer to consider the online invoice sought to be produced by said Madhusudan Sahu of M/s. Sai Marketing Agency on a later date. Since the opposite parties did not choose to cross-examine the witnesses whom the petitioner examined, the matter should have been decided favourably and the authorities instead of proceeding to confiscate the vehicle should have taken pragmatic view by releasing the vehicle. 5. Sri Bimbisar Dash, learned Additional Government Advocate refuting the contentions of the counsel for the petitioner urged not to entertain this writ petition inasmuch as the vehicle was carrying molasses without W.P.(C) No.6233 of 2025 Page 9 of 72 necessary documents and seeking to produce invoice subsequently is an afterthought. Since at the stage of detention of the vehicle for search, necessary documents were not produced before the Officer-in-Charge of the Chaksuliapada, adverse inference could be taken against the petitioner and his ill-motive is tell-tale. Therefore, no infirmity or illegality could be imputed against the Excise Authorities. 5.1. Per contra, Sri Bimbisar Dash, learned Additional Government Advocate contended that on the date of search of the vehicle, the petitioner never produced online invoice nor could he produce pass/permit indicating transportation of molasses from Shree Subham Enterprises, Raghunathpur, Jhargram of West Bengal to Sai Marketing Agency, Balasore, Odisha. 5.2. He further submitted that the chemical examination confirmed that goods carried on in the vehicle are “molasses”. 5.3. He, therefore, fervently pressed to dismiss the writ petition inasmuch as contradictory statement is being made by the petitioner at different times. Analysis and discussions: 6. On appreciation of facts on record, it is seen that in the show cause reply filed by the petitioner before the AO W.P.(C) No.6233 of 2025 Page 10 of 72 vide Annexure-2 in connection with seizure of vehicle effected on 18.05.2024 it has been stated that: “5. *** On the date of seizure, i.e., 18.05.2024 on the request of consignee namely Sai Marketing Agency, Balasore the goods were carried in the vehicle from Shree Subham Enterprises, Raghunathpur to Balasore on fare basis. As per tax invoice the goods were gur weighing 5200 kg. not molasses. Since the opposite party No.2-driver was unaware about the route the opposite party No.1 accompanied him. On the order of the said Marketing Agency the goods were carried under valid documents but without any basis the Investigating Officer had seized the goods and vehicle showing the goods to be molasses and arrested them illegally. 6. That the opposite parties have not committed any offence under the Excise Act and it was carried under valid documents and goods were nothing but gur as per tax invoice for which the case be dropped and vehicle is to be released in favour of owner/opposite party No.1.” 6.1. An affidavit dated 23.07.2024 sworn to by Madhusudan Sahu of M/s. Sai Marketing Agency of Balasore claimed to have been filed before the AO reveals the following fact: “I, Sri Madhusudan Sahu, aged 53 years, son of Late Sibanarayan Sahu, of village: Ganeswarpur, P.O.: Januganj, P.S. I.A. District: Balasore, do hereby solemnly affirm and state as follows: *** W.P.(C) No.6233 of 2025 Page 11 of 72 That accordingly on the date of seizure my purchased gur was loaded in the seized vehicle at Raghunathpur but due to sudden breakdown of printer the bill could not be released immediately for which the consignor assured me to send the bill on online. While the vehicle was coming the with my purchased gur the Officer-in-Charge, Deuli Excise Station, detained the vehicle at Chaksuliapada and illegally seized the vehicle and gur showing the same as molasses. That after obtaining the online bill I had shown the same to Investigating Officer but the Investigating Officer did not acknowledge it and filed PR against the owner and driver of the vehicle. 4. 5. *** Verification I, Sri Prabir Kumar Das, the above named deponent being present in the Kachery Premises today 23.07.2024 do hereby declare that the statements made in the affidavit are all true and correct to the best of my knowledge and belief. Identified by Sd/- 23.07.2024 Advocate Sd/- Madhusudan Sahu Verificant.” 6.2. It is startling to notice that the Notary Public, Balasore (Sri Trayanath Bag) has certified the petitioner (Prabir Kumar Das) to be present in the kuchery premises being signed by “Madhusudan Sahu”. The name of the W.P.(C) No.6233 of 2025 Page 12 of 72 advocate identifying the verificant could not be ascertained as the signature was not legible. 6.3. It is surfaced from scrutiny of the record that an affidavit dated 18.07.2024 being sworn to by Sri Mantu Mana (driver of the vehicle), enclosed at Annexure-3 of the writ petition, has not been signed neither at the space meant for “Deponent” nor “Verificant”, yet the Notary Public, Balasore has certified his presence in the kuchery premises. 6.4. Cursory glance at copies of three affidavits of the petitioner, the driver and Sri Madhusudan Sahu enclosed to the writ petitions claimed to have been furnished before the AO as evidence under Order XVIII, Rule 4 of the Code of Civil Procedure, 1908, appears to be not executed by the “deponent” or “verificant”. They are simply filed to misdirect and misguide the Court or the AO. Aforesaid affidavits enclosed at Annexure-3 do not inspire credibility. 6.5. Legal perspective of evidence on affidavit has been discussed in Ayaaubkhan Noorkhan Pathan Vrs. State of Maharashtra, (2013) 4 SCC 465 which is as follows: “Affidavit— Whether “evidence” within the meaning of Section 3 of the Evidence Act, 1872 31. It is a settled legal proposition that an affidavit is not “evidence” within the meaning of Section 3 of the W.P.(C) No.6233 of 2025 Page 13 of 72 Evidence Act, 1872 (hereinafter referred to as “the Evidence Act”). Affidavits are, therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the court passes an order under Order 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any court or tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation. (Vide, Sudha Devi Vrs. M.P. Narayanan, (1988) 3 SCC 366 = AIR 1988 SC 1381 and Range Forest Officer Vrs. S.T. Hadimani, (2002) 3 SCC 25 = AIR 2002 SC 1147).