The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos. 2464 of 2023 Application under Section 482 of Criminal Procedure Code, 1973. Ashok Paswan …. Petitioner --------------- -versus- State of Orissa …. Opp. Party Advocate(s) appeared in this case:- For Petitioner : Mr. S. R. Das, Advocate For Opp. Party Vs. : Mr. S.K. Mishra, Additional Standing Counsel __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 5th September, 2023 SASHIKANTA MISHRA, J. The petitioner claims to be the registered owner of the vehicle bearing Registration No.OD-02-BD-6675, which was seized by the Inspector of Excise Mobile Unit-II, Cuttack on 12.10.2022 for allegedly carrying contraband Bhanga. A case has been registered being 2(a) CC No. 833 Page 1 of 8 of 2022 in the court of learned J.M.F.C.(Cog-II), Cuttack in this connection. It is stated that the vehicle was taken by one Jogendra Paswan for business but the same was used for carrying Bhanga, which was not within the knowledge of the owner. The petitioner filed a petition under Section 457 of Cr.P.C. for release of the seized vehicle in the Court of learned J.M.F.C.-II, Cuttack being CMC No.15 of 2022. By order dated 03.04.2023, learned J.M.F.C. allowed the petition subject to certain conditions. The petitioner complied with all the conditions whereupon order was passed on 07.04.2023 by learned J.M.F.C. directing release of the vehicle in favour of the petitioner. However, despite such order of learned J.M.F.C. the Excise Officials did not release the vehicle for which the petitioner filed a petition alleging non implementation of this order. Such petition was filed on 11.04.2023 and by order dated 17.04.2023, the court below directed the Superintendent of Excise, Cuttack to show cause regarding non-compliance of the order to release the seized vehicle. Later, on that date information was received by the court below that the Page 2 of 8 Authorized Officer-cum-Superintendent of Excise, Cuttack had disposed of the confiscation proceeding of the seized vehicle. Nevertheless, the matter was posted to 19.04.2023 as per the previous order but on that date, no show cause was filed by the Superintendant of Excise. As such, learned J.M.F.C. directed the petitioner to take shelter in the appropriate court of law. This is how the petitioner is before this Court seeking the following relief:- i.e.
Legal Reasoning
“In the circumstances stated above it is prayed that the CRLMC application may be admitted and after hearing both the parties necessary/appropriate direction may be given to the Opp. Party to release the vehicle of the petitioner EICHER Pro-5016 bearing Registration No. OD-02-BD-6675, Chassis No. MC2TIRRFOKA Engine No.E6 015421, 24CDKC 276398 within a stipulated period in order to comply the order dated 13.04.2023 passed by (Cog.-II), Cuttack in CMC No.15/2022-23 corresponding to Mobil Unit-II, Excise Station P.R. No.133/2022-23 arising out of 2(a) CC No. 833 of 2022.” learned J.M.F.C. the And pass such other order/orders direction/directions as deem fit and proper to the present case. And for the said act of kindness, the petitioner as in duty bound shall ever pray.” Page 3 of 8
Legal Reasoning
3. Heard Mr. Soumya Ranjan Das, learned counsel for the petitioner and Mr.S.K. Mishra, learned counsel for the State. 4. Mr. Das would forcefully contend that considering the report of the IO that the seized vehicle is no longer required for further investigation and taking note of the ratio decided in Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in (2003) 24 OCR (SC) 444, the Court below had directed the release of the vehicle also referring to the judgments of this Court passed in Aswini Kumar Das Vs. State of Orissa, reported in 2022 (Supp.) OLR- 1004 and Ashish Ranjan Mohanty (Adv.) vs. State of Odisha and others, reported in (2019) 1 OLR 275. Mr. Das further submits that the so-called confiscation proceeding is no proceeding in the eye of law as no notice thereof was ever served upon the petitioner till the Court below had directed release of the vehicle. Moreover, the Authorized Officer despite being aware of the order passed by the court below directing release of the vehicle Page 4 of 8 attempted to nullify the same by hastily concluding the confiscation proceeding. 5. Mr. S.K. Mishra, learned Additional Standing Counsel, on the other hand, contends that repeated notices were sent to the petitioner in the confiscation proceeding but he did not respond despite service of the same. The petitioner received notice issued on 31.03.2023 and therefore, he cannot take the plea that he was not aware of the pendency of the confiscation proceeding. Mr. Mishra has also referred to the bar under Section 72 of the Odisha Excise Act by submitting that once the confiscation proceeding had been initiated the application under Section 457 of Cr.P.C. was no longer maintainable. 6. In order to appreciate the rival contentions, this Court called for the original file of the confiscation proceeding, which was produced by the State Counsel. It appears from the order sheet of the confiscation proceeding that the same was initiated on 21.11.2022 and notice was directed to be issued to the petitioner to appear on 07.12.2022. There is nothing in the order dated 07.12.2022 as to if Page 5 of 8 notice was actually served upon the petitioner but notice was again directed to be issued fixing 03.01.2023 for his appearance. This Court has perused a copy of the notice issued on 21.11.2022, which is available in the case record. There is no endorsement therein of the same having been served upon the petitioner. Similarly there is no endorsement on the copy of the second notice issued on 07.12.2022 of the same having been served upon the petitioner. Similar is the case with the third notice issued as per order dated 03.01.2023. The proceeding was adjourned to two more dates and on 21.03.2023, notice was issued for the fourth time. Copy of the fourth notice available on the case record shows a left thumb impression, purportedly of the petitioner-Ashok Paswan but then who identified the petitioner or attested his L.T.I. is not mentioned. In the absence of any identification of the petitioner or attestation that the L.T.I. actually belongs to him, it is difficult to accept that the notice was actually served upon him. In the meantime, learned J.M.F.C. passed order for release of the vehicle on 03.04.2023. Page 6 of 8 Thus, as on 03.04.2023, no notice of the proceeding appears to have been validly served upon the petitioner. Such being the case, it cannot not be said that the proceeding before the Authorized officer was one as contemplated under Section 71 of the Odisha Excise Act. In fact, the subsequent order passed on 12.04.2023 does not indicate anything as regards service of notice on the petitioner. On the contrary, the order dated 03.04.2023 was duly forwarded by the court below to the Superintendent of Excise, Cuttack with direction to comply with the conditions imposed for release of the vehicle and to submit report by 13.04.2023. 7. Be that as it may, the fact that notice of the confiscation proceeding had not been served upon the petitioner at any time prior to passing of the order for release of the vehicle, the bar under Section 72 of the Odisha Excise Act, cannot in the considered view of this Court, apply. This Court also notes with some concern that despite being aware of the order passed by the Court below for release of the vehicle and to submit show cause Page 7 of 8 regarding non-compliance of such order, the Superintendant of Excise remained silent and on the contrary, deemed it proper to send extract of the order dated 12.04.2023 passed by him in the confiscation proceeding purportedly confiscating the seized vehicle. From what has been narrated hereinbefore, such a course of action obviously cannot be countenanced in law as it runs entirely contrary to the spirit of rule of law envisaged under the constitutional scheme of this country. 8. For the foregoing reasons therefore, this Court is of the considered view that the order passed by learned J.M.F.C. in directing release of the vehicle in favour of the petitioner is to be implemented without any further delay. This Court orders accordingly. 9. The CRLMC is disposed of directing the Authorized Officer to release the vehicle as directed by learned J.M.F.C. (Cog-II), Cuttack without any further delay. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 11-Sep-2023 10:20:31 B.C. Tudu, Sr. Steno ..……..………………….. Sashikanta Mishra, Judge Page 8 of 8