The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 28124 of 2024 Ramjanam Prasad ..... Petitioner The Excise Commissioner, Odisha, Cuttack and another ..... Opposite Parties -versus- Advocates appeared in this case: For Petitioner : Mr. P.K. Nayak, Advocate For Opp. Parties : Mr. S.K.Swain, Advocate, Additional Government Advocate THE HON'BLE MR. JUSTICE ARINDAM SINHA CORAM: AND
Legal Reasoning
THE HON'BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ------------------------------------------------------------------------------------------------------- Dates of hearing :16th December, 2024 and 9th January, 2025 Date of judgment : 9th January, 2025 ------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The writ petition bears challenge to detention of a vehicle. The goods being carried stood confiscated and have been auctioned. Petitioner is owner of the vehicle. It is a ten wheeler truck. W.P.(C) no.28124 of 2024 Page 1 of 9 Petitioner’s contention is, the vehicle was not produced as mandated under sub-section (2) in section 71 of Odisha Excise Act, 2008. Sub-section (2) is reproduced below. “71(2) Every officer seizing any property under this section shall, except where the offender agrees in writing to get the offence compounded under Section 75, produce the property seized before the Collector, or an officer, not below the rank of a Superintendent of Excise, authorized by the State Government in this behalf by notification (hereinafter referred to as „Authorized Officer‟).” 2. Mr. Nayak, learned advocate appearing on behalf of petitioner had moved the petition on 28th November 2024. Relying on certified copy of a communication made by Sub-Inspector of Excise to the Superintendent of Excise-cum-Authorized Officer, he contended that date of production is blank as appears from the document. Earlier, Mr. Swain, learned advocate, Additional Government Advocate appearing on behalf of State had pointed out that the certified copy was of communication bearing DB no. 440 dated 21st December, 2023, while the vehicle had been produced on 20th November, 2023 as evidenced by annexure-A/1 in the counter, bearing DB no.396 of said date. As such there were two documents, bearing same contents regarding production of the vehicle, signed W.P.(C) no.28124 of 2024 Page 2 of 9 by two different persons officiating as Sub-Inspector of Excise. One bears DB no. 396 dated 20th November, 2023 and the other, DB no. 440 dated 21st December, 2023 with discrepancies in blanks and signatures appearing thereon. We, by our order dated 16th December, 2024 had made directions as in paragraphs 3 and 4 in order made that day. The paragraphs are reproduced below. “3. We have serious allegations made before us. While the document produced in the counter is on notice of the document relied upon by petitioner, the former has distinct DB no.396 dated 20th November, 2023. Petitioner‟s certified copy caries DB no.440 dated 21st December, 2023. Apart from that the text is identical. However, the certified copy does not bear signature of the Sub-Inspector of Excise as put on 20th November, 2023 in the document produced by counter. Instead the certified copy made has written endorsement of another Sub- Inspector, signed on 25th January, 2024. Mr. Swain points out explanation given in paragraph 12 of the counter. 4. The original certified copy is put in an envelope. Registrar (Judicial) will communicate website copy of this order to concerned Court by special messenger, to obtain clarification on how two letters of the department, both bearing signatures of the Sub-Inspector of Excise but shown to be made on different dates can bear the same text. Any other relevant information may also be W.P.(C) no.28124 of 2024 Page 3 of 9 furnished. The Registrar will lay note including producing the original letters/file on or before adjourned date.” Registrar (Judicial) laid note and report of the Civil Judge-cum- JMFC, in compliance. 3. There were two persons, who officiated as Sub-Inspector of Excise. One Babun Kumar Behera made communication DB no. 396 dated 20th November, 2023 to the Superintendent saying the truck was produced on that date. In his explanation attached to the report he says, forwarding memo to the Court was not sent. Said Babun Kumar Behera relinquished the office on that date itself by handing over charge to next incumbent, one Laxman Naik. Said incumbent, in his explanation attached to the report says, on a subsequent date he noticed that intimation to Court had not been given. Hence, he took another print from the computer of the document being DB no. 396 dated 20th November, 2023, numbered it as DB no. 440 dated 21st December, 2023, signed it on 25th January, 2024 and sent it to Court. It is the second document, certified copy of which petitioner obtained from the Court and had
Decision
annexed in the writ petition to say, the vehicle was not produced. W.P.(C) no.28124 of 2024 Page 4 of 9 4. Mr. Swain submits, the certified copy was obtained from the Court of Civil Judge-cum-JMFC and not from the authorized officer. Copy of the document DB no.396 dated 20th November, 2023 has been annexed in the counter marked A/1. He points out from annexure-B/1 being order dated 24th November, 2023 made by the authorized officer that it was a contemporaneous order passed soon after the production, recording it. We reproduce a passage from the order, incomplete as appearing from it. “SI of Excise Dist. Mobile Unit, Sundargarh reported that he kept the seized mahua flower in zima to the Licensee Bijay Kumar Perua (MF.Licensee No-13/2021- 2022) EPH of Rajgangpur OS Shop through ASM Manoj Singh. He produced the seized Red colour Ten Wheeler Truck bearing Reg. No-OR-14W-8577. On 20.11.2023 and he was … …” It is after the order made that petitioner applied for compounding on 6th December, 2023. On petitioner having had so applied, there can be no doubt that he was aware of the confiscation on due production of the truck. The writ petition be dismissed. 5. Mr. Nayak in reply again relies on said provision in section 71(2). He submits, alleged production was without waiting for his client to apply for compounding. His client having had applied W.P.(C) no.28124 of 2024 Page 5 of 9 cannot be construed as an admission that the vehicle had been produced, an event of which his client could not have had knowledge. 6. The communication DB no.396 dated 20th November, 2023 was penned by the earlier Sub-Inspector of Excise, addressed to his superior, the Superintendent. A copy by memo was to be marked to the Court. Subsequent incumbent, who joined on 20th November, 2023, day when the vehicle is said to have been produced, says he discovered later that intimation had not been sent to the Court. He took another print from the computer, gave a different number and date to it and sent it to the Court. Petitioner obtained certified copy of it from the Court and has produced it before us. We thus have a document signed by the Sub-Inspector as addressed to the Superintendent and copy thereof given to the Court. In it date of production of the vehicle is blank. 7. The confiscation must be by authority of law because the authorized officer is seeking to confiscate a citizen’s property. Hence, for the purpose of us being convinced to find that the vehicle was duly produced on 20th November, 2023, we looked at material relied upon by State. We find from said order dated 24th W.P.(C) no.28124 of 2024 Page 6 of 9 November, 2023 of the authorized officer that statement made therein is what the Sub-Inspector had reported. We have not been able to find a line in confirmation, appearing in the order, saying that the vehicle had actually been produced. Mr. Swain points out that last sentence in the passage from said order reproduced above, says that the Sub-Inspector produced the seized red colour ten wheeler truck on 20th November, 2023. We read that sentence as part of what the Sub-Inspector had reported because it continues to say something else, which does not appear from the order. State has not produced to rely on the original communication DB no.396 dated 20th November, 2023, particularly when we by our said order dated 16th December, 2024 had called for report regarding the documents. 8. Case of the department is, there was intimation to be made to Court regarding the case of detention and confiscation. The intimation could not be made in a manner erroneous, for subsequent explanation that it is only an intimation and text of what was intimated may not be true reflection of the original document. It will be dangerous for us to act on such submission. We have also noticed that the outgoing officer said in his explanation, he was W.P.(C) no.28124 of 2024 Page 7 of 9 overburdened. He admits to have omitted sending the intimation. There is no explanation as to why copy of the original document was not sent as intimation but another document generated for purpose of it. This is significant as there is also no explanation as to how the omission was detected by the subsequent officer because, presumption is, detection happened on noticing the memo of intimation still in the file, never sent to Court. 9. For reasons aforesaid, we are constrained to hold that the confiscation was not by due exercise of power, as authorized by law. Impugned is confiscation order dated 27th March, 2024 as well as appellate office order dated 12th September, 2024, confirming the confiscation. Both the orders are set aside and quashed. In the meantime petitioner had obtained judgment dated 7th March, 2024 of acquittal under section 248(1) in Code of Criminal Procedure, 1973 from Court of the Judicial Magistrate First Class (JMFC), Rajgangpur in 2(a)(cc) Case no.427/2023. On strength of the judgment he had applied to the authorized officer for release of the truck. Relying on section 73, the application stood rejected. On us having set aside the confiscation order and the confirmation in appeal, we will not restore the confiscation proceeding because W.P.(C) no.28124 of 2024 Page 8 of 9 though by section 73 it is provided that result of criminal proceeding of, inter alia, acquittal will have no bearing on the order of confiscation passed, upon the confiscation set aside and there existing said judgment dated 7th March, 2024 of the JMFC, restoration of the proceeding to the authorized officer will give rise to possibility of there still being order of confiscation, which will go against said judgment of a Court. 10. Petitioner is entitled to release of the truck. Petitioner will produce certified copy of this order before the authorized officer, who will release the truck to him forthwith. The certified copy of communication being DB no.440 dated 21st December, 2023 be kept back in the file in sealed cover. 11. The writ petition is allowed and disposed of. dutta/radha Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: OHC Date: 13-Jan-2025 15:53:46 W.P.(C) no.28124 of 2024 Prasant (Arindam Sinha) Judge (M.S. Sahoo) Judge Page 9 of 9