JUDGMENT

L. MOHAPATRA, J. — Criminal Revision No. 129 of 2003 is directed against the order dated 10.1.2003 passed by the learned S.D.J.M., Anandapur in G.R. Case No. 437 of 2002 (T.C. No.7 of 2002) rejecting the prayer of the petitioner for release of a motor-cycle under Section 457 of the Code of Criminal Procedure.

2. From the impugned order it appears that the said motor-cycle bearing registration No. OR-04-C-1061 had been used by the accused persons for transporting I.D. liquor in two plastic jars each containing 20 litres. The vehicle having been seized in connection with commission of offence under Section 47 (a) of the Bihar and Orissa Excise Act, the learned Magistrate rejected the petition on the ground that the Criminal Court had no jurisdic¬tion to entertain the application under Section 457, Cr.P.C. for release of the vehicle.

3. Criminal Revision No. 150 of 2003 is directed against the order dated 16.1.2003 passed by the learned J.M.F.C., Sohella in 2(a) C.C. No. 61 of 2002 (Crl.Tr. No. 299/2002) rejecting the prayer of the petitioner for release of a truck bearing registra¬tion No. M.P. 09-KB-5772 since the vehicle was used for commis¬sion of the offence under Section 47(a) of the Bihar and Orissa Excise Act and found carrying I.M.F.L. liquor. The learned Magis¬trate rejected the petition on merit.

4. In course of hearing of the revisions, it was contended by the learned counsel for the petitioners appearing in both the cases that though a Division Bench of this Court in the case of Rajat Kumar Pattnayak v. State of Orissa* reported in (2003) 24 OCR 426 has held that Section 457 of the Code of Criminal Procedure shall have no application in cases where the vehicle is seized on the ground that it was used for commission of offence under the Bihar and Orissa Excise Act and that the Collector has the power to direct release of the vehicle, the Division Bench has not considered Section 66 of the Act and decide as to which Court will have the power to release a vehicle, if the owner thereof is not an accused in the case. Since both the revisions raise a common question of law, they were heard together.

5. In the case of Rajat Kumar Pattnayak (supra) the owner of the Maruti van bearing registration No. OR-K-7642 had ap¬proached the learned Magistrate for release of the vehicle under Section 457, Cr.P.C. The said petition was rejected since the vehicle was involved in commission of offence under Section 47 (a)/55 of the Bihar and Orissa Excise Act. The revision carried to the Sessions Court was also dismissed and thereafter an appli¬cation was filed by the owner under Section 482, Cr.P.C. for release of the vehicle. The Division Bench considering Sections 67 and 68 of the Bihar and Orissa Excise Act held as follows :

“A reading of Section 68 (1) (b) of the Bihar and Orissa Excise Act shows that the Collector or any Excise Officer so empowered in any case in which any property has been seized is liable to confiscation under Section 66 may at any time before the Magistrate has passed an order under Section 67, Sub-section (1), release the property on payment of any sum not exceeding the value thereof, as estimated by the Collector or such Excise Officer. Thus, the power to release the property seized as being liable to confiscation under Section 67 of the Bihar and Orissa Excise Act is vested in the Collector or any Excise Officer and not on the Magistrate because the Collector and such Excise Officer have been empowered to release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer. In view of the said special provision in Section 68 of the Bihar and Orissa Excise Act empow¬ering the Collector or Excise Officer to release the property seized as being liable to confiscation under Section 66 of the said Bihar and Orissa Excise Act, the Magistrate obviously has no power under Section 457 Cr.P.C. to release the property which is seized as being liable to