JUDGMENT

S.K. MISHRA, J. - The petitioner, in this application under Section 482 of Cr.P.C. has assailed the order passed by the learned S.D.J.M., Boudh on 29.03.2018 in Misc. Case No.17 of 2018 arising out of 2 (a) C.C. No.14 of 2018 thereby rejecting application filed by the petitioner under Section 457 of Cr.P.C. seeking the interim release of vehicle bearing

Registration No.OD-27-8277 in favour of the petitioner, who happens to be the owner of the vehicle.

2. It is alleged by the prosecution that on 13.03.2018 the Sub-Inspector of Excise, Harbhanga arrested one Jitendra Kumar Mishra, who is driver of the vehicle and recovered 24 liters of Beer and 8,640 liters of I.M.F.L kept in a paper cartoons and a case under Section 52 (a) (i) of the Odisha Excise Act, 2008 was initiated. The Sub-Inspector of “Excise also seized the aforesaid vehicle. The seized vehicle is in the custody of the said officer.

3. It is claimed by the petitioner that he being the owner of the vehicle had no idea of the alleged crime. The owner is neither arrayed as an accused nor allegation has been levelled against her by the Excise Department in the prosecution report submitted.

4. It is also argued by the learned counsel for the petitioner that the vehicle is kept in open condition and it may be decayed due to vagaries of nature and unless it is left in zima of the present petitioner, the vehicle will be damaged and it will be against the ratio decided by the Hon’ble Supreme Court in the case of Sundarbhai Ambala Desai Vs. State of Gujurat, (2003) 24 OCR (SC) 444. The Hon’ble Supreme Court in very clear term has laid down that the vehicle seized by the investigating Agency like Police should not be kept in open space in Police Station premises, which may be exposed to rain and sun. Therefore, directions were issued that such application shall be disposed of as expeditiously as possible.

5. The learned Counsel for the petitioner, Mr. Panda developing his argument relying upon the reported case of Sk. Nur Hosen Vs. State of Orissa, 2014 (Supplementary-I) OLR 569, wherein this Court, a case involving alleged violation of the provisions of the Bihar and Orissa Excise Act, 1915 was considered land taking into consideration and relying upon the judgment of the Division Bench of this Court in the case of Soubhagya Kumar Panda Vs. State of Orissa (2003) 25 OCR 840, held that the provision of Section 66 of the Bihar and Orissa Excise Act shows that unless the owner of the conveyance is proved to have been implicated in the commission of the offence, the conveyance even though used in carrying the intoxicant will not be liable to confiscation. However, in the meantime, the Orissa Excise Act, 2008 has come into force with effect from 1st April, 2017 and the present case arises out of a criminal proceeding for punishable under Section 52 of the Orissa Excise Act, 2008. The Orissa Excise Act was passed by the Assembly in the year, 2008. Section 1 of the said Act provides that it shall come into force on such date as the State Government may by notification, appoint and the State Government published it in the Official Gazette on 10.03.2017 i.e. almost after nine years of the Assembly passing the Act. The law relating to confiscation and interim release of vehicle has been made stringent. It is appropriate to take note of Section 71 of the Orissa Excise Act, it reads as follows :

“Seizure of property liable to confiscation - (1) (a) When there is reason to believe that any offence under this Act has been committed, the intoxicant, materials, stills, utensils, implements, apparatus, receptacles, package, coverings, animals, carts, vessels, rafts, vehicles, or any other conveyances or articles or materials used in committing any such offence may be seized by the Collector or any officer of the Excise, Police, Customs or Revenue Departments.

(b) any intoxicant lawfully imported, transported, manufactured in possession or sold along with, or in addition to any intoxic