The main legal point established is that the Magistrate has the power to release seized property under Secs.451 or 457 of the Cr.P.C. if no confiscation proceeding has been initiated and the owner is not implicated as an accused.

JUDGMENT

B.P. Routray, J. - By way of a petition under Sec.482 of Cr.P.C., the petitioner has challenged the order dated 01.10.2020 passed by the learned Sessions Judge, Kendrapara in Criminal Revision No.21 of 2020 wherein the prayer of the petitioner to release his vehicle under Sec.457 Cr.P.C. has been refused as involved in commission of offences under Secs.188/269/270/34, I.P.C. and Sec.52(a) of the Odisha Excise Act.

2. The facts reveal that on 16.07.2020, the S.I., Aul Police Station detected the vehicle, i.e., Hero Glamour motorcycle bearing Regd. No.OD-29-G-0819 transporting contraband liquor by the accused persons, namely, Rashmikanta Behera and Priyabrata Sahoo, the present petitioner. As such, the contraband was seized along with the vehicle and the accused persons were arrested. After the chargesheet was submitted for the aforesaid offences, a petition under Sec.457 of the Cr.P.C. was moved with a prayer to release the vehicle. This was rejected by the learned J.M.F.C., Aul. Thereafter, the petitioner filed criminal revision petition before the learned Sessions Judge, Kendrapara, which was also rejected by the learned Sessions Judge. This is impugned in the present petition.

3. It is submitted by learned counsel for the petitioner that the petitioner is the owner of the vehicle in question and since no confiscation proceeding as contemplated under the Odisha Excise Act has been initiated yet, his vehicle should be released and the learned Sessions Judge has committed illegality on this aspect.

4. It is seen from the order impugned under Annexure-3 that the learned Sessions Judge while saying that, though no confiscation proceeding has been initiated yet the petitioner being an accused for offence under Sec.52(a) of the Odisha Excise Act, the seized motorcycle is liable for confiscation by the appropriate authority as per the provision of Sec.71(3) of the Odisha Excise Act. To support his reasoning to not release the vehicle, learned Sessions Judge has relied on a decision of this Court reported in (E. Ankuda Patro vs. State of Orissa,2006 Supp1 OrissaLR 252).

5. Perusal of the said decision of this Court as relied on by the learned Sessions Judge, it is seen that the learned Single Judge in a case of release of vehicle concerning the offences under the Old Bihar and Orissa Excise Act, 1915, by relying on a decision of the Division Bench of this Court reported in (Soubhagya Kumar Panda vs. State of Orissa, (2003) 25 OCR 840) has refused to release the vehicle by saying that, the Division Bench in the aforestated case have made a distinction as to in what type of cases the provision under Secs.66 and 68 of the Bihar and Orissa Excise Act, 1915 is invokable and where it is excluded, speaks in one category that where the Magistrate is found to be competent to consider such matter when the vehicle was used not by the owner of the vehicle and there is no allegation of connivance of the owner for such illegal use of the vehicle, and by applying the same analogy since the petitioner therein was the owner of the vehicle which was allegedly carrying the seized whisky bottles, therefore the Magistrate's jurisdiction is excluded because the Collector and the Excise Officer have the jurisdiction either to compound under Sec.66 of the Bihar and Orissa Excise Act, 1915 and the matter relating to interim custody is to be considered in such forum. It is further seen that the Division Bench of this Court to which the learned Single Judge has relied on the case of E. Ankuda Patro (supra), have made an elaborate discussion of concerned provisions including Secs.66 and 68 of the erstwhile Bihar and Orissa Excise Act and observed that since the owner of the conveyance is not implicated in commission of the offence under the Bihar and Orissa Excise Act, 1915, the Collector will have no power to pass orders for release of such conveyance as the same is not liable to confiscation under Sec.66 of the Bihar and Orissa Excise Act, 1915.

The Divis