ORDER
1. This matter was listed today under the heading 'To be mentioned'.
2. This Criminal Revision was also referred to us along with Criminal Revision No. 129 of 2003 by the learned Single Judge on point as to whether the Magistrate in some cases can release any property seized for an offence under the Bihar and Orissa Excise Act, 1915 under Section 457 of the Code of Criminal Procedure, 1973. We have delivered a separate judgment today in Criminal Revision No. 129 of 2003 (Soubhagya Kumar Panda v. State of Orissa)* answering the aforesaid question of law.
3. Paragraphs 6 and 7 of the said judgment delivered today in Criminal Revision No. 129 of 2003 are quoted herein below :
'6. The relevant portions of Sections 66, 67, 68, 70 and 85 of the Act are quoted herein below :
66. What things are liable to confiscation: - (1) Whenever an offence has been committed which is punishable under this Act, the intoxicant, materials, still, utensil, implement and apparatus in respect of or by means of which such offence has been committed shall be liable to confiscation.
(2) Any intoxicant lawfully imported, transported, manufactured in possession or sold along with, or in addition to : any intoxicant which is hable to confiscation under Sub-section (1).
xx xx xx and the animals, carts, vessels, rafts or other conveyance used in carrying the same,shall likewise be liable to confiscation :
Provided that no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence.
67. Confiscation by Magistrate or Collector :- (1) When, in any case tried by him, the Magistrate decides that anything is liable to confiscation under Section 66, he may either order confiscation or give the owner of such thing an option to pay, in lieu of confiscation, such fine as the Magistrate thinks fit.
(2) xx xx xx 68. Power to compound offences and to release property liable to confiscation :- (1) The Collector or any Excise Officer specially empowered by the State Government in this behalf, not below the rank of Deputy Collector or Superintendent of Excise -
(a) xx xx xx (b) in any case in which any property has been seized as being 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.
(2) xx xx xx 70. Power to arrest without warrant, to seize articles liable to confiscation and to make Searches :- Any of the following persons, namely, -
(a) any officer of the Excise, Police, Salt, Customs or Land-revenue Department, or
(b) any person empowered
may, subject to any restrictions prescribed by the State Government by rule made under Section 89,-
(i) xx xx xx (ii) seize and detain any article which he has reason to believe to be liable to confiscation, under this Act or any other law for the time being in force relating to the excise-revenue; and
(iii) xx xx xx 85. Application of certain provisions of the Code of Criminal Procedure, 1898 :- (1) Save as in this Act otherwise expressly provided, the provisions of the Code of Criminal Procedure, V of 1898. relating to arrests, detentions in custody. searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply, so far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under this Act.
(2) and (3) xx xx xx'7. It will be clear from the provisions of Section 66 quoted above that not only the intoxicant being transported in a conveyance is liable to confiscation but also the conveyance used in carrying the same is liable to confiscation under Section 66 of the Act. But the Proviso to Section 66 quoted above 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. Relevant portion of Section 70 of the Act quoted above would further show that any of the officers named therein including a police officer may seize and detain any article 'which he has reason to believe to be liable to confiscation' under the Act or any other law for the time being in force relating to the excise-revenue. Where therefore a conveyance such as a motor- cycle is used in carrying an intoxicant but the police has the reason to believe that the owner of the conveyance is not implicated in the commission of the offence, such a conveyance is not liable to confiscation and the seizure is not under the said provision of Section 70 of the Act of an article liable to confiscation under Section 66 of the Act. A plain reading of Section 68(l)(b) shows that it is only in a case in which a property has been seized as being liable to confiscation under Section 66 that the Collector or any Excise Officer specially empowered by the State Government in that behalf can release the said property any time before the Magistrate passes an order under Section 67(1). Thus, if a conveyance such as a motor-cycle is not liable to confiscation under Section 66 on account of the fact that according to investigation made by the police, the owner of the conveyance is not implicated in the commission of the offence, the Collector will have no power to pass orders for release of such conveyance as the same is not liable to confiscation under Section 66. Relevant portion of Section 85 of the Act quoted above shows that the provision of the Cr.P.C, relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply, as far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under the Act. But this is not to say that no other provisions of the Cr. P.C. will apply to inquiry and trials in respect of the offences under the Act. Sections 4 and 5 of the Cr.P.C. are quoted herein below :
4. TRIAL OF OFFENCES UNDER THE INDIAN PENAL CODE AND OTHER LAWS :- (1) All Offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. SAVING - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
A plain reading of Sub-section (2) of Section 4 of the Cr.P.C. makes it clear that all offences under any law other than the Indian Penal Code, shall be investigated, inquired into, tried, arid otherwise dealt with according to the provisions of the Cr.P.C, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr.P.C. quoted above, however, provides that nothing in the Cr.P.C. shall, in the absence of any specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power sonferred, or any special form of procedure prescribed, by any other law for the time being in force. Thus, the provisions of the Cr.P.C. relating to investigation, inquiry, trial etc. also apply to offences under the Act subject to special provisions made in the Act. Conversely, the provisions of the Act including provisions vesting special jurisdiction or power will override the general provisions in the Cr.P.C. in the absence of specific provisions to the contrary. But if the provisions of the Act do not make any specific provision or do not vest any special jurisdiction or power or lay down any special form of procedure, the general provisions of the Cr.P.C. including jurisdiction and powers vested in the Magistrate will apply even to offences under the Act. Since the power of the Collector or the Excise Officer to release a property pending final orders by theMagistrate under Section 67(1) of the Act is confined to only property seized as liable to confiscation under Section 66 of the Act and does not extend to the property which is not seized as liable to confiscation, the Magistrate will have the powers under Sections 451 and 457 of the Cr.P.C. to deal with such property not liable to confiscation in the manner indicated in the said provisions of Sections 451 and 457 of the Cr.P.C.'
4. It is stated by the learned counsel for the petitioner that in this case prosecution report has been submitted by the Excise Authorities and in the said prosecution report, the petitioner has not been implicated in the excise offence. We are not in a position to know from the impugned order dated 16.01.2003 as to whether in the prosecution report submitted by the Excise Authorities, the petitioner who is the owner of the seized truck bearing registration number MP-09-KB-5722 is implicated in the excise offence.
5. In view of the law laid down by us in our judgment in Criminal Revision No. 129 of 2003 quoted above, we quash the impugned order dated 16.1.2003 passed by the learned J.M.F.C., Sohella and direct that the Magistrate will apply his mind to the prosecution report submitted by the Excise Authorities and if he finds that according to the case of the Excise Authorities in the prosecution report, the owner of the truck is not implicated in the commission of the offence, he will pass orders for release of the truck subject to such terms and conditions as he may deem fit and proper under Section 457 of the Cr.P.C. On the other hand, if the learned Magistrate finds from the prosecution report that the owner of the truck is implicated in the commission of the offence, he will not release the said truck under Section 457 of the Cr.P.C. and the petitioner may move the Collector or the Excise Officer authorized in that behalf under Section 68(l)(b) of the Act for release of the truck pending final orders to be passed by the Magistrate under Section 67(1) of the Act.
The Criminal Revision accordingly stands disposed of.