UMESH PATRA vs STATE OF ODISHA
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 28923 of 2026
CNR No.ODHC010669772026
(An application under Articles 226 and 227 of Constitution
of India)
Umesh Patra ....... Petitioner
- Versus-
State of Odisha
& Ors. ....... Opposite Parties
_______________________________________________________
For Petitioner : Ms. Namita Pattnaik, Advocate
For Opp. Parties : Mr. G. Mohanty, Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
06.11.2026.
SASHIKANTA MISHRA, J. The petitioner seeks to challenge the
order dated 13.08.2026 passed by the Commissioner of
Excise, Odisha, Cuttack, in Excise Appeal Case No.31 of
2025, whereby the appeal preferred by the petitioner against
the order dated 16.07.2025 passed by the Authorised
Officer-cum-Superintendent of Excise, Mayurbhanj, in
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Excise Confiscation Case No.01 of 2025-26, directing
confiscation of the vehicle bearing Registration No.OD-11-
AD-1256, was dismissed and consequently, the order of
confiscation was affirmed.
2. The facts of the case, briefly stated, are that the
petitioner is the registered owner of a Maruti Suzuki Celerio
ZLX bearing Registration No. OD-11-AD-1256, purchased
with bank finance. On 11.04.2025, while he was driving the
vehicle near Gohira Bridge under Jamda Police Station,
Excise officials intercepted it and on search, found two bags
containing 68 PET bottles of alleged non-duty-paid Indian-
made foreign liquor, measuring approximately 51 litres, from
the rear dicky.
Pursuant to the seizure, P.R. No.03 of 2025-26
was registered and confiscation proceedings were initiated
under Section 71 of the Odisha Excise Act, 2008. The
Authorised Officer-cum-Superintendent of Excise,
Mayurbhanj, by order dated 16.07.2025 in Excise
Confiscation Case No.01 of 2025-26, ordered confiscation of
the vehicle. The petitioner's appeal was dismissed by the
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Commissioner of Excise on 02.12.2025. The petitioner
thereafter filed W.P.(C) No.37604 of 2025, which was
disposed of on 09.02.2026 by remitting the appeal to the
Commissioner of Excise for fresh consideration, after
hearing the parties and by passing a reasoned order. On
rehearing, the Commissioner, passed order dated
13.08.2026, again dismissing the appeal. Said order is
impugned in the present writ application.
3. Counter affidavit has been filed by the
Superintendent of Excise, Mayurbhanj stating that the
petitioner has an alternative statutory remedy of revision
under Section 6(3) of the Odisha Excise Act, 2008 against
the impugned order. On merits, it is stated that the vehicle
was being driven by the petitioner when the intoxicants were
recovered from its rear dickey and he failed to establish that
the vehicle had been used without his knowledge or
connivance or any reasonable and necessary precautions
had been taken against such use.
4. Rejoinder has been filed by the petitioner in
reply to the Counter stating that the petitioner's signature
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on the seizure list cannot, by itself, be treated as an
admission of knowledge of the contents of the bags and the
chemical examination of the seized substance does not
establish such knowledge.
5. Heard Ms. N. Pattnaik, learned counsel for the
petitioner and Mr. G. Mohanty, Standing Counsel for the
State.
6. Ms. Pattnaik would argue that impugned order
has been passed without proper compliance with the
directions issued by this Court in W.P.(C) No.37604 of 2025.
She submits that the Commissioner has failed to consider
the petitioner's specific defence that the bags belonged to the
co-passenger, Kartika Gope, and the petitioner had no
knowledge of their contents. She also submits that the
Chemical Examination Report was produced during the
appellate proceedings and its subsequent production does
not cure the deficiencies in the confiscation proceeding. She
also argues that the mere recovery of the alleged intoxicants
from the vehicle and the petitioner's signature on the seizure
list do not, by themselves, establish his knowledge or
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connivance. The Commissioner has also failed to consider
the statutory requirements under Section 71 of the Odisha
Excise Act, 2008, and the previous excise cases, which are
stated to have ended in acquittal, cannot be relied on to
sustain the confiscation.
7. Per contra, Mr. G. Mohanty submits that the
Commissioner, pursuant to the remand order dated
09.02.2026, afforded opportunity of hearing to the parties
and passed a reasoned order after considering the
circumstances of the seizure, the nature and quantity of the
seized intoxicants, and the petitioner's defence. He argues
that the petitioner was driving the vehicle when 51 litres of
the intoxicants were recovered from its rear dickey and he
failed to establish that the vehicle had been used without his
knowledge or connivance or any reasonable and necessary
precautions had been taken against such use, as required
under Section 71(5) of the Act.
8. It would first be apposite to refer to Section 71
of the Odisha Excise Act, 2008, which provides for seizure of
property liable to confiscation and prescribes the procedure
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to be followed by the authority before passing order of
confiscation. Section 71 reads as follows: -
“Section 71 - 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 intoxicant which is liable to seizure under clause (a)
and the receptacles, packages and coverings in which any
such intoxicants as aforesaid, or any such materials, stills,
utensil, implement or apparatus as aforesaid, is found and
the other contents, if any, of such receptacles or packages,
and the animals, carts, vessels, rafts, vehicles or other
conveyances used in carrying the same, shall likewise be
liable to seizure.
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(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 the 'authorized officer').
(3) Where the Collector or the authorized officer seized any
property under sub-section (1) or where the property seized is
produced before him under sub-section (2) and he is satisfied
that an offence under this Act has been committed in respect
thereof, he shall, without prejudice to any other punishment
to which the offender is liable under this Act, order
confiscation of the property so seized or produced together
with all other materials, articles, vehicles or conveyances
used in committing such offence, whether or not a
prosecution is instituted for the commission of such an
offence.
(4) No order confiscating any property shall be made under
sub-section (3) unless the person from whom the property is
seized is given?
(a) a notice in writing informing him of the grounds on which
it is proposed to confiscate such property;
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(b) an opportunity of making a representation in writing
within such reasonable time as may be specified in the
notice; and
(c) a reasonable opportunity of being heard in the matter.
(5) Without prejudice to the provisions of sub-section (4), no
order of confiscation under sub-section (3) of any articles,
materials, vehicles or conveyances shall be made if the
owner thereof proves to the satisfaction of the Collector or the
authorized officer, as the case may be, that it was used
without his knowledge or connivance or the knowledge or
connivance of his agent, if any, or the person in charge of
such property, in committing the offence and that each of
them had taken all reasonable and necessary precautions
against such use.
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(13) The Collector or the authorized officer shall, for the
purposes of this Act, have the same powers as are vested in
the Civil Court under the Code of Civil Procedure, 1908(5 of
1908), while making inquiries under this section in respect of
the following matters namely:--
(a) receiving evidence on affidavit;
(b) summoning and enforcing the attendance of any person
and examining him on oath; and
(c) compelling the production of documents.”
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9. A plain reading of Section 71(1) of the Act
indicates that where there is reason to believe that an
offence under the Act has been committed, the intoxicants,
materials, vehicles or other conveyances used in committing
such offence may be seized by the authorities. However, the
power of seizure under sub-section (1) is distinct from the
power of confiscation under sub-section (3), which requires
the Collector or the authorised officer to arrive at the
satisfaction that an offence under the Act has been
committed in respect of the property seized or produced
before him. While seizure is an interim measure based on
the reason to believe, confiscation entails deprivation of
property and can be ordered only on fulfilment of the
conditions prescribed under the Act.
10. An order of confiscation results in deprivation of
a citizen's property and, therefore, the power must be
exercised strictly in accordance with law. Article 300-A of
the Constitution of India mandates that no person shall be
deprived of his property save by authority of law. Thus, mere
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seizure of a vehicle in connection with an alleged excise
offence cannot, by itself, justify its confiscation. The
competent authority must satisfy itself that the conditions
under Section 71 have been fulfilled by recording reasons.
The requirement of independent satisfaction under Section
71(3) is, therefore, fundamental, as it constitutes the legal
basis for depriving the owner of his property.
11. In the present case, the circumstances leading
to the seizure of the vehicle have been documented in Form
C-2, pursuant to P.R. No.03 of 2025-26 dated 11.04.2025.
Said seizure document bears the signatures of the official
witnesses, namely, Binay Prakash Tirkey, Inspector of
Excise, Rairangpur Range; Bipalab Kumar Malik, E/C,
Rairangpur Range; Arun Kumar Muduli, E/C, Rairangpur
Excise Station; and one Rameshwar Mohanta of village
Kanki. The signatures of the petitioner and the co-accused
also appear in the said document. Subsequently, Form C-5
and other connected records were prepared in relation to the
seizure by the officer who conducted the search and seizure.
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12. The seizure of the vehicle gives rise to a criminal
proceeding and a confiscation proceeding. It is, however,
well evident from the scheme of Section 71(3) that the
confiscation proceeding is independent of the criminal
prosecution, as the authority is empowered to order
confiscation whether or not a prosecution has been
instituted in respect of the offence. Therefore, the outcome of
the criminal proceeding, whether by way of conviction or
acquittal, would not, by itself, determine the issue of
confiscation. The competent authority is required to
independently examine the materials placed before it and
arrive at the satisfaction contemplated under Section 71(3)
of the Act.
13. Perusal of the impugned order shows that the
vehicle was produced before the authorised officer under
Section 71(2) of the Act. The question is therefore, whether
the Commissioner independently examined the materials on
record and arrived at the requisite satisfaction under Section
71(3) before affirming the confiscation.
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14. The satisfaction required under Section 71(3) is
a statutory precondition to confiscation and cannot be
presumed only from the seizure of the property or the
opinion of the seizing officer. The competent authority must
independently examine the materials and arrive at its own
satisfaction. This Court, in its earlier order in W.P.(C)
No.37604 of 2025, had noticed the deficiency in
consideration of this requirement and remitted the matter to
the Commissioner for fresh consideration in accordance with
Section 71(3).
15. However, the impugned order dated 13.08.2026
substantially relies on the seizure records and reports of the
seizing officer, particularly the recovery of 68 PET bottles
containing approximately 51 litres of alleged non-duty-paid
IMFL from the rear dickey and the fact that the petitioner
was driving the vehicle. Though relevant, these
circumstances have not been subjected to adequate
independent assessment nor does the order examination of
the seizure witnesses was done. The petitioner's defence that
the bags belonged to co-passenger Kartika Gope, who had
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requested for a lift representing that they contained
marriage articles, has not been properly examined against
the materials on record.
16. This Court is conscious of the fact that Section
71(13) of the Act does not make the examination of every
seizure witness mandatory in each and every confiscation
proceeding. However, the said provision confers on the
Collector or the authorised officer the powers of a Civil Court
for the purpose of conducting an inquiry, including the
power to summon and examine witnesses and receive
evidence. These powers assume significance where the
owner disputes the circumstances of recovery and
specifically denies knowledge of the contents of the bags
allegedly carried in the vehicle, thereby raising a specific
factual defence requiring consideration. In such
circumstances, the authority is required to consider whether
examination of the relevant witnesses is necessary to
ascertain the circumstances of recovery and test the owner's
defence. This is because Section 71(5) of the Act places the
burden on the vehicle owner to establish that the vehicle
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was used without his knowledge or connivance, or that of
his agent or the person in charge thereof, and that
reasonable and necessary precautions had been taken
against such use. The authority must, therefore, first
examine the circumstances establishing the alleged use of
the vehicle and thereafter consider the owner's defence. In
the present case, the petitioner’s defence is that the two
bags belonged to co-passenger Kartika Gope, who had
requested a lift and represented that they contained
marriage articles, and that he himself was unaware of their
actual contents. This defence required consideration in light
of the evidence available on record. The object of Section
71(13) would be frustrated if the authorised officer were to
pass an order of confiscation on the basis of the seizure
records, while placing the burden on the owner to establish
his bonafides without considering whether further evidence
was necessary. In the present case, even the official seizure
witnesses were not examined, although their evidence could
have assisted in ascertaining the circumstances in which the
vehicle was allegedly used in the commission of the offence
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and whether the petitioner had knowledge of the contents of
the bags. This is particularly significant because the
petitioner's mere signature on the seizure list cannot, by
itself, be treated as an admission of knowledge of the
contents of the bags or connivance in their transportation.
The evidentiary value of such signature was required to be
assessed along with the other circumstances of the case.
The burden under Section 71(5), therefore, cannot dispense
with the statutory obligation of the authority to
independently examine the materials and arrive at the
satisfaction contemplated under Section 71(3). Further, the
Chemical Examination Report may establish the nature and
composition of the seized substance, but cannot, by itself,
establish the petitioner's knowledge or involvement in its
transportation. Since the petitioner contends that the report
was introduced during the appellate proceeding, the
Commissioner was also required to afford him a reasonable
opportunity to examine and controvert the same before
placing reliance on it. Thus, the seizure records, the
Chemical Examination Report and the petitioner's specific
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defence were required to be assessed together, with such
further inquiry as the circumstances warranted, before
imposing the consequence of confiscation
17. Another significant aspect of the matter is the
following observation made by the Commissioner in the
impugned order that:
“The absence of an independent witness does not by itself
render the evidence of departmental officials unreliable. The
credibility of official witnesses is required to be assessed on the
basis of consistency and reliability of the contemporaneous
records. The seizure documents and other records have therefore
been independently examined while considering the evidentiary
value of the materials on record.”
The aforesaid observation shows that the Commissioner
claims to have assessed the credibility of the departmental
officials on the basis of the consistency and reliability of the
contemporaneous records. However, on a perusal of the
impugned order, this Court is unable to discern the actual
assessment undertaken in that regard. The Commissioner
has not identified the material circumstances which lend
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assurance to the version recorded by the seizing officer as no
examination of witnesses was conducted, nor has he
explained how the petitioner's specific objections to the
circumstances of recovery were evaluated. The conclusion
that the records have been examined cannot substitute
reasons demonstrating such examination. A quasi-judicial
authority is required to disclose the reasoning which
connects the materials available on record with the
conclusion arrived at.
18. It is also relevant to notice that the earlier order
of this Court had specifically taken note of the deficiency in
the confiscation order concerning the reliance placed on the
report of the investigating/seizing officer and the absence of
adequate discussion regarding the satisfaction required
under Section 71(3). The remand was intended to ensure
that the Commissioner undertook a fresh and meaningful
consideration of the matter in accordance with the statutory
requirements. However, even in the present proceeding, the
Commissioner has substantially relied upon the seizure
records, including Form C-2 and Form C-5, and other
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reports prepared by the same officer, without demonstrating
any further meaningful inquiry into the disputed
circumstances. The fact that the Commissioner has
elaborately discussed the petitioner's submissions would
not, by itself, amount to compliance with the earlier
direction if the fundamental deficiency noticed by this Court
remains unaddressed.
19. The Commissioner, while passing the impugned
order dated 13.08.2026, failed to independently assess the
materials on record, the petitioner's specific defence and the
necessity of further inquiry, as required under Section 71(3)
of the Odisha Excise Act, 2008. The impugned order,
therefore, does not conform to the principles of natural
justice, which encompass the right to a fair and meaningful
investigation and inquiry. Since the fundamental
requirement of fairness in any proceeding has been vitiated
by the non-examination of witnesses, this Court deems it
appropriate not to remit the matter for fresh consideration
and to quash the confiscation proceedings.
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20. In the result, the order dated 13.08.2026
passed by the Commissioner of Excise, Odisha, Cuttack, in
Excise Appeal Case No.31 of 2025, as well as the order dated
16.07.2025 passed by the Authorised Officer-cum-
Superintendent of Excise, Mayurbhanj, in Excise
Confiscation Case No.01 of 2025-26, directing confiscation
of the vehicle bearing Registration No. OD-11-AD-1256, are
hereby set aside. Consequently, the confiscation proceedings
initiated in respect of the aforesaid vehicle stand quashed.
The competent authority is directed to take necessary steps
for release of the vehicle in favour of the petitioner.
…..……….…………….
Sashikanta Mishra
Judge
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
A.K.Behera
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 06-Nov-2026 15:41:05
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