Prof. I. Ravi Kumar vs. State Of Odisha
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Cause title — parties, addresses and appearances
ORDER 10.01.2024
1. This matter is taken up through hybrid mode.
Heard Mr. G. Sahu, learned counsel for the petitioner and Mr. D. Nayak, learned Addl. Govt. Advocate for the State.
This is an application under Section 401 of Cr.P.C. to set aside the order dated 26.03.2021 passed by the learned (GN) No.837 of 2020 corresponding to Rayagada P.S. Case No. 382 of 2020 registered for commission of offences punishable under Sections 13(2) and 18 of Cigarette & Other Tobacco Products Act, 2003 (in short “COTP Act”).
Mr. G. Sahu, learned counsel for the petitioner submits that the petitioner is the proprietor of a registered firm in the
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name and style of M/s. Maa Tarini Enterprises at Rayagada and is a bonafide trader of tobacco products vide R.C. No. 21ABSPI6896D2ZC and is allowed to purchase and sell the said tobacco products vide GSTIN/UIN- 21ABSPI6896D2ZC, Odisha Code No.
The petitioner has been dealing in the said products with due authorization vide the aforesaid registration certificate GSTIN/UIN-21ABSPI6896D2ZC and had purchased the tobacco products from the authorized persons and had paid the SGST 14%, CGST 14% and CESS 160%, 65%, 60% respectively besides the said purchase price and after purchase of such products he had stored the same in his business premises to deal with the same for sale in accordance with law. 70 packets Mausaji Bhanga and 30 packets Rocket Khaini, each bag containing 60 packets and each packet containing 16 small pieces were seized by the police on 28.11.2020 and since the date of seizure they are lying exposed to rain, light and dust and if this continues, then the said articles would become useless for consumption and in such an event the petitioner would be put to irreparable loss and damage. He also submits that as Section 13(2) and 18(1) of the COTP Act, the seized articles should have been released in his favour.
Mr. Nayak, learned Addl. Govt. Advocate submits that the chemical examination report has been received and it reveals
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that the Exts. A and B were found to contain nicotine and hence it is incriminatory but he fairly submits that the permission as required under the proviso of Sections 13(2) and approval as required under Section 18 of Cigarette & Other Tobacco Products (prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2013 has not been obtained from the District Judge within a period of 90 days. He files the copy of the chemical examination report, the same be tagged to the record.
Section 13(2) and 18 Proviso of the Cigarette & Other Tobacco Products (prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2013 which are relevant for deciding this application are extracted below:- “Section 13(2). No package of cigarettes or any other tobacco products or advertisement material seized under clause (a) of sub- section (1) shall be retained by the officer who seized the package or advertisement material for a period exceeding ninety days from the date of the seizure unless the approval of the District Judge, within the local limits of whose juri iction such seizure was made, has been obtained for such retention.” “Section 18(1). No order adjudging confiscation or directing payment of costs shall be made unless the owner or person in possession of the package of cigarettes or any other tobacco products
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has been given a notice in writing informing him of the grounds on which it is proposed to confiscate such package, and giving him a reasonable opportunity of making a representation in writing, within such reasonable time as may be specified in the notice, against the confiscation mentioned therein, and, if he so desires, of being heard personally or through a representative in the matter.
Provided that, where no such notice is given within a period of ninety days from the date of the seizure of the package of cigarettes or of any other tobacco products, such package shall be returned, after the expiry of that period, to the owner or the person from whose possession it was seized.
(2) xxx
xxx
xxx”
As approval from the District Judge has not been obtained as required by Section 13(2) and notice has not been given to the petitioner as required under Section 18(1) proviso, the seized Tobacco items are liable to be returned to the petitioner.
Considering the submissions made by the learned counsel for the respective parties and the fact that the Tabacco items have been seized on 28.11.2020 and as discussed above no approval from the learned District Judge has been obtained and no notice has been given to the petitioner, I am inclined to set aside the order dated 26.03.2021 passed by the learned // 5 //
(GN) No.837 of 2020 and direct for release of the Tobacco items i.e. 70 packets Mausaji Bhanga and 30 packets Rocket Khaini, each bag containing 60 packets and each packet containing 16 small pieces in favour of the petitioner subject to the conditions which may be fixed by the learned Court below.
The CRLREV is accordingly disposed of.
Urgent certified copy of this order be granted on proper application.
(Dr. S.K. Panigrahi)
Judge
Murmu
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