Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 517 (ORI)

ITC limited v. State of Orissa

2004-12-01

R.N.BISWAL

body2004
JUDGMENT R. N. BISWAL, J. — In this revision the petitioner has assailed the legality and propriety of the order dated 10.11.2004 passed by the J.M.F.C., Khallikote in Misc. case No.83 of 2004 arising out 2(C) CC case No.7/2004 wherein he rejected the peti¬tion under Section 451 Cr.P.C. filed by the petitioner. 2. The petitioner-Company through its Executive, Finance Mr. Ritobrata Chakravorty filed the petition under Section 451 Cr.P.C. before the Court below with a prayer to release 400 cartoons of cigarette to the Company or in the alternative re¬lease the entire consignment in favour of the transporter M/s. Indian Roadways Corporation Limited. As per the case of the petitioner it is a company within the meaning of the Companies Act 1956 having is registered office at Jawaharlal Nehru Road, Kolkata inter alia engaged in the business of production of cigarette. One of the units of the petitioner-Company situates at Munger in the State of Bihar. On 4.9.2004 the petitioner-company entrusted 400 cartoons of cigarette to M/s. Indian Roadways Corporation Limited one of its authorized transporters to be transported from Munger to Tirupati. While the said goods were being carried in Truck bearing No.WB-11-7775 on the way it was alleged that the vehicle dashed against the railway gate at Rambha. So the truck along with the 400 cartoons of cigarette was seized and a case under Section 160 (2) of the Railways Act, 1989 was registered against the driver of the vehicle on the complaint made by the Assistant Sub-Inspector of Railway Protection Force. As per the petition the truck along with the 400 cartoons of cigarette has been kept in the police station. If the cigarettes are allowed to be kept there any further then the flavor of the cigarette would be reduced and the same would be decayed. 3. No objection was filed on behalf of the State. Learned J.M.F.C., Khallikote after hearing learned counsel for the peti¬tioner rejected the petition holding mainly that there is no sufficient material to hold that Mr. Chakravorty is entitled to the possession of the seized cigarette. Being aggrieved with this order the petitioner has preferred the revision before this Court. 4. Admittedly the seized goods had not been produced before the trial Court and no enquiry or trial had commenced by the time the petition under Section 451 Cr.P.C. was filed before it. Chakravorty is entitled to the possession of the seized cigarette. Being aggrieved with this order the petitioner has preferred the revision before this Court. 4. Admittedly the seized goods had not been produced before the trial Court and no enquiry or trial had commenced by the time the petition under Section 451 Cr.P.C. was filed before it. So, learned counsel appearing for the petitioner requested that to do complete justice to the parties the petition should be treated as a petition under Section 457 Cr.P.C. instead of one under Section 451 Cr.P.C. Procedural law is not an obstruction but an aid to justice. However, where non-compliance of the procedure would prejudice in doing justice to parties, the rule is mandatory. In the present case if the petition under Section 451 Cr.P.C. is treated as one under Section 457 Cr.P.C. it would not prejudice either of the parties. Hence, the petition filed under Section 451 Cr.P.C. before the Court below is treated as a petition under Section 457 Cr.P.C. As per the petition there is a unit of the petitioner-Company at Munger. The copy of the con¬signment note (Annexure-1) and copies of the road challans (Annexure- 2 series) show that 400 cartoons of cigarettes were loaded on 4.10.2004 at Munger on the aforesaid truck to be deliv¬ered at Tirupati. Shri Chakravorty said to be the Finance Execu¬tive of I.T.C. Limited, Vizaak Branch, has been authorized by the Branch Manager to collect the stocks of I.T.C. Limited which was entrusted to Indian Roadways Company Limited for transportation from Munger to deliver at Tirupati under invoice No.85110725 dated 4.9.2004 in truck No.WB-11-7775. 5. It is not out of place to mention here that the Indian Roadways Transport Company had also filed a petition before the Court below for release of the seized cigarette in its favour and when it was rejected preferred a revision before this Court vide Criminal Revision No.785 of 2004. A memo was filed on behalf of the counsel engaged by the said Company not to press that revi¬sion and as such the same was dismissed as not pressed. So it appears that Indian Roadways Company has no objection if the seized cigarettes are released in favour of the present petition¬er. In the case at hand as mentioned earlier the alternative prayer of the petitioner is to release the seized cigarette in favour of the Indian Roadways Company. So it appears that Indian Roadways Company has no objection if the seized cigarettes are released in favour of the present petition¬er. In the case at hand as mentioned earlier the alternative prayer of the petitioner is to release the seized cigarette in favour of the Indian Roadways Company. There is no other rival claimant to the said goods. 6. Admittedly the offence alleged to have been committed is under Section 160(2) of the Railways Act,1988, which reads as follows :- “If any person breaks any gate or chain or barrier set up on either side of a level crossing which is closed to road traffic, he shall be punishable with imprisonment for a term which may extend to five years.” If the driver who has been arrayed as the sole accused is found guilty under the said section, he shall be punished with imprisonment for a term, which may extend to five years. Neither the Indian Roadways Company nor the petitioner-Company shall in any way be liable for the offence. Retention of the cigarette in police custody would no way help the prosecution. It is not a case where the seized cigarette will be liable for confiscation. Admittedly the goods have been seized on 8.10.2004. In the mean¬time near about one and half months have already been elapsed. If the same is continued to be kept in a stranded truck naturally the flavor thereof would vanish and the same would be decayed. So in my view the trial Court ought to have released the seized cigarette subject to furnishing security. The coast of the seized cigarette as found from the record is Rs.47,05,674/-. 7. Therefore, the criminal revision is allowed and the impugned order dated 10.11.2004 passed by the learned J.M.F.C., Khallikote is set aside. The seized cigarette shall be released in favour of the petitioner on furnishing bank security of Rs.50,00,000/- to the satisfaction of the J.M.F.C., Khillikote. Since the cigarettes are susceptible to decay, the petitioner-Company is at liberty to dispose of the same. Crl. Revision allowed.