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2005 DIGILAW 121 (ORI)

Ranjita Rani Sahoo v. State of Orissa

2005-02-09

PRADIP MOHANTY

body2005
JUDGMENT PRADIP MOHANTY, J. — The petitioner is said to be the registered owner of the Maruti Van bearing registration No.OR 05 M 0561. She challenges the legality of the order dated 15.07.2004 of the J.M.F.C. (R), Cuttack in G.R. Case No.631 of 2004 reject¬ing her petition filed under Section 457 of the Cr.P.C. and the judgment dated 19.08.2004 passed by the learned Sessions Judge I/C, Cuttack in Criminal Revision No.53 of 2004 confirming the aforesaid order of the learned J.M.F.C. (R), Cuttack. 2. On 01.07.2004 near the O.T.M. Bazar of Coudwar the Tangi Police found the aforesaid vehicle transporting Aluminium Conduc¬tors weighing 3.10 quintals in violation of the provisions of the Orissa Electric Supply-Line Material (Unlawful Possession) Act, 1988 (for short, “the Act”). The materials were seized and Tangi P.S. Case No.88 of 2004 under Sections 379, 411 and 34, I.P.C. read with Sec.3 of the Act corresponding to the G.R. Case, re¬ferred to above, was initiated. Subsequently, on 01.07.2004 the vehicle in question was also seized. The petitioner filed a petition under Section 457 Cr.P.C. before the J.M.F.C.(R), Cut¬tack in the said G.R. Case for release of the vehicle in her zima. The learned J.M.F.C. after perusing the F.I.R. and other relevant record by his order dated 15.07.2004 rejected the prayer on the ground that since in view of the provisions of Section 7 of the Act, the Authorized Officer is empowered to initiate a confiscation proceeding, he has no jurisdiction to entertain the said application. Against that order, the petitioner preferred a revision before the learned Sessions Judge, Cuttack, which was registered as Criminal Revision No.53 of 2004. The learned Ses¬sions Judge, after hearing the parties, dismissed the revision and confirmed the order of the learned Magistrate holding that Section 6(3) of the Act ousts the jurisdiction of the Criminal Court to deal with the seized property as it provides that the police has no other option than to make over the property seized to the Authorised Officer notwithstanding anything contained in the Code of Criminal Procedure. Therefore, the Authorised Officer alone is competent to deal with the application for release of the seized property. 3. Learned counsel for the petitioner challenges the legality of the impugned orders contending that the special statute, namely, the Act, does not exclude the jurisdiction of the Criminal Court in the matter of release of seized property. Therefore, the Authorised Officer alone is competent to deal with the application for release of the seized property. 3. Learned counsel for the petitioner challenges the legality of the impugned orders contending that the special statute, namely, the Act, does not exclude the jurisdiction of the Criminal Court in the matter of release of seized property. Therefore, the Courts below committed gross illegality in reject¬ing the prayer for release of the seized vehicle. 4. Mr. Das, learned Additional Standing Counsel, on the other hand, contends that in view of the specific provisions in the Act, more particularly, Sections 6, 7 and 9 thereof, the jurisdiction of the Criminal Court must be held to be excluded in relation to matters for which provisions have been made in the special statute itself. 5. In support of his contention, learned counsel for the petitioner relies on a decision of this Court in Kailash Chandra Sahu -v- State of Orissa,* (2001) 20 OCR 341. In that decision, however, it has been held that the power to release the property lies with the Authorised Officer under Section 6(3) of the Act and the police authorities have no other option than to make over the property seized to the Authorized Officer notwithstanding anything contained in the Code of Criminal Procedure. Chapter-XXXIV of the Code of Criminal Procedure deals with disposal of the property. Sections 451 to 459 of the Cr.P.C. deal with the powers of the Court in the matter of disposal of proper¬ty. Any order to be passed by the Criminal Court in relation to disposal of property must be under one or the other of the afore¬said sections depending upon the facts and circumstances of the case. Section 451 enables a Magistrate to provide for interim custody of any seized property produced before him in course of an enquiry or trial. Section 452 provides for disposal after the trial or enquiry is over. Sections 453 to 456 relate to disposal of property whereas Section 457(1) applies to cases where the seizure of the property by a police officer is reported to a Magistrate, but the property is not produced before the Court during enquiry or trial. In such a case, the Magistrate has the power to pass an order regarding disposal of such property or delivery of the same to the person entitled to the possession thereof. In such a case, the Magistrate has the power to pass an order regarding disposal of such property or delivery of the same to the person entitled to the possession thereof. Section 458 provides the procedure where no claimant appears within six months and Section 459 empowers the Magistrate to sell the perishable property. All the above are provisions dealing with disposal of the property seized. Sections 6, 7 and 9 of the Act respectively deal with sei¬zure of electric supply-line materials, confiscation of seized articles and vesting of property. Section 8 of the Act provides for appeal against an order of confiscation made under Section 7. For ready reference, Sections 6,7,8 and 9 of the Act are repro¬duced below :- “6. Seizure of electric supply-line materials-(1) When it is reasonably suspected that an offence under this Act has been committed in respect of electric supply-line material, such supply-line material together with all tools, ropes, chains and any vehicles, vessels or other modes of conveyance used for transport of such supply-line material, may be seized by any officer of Gridco not below the rank of a Sub-divisional Officer (Electrical). (2) Every officer seizing any electric supply-line material or tools, chains, vehicles or other modes of conveyance under Sub-section (1) shall within seventy-two hours from the time of seizure, produce the property seized before the Authorised Offi¬cer of the area. All officers of the Gridco including the Author¬ised Officer when they seize any electric supply-line materials shall lodge informatin with the police along with a copy of the seizure list duly countersigned by the Authorised Officer without producing the seized material. (3) Every police officer seizing electric supply-line mate¬rial in connection with an offence suspected to have been committed under this Act shall, notwithstanding anything con¬tained in the Code of Criminal Procedure, 1973 (2 of 1974) for¬ward a copy of the seizure list to the Authorised Officer within seventy-two hours from the time of seizure and shall make over to the said Authorised Officer the seized property including the tools, chains, ropes, vehicles, vessels and other conveyances seized, for purpose of initiating confiscation proceeding under this Act. (4) The seizure list prepared for the materials or the tools, chains, vehicles and other modes of conveyance seized in course of search, shall be signed by the officer making the seizure and the witnesses present. (4) The seizure list prepared for the materials or the tools, chains, vehicles and other modes of conveyance seized in course of search, shall be signed by the officer making the seizure and the witnesses present. A report of seizure along with a copy of the seizure list so made shall be sent to the nearest Magistrate having jurisdiction to try any offence under this Act. 7. Confiscation of seized articles - (1) Where an Author¬ised Officer seizes any electric supply-line material or where any such electric supply-line material is produced before him or is made over to him by the Police, he shall, if he is satisfied that an offence under this Act has been committed in respect thereof, order the confiscation of the electric supply-line material to¬gether with all tools, ropes, chains, vehicles, vessels and other conveyances used in committing such offence within the prescribed time. Provided that no order confiscating any electric supply-line material or any tools, ropes, chains, vehicles or other con¬veyances used in committing the offence shall be made, 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, tools, ropes, chains and vehicles, vessels and other conveyances; (b) an opportunity of making representation in writing within such reasonable time as were specified in the notice against the grounds of confiscation; and (c) a reasonable opportunity of being heard in the matters. (2) Without prejudice to the provisions of Sub-section (1) no order confiscating any vehicle, vessel or other conveyance shall be made, if the owner of such vehicle, vessel, or other conveyance proves to the satisfaction of the Authorised Officer that it was used in carrying the electric-supply-line material without the knowledge or connivance of he owner himself, and his agent, if any, and the person in-charge of the vehicle, vessel or other conveyance had taken all reasonable and necessary precau¬tions against such use. 8. 8. Appeal - (1) Any person aggrieved by an order of confis¬cation made under Section 7 may within one month from the date of communication to him of such order, appeal to the Director, Transmission and Distribution of the Gridco and the appellate authority after giving an opportunity to the appellant to be heard, may pass such order as he may think fit, confirming, modifying, or annulling the order appealed against. (2) The appellate order shall be final and notwithstanding the result of the criminal case, if any, the confiscation as confirmed by the appellate authority shall not be questioned in any Civil or Criminal Court of Law. 9. Vesting of property - (1) When an order of confiscation of any materials, tools and conveyance has become final, such materials or a portion thereof, including the tools, vehicles, vessels and other conveyances as the case may be, shall vest in the Gridco free from all encumbrances and the Gridco, after fixing a reasonable valuation of the property, may dispose of the same in such manner as it deems proper. (2) Where in prosecution under Section 3 of this Act, the person concerned is acquitted on a finding that he was in lawful possession of the seized property, he will be entitled to be refunded the value or price fixed under Sub-section (1) or the actual disposal price, whichever is higher, from the Gridco.” 6. From a reading of Section 6(3) of the Act, it is clear that every police officer seizing the electric supply-line mate¬rial in connection with an offence committed under the Act shall forward a copy of the seizure list to the Authorised Officer within seventy-two hours from the time of seizure and shall make over the seized property including the vehicle to the said Au¬thorised Officer. Section 6(4) makes it clear that report of the seizure along with a copy of the seizure list shall also be sent to the nearest Magistrate having jurisdiction to try the offence. In the sections quoted above, there is no provision for interim release of the seized vehicle. It is also clear the seized arti¬cles together with the seizure list are to be made over to the Authorised Officer within seventy-two hours. That means, only after receipt of the above, the Authorised Officer assumes juris¬diction for confiscation. In the sections quoted above, there is no provision for interim release of the seized vehicle. It is also clear the seized arti¬cles together with the seizure list are to be made over to the Authorised Officer within seventy-two hours. That means, only after receipt of the above, the Authorised Officer assumes juris¬diction for confiscation. In other words, before that, he cannot deal with the seized articles or proceed for confiscation of the same. An analysis of the aforesaid provisions of the Act would clearly show that the Legislature has provided for all contingen¬cies regarding disposal of the property seized in connection with unlawful possession of electric supply-line materials. But no provision has been made with regard to interim release of the seized articles including the vehicles. The provisions aforesaid are more or less in pari materia with the provisions contained in Chapter-XXXIV of the Code of Criminal Procedure. A cursory glance at the provisions of the Act would also make it clear that the Legislature has not excluded the Magistrate from dealing with interim release application under Section 457 Cr.P.C. Admittedly there is no provision in the Act specifically excluding the jurisdiction of the Criminal Court for release of the property seized in connection with unlawful possession of electric supply-line mate¬rial. Therefore, it is abundantly clear that the general provi¬sions of Section 457 Cr.P.C. will apply in such a case. 7. A perusal of the case diary shows that admittedly the electric supply-line materials were seized on 10.06.2004 when Tangi P.S. Case No.88 of 2004 was initiated. The seized articles were handed over to the zima of the Sub-Divisional Officer, CESCO on 23.06.2004. The vehicle in question was seized on 01.07.2004 and the Investigating Officer intimated the fact of seizure to the Sub-divisional Officer, CESCO on 05.07.2004, that is, much after seventy-two hours of seizure. In other words, on the date of filing of the application under Section 457, Cr.P.C. i.e. 3.7.2004 and on the date of disposal of the application by the J.M.F.C.(R), Cuttack the vehicle was lying with the police. Counsel for the petitioner files an affidavit to the effect that till date no intimation or information has been received from the Authorised Officer about the initiation of any confiscation pro¬ceeding. No material is placed before this Court from the side of the prosecution to show that the vehicle has been handed over to the Authorised Officer. Counsel for the petitioner files an affidavit to the effect that till date no intimation or information has been received from the Authorised Officer about the initiation of any confiscation pro¬ceeding. No material is placed before this Court from the side of the prosecution to show that the vehicle has been handed over to the Authorised Officer. Therefore, this Court holds that the J.M.F.C.(R), Cuttack had jurisdiction to dispose of the applica¬tion filed under Section 457, Cr.P.C. by the petitioner. 8. For the reasons aforesaid, the impugned order and judgment of the Courts below are set aside. 9. Perusal of the orders of the Courts below shows that they have not applied their mind to the merits of the case and have dismissed the same only on the point of jurisdiction. The Supreme Court in Sunderbhai Ambala Desai v. State of Gujarat, (2003) 34 OCR (SC) 444, has laid down the principle that powers of the Magistrate regarding order for custody and disposal of valuable articles seized have to be exercised promptly and judiciously and the articles should not be kept in the police station for more than 15 days to one month. In consonance with the aforesaid principle, this Court directs the learned J.M.F.C. (R), Cuttack to consider the application of the petitioner filed under Section 457, Cr.P.C. and pass necessary orders for release of the vehicle on the terms and conditions which, according to him, are just and proper in the facts and circumstances of the case with cash security. Besides, the petitioner shall also furnish an undertaking that as and when required she would pro¬duce the vehicle before the Authorised Officer. It is made clear that before passing an order of release the learned Magistrate shall also satisfy himself about the ownership of the vehicle. 10. The CRLMC is disposed of accordingly. CRLMC disposed of.