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2005 DIGILAW 174 (ORI)

TAPAS MANDAL v. STATE OF ORISSA

2005-03-09

R.N.BISWAL

body2005
R. N. BISWAL, J. ( 1 ) IN this revision the petitioner has challenged the legality, propriety and correctness of the order dated 9-11-2004 passed by the S. D. J. M. (Sadar), cuttack in G. R. Case No. 184 of 2001 wherein he rejected the petition filed under section 457, Cr. P. C. on the ground that he has no jurisdiction to entertain the matter. As found from the revision petition and impugned rejection order, the petitioner and five others have been arrayed as caused for the offence under Section 3 of the Electric supply Line-Materials (Unlawful Possession)Act 1988 (hereinafter referred to as the Act)read with Section 34 of I. P. C. in G. R. Case no. 184 of 2001 pending before the S. D. J. M. (Sadar) Cuttack on the allegation that they were found in illegal possession of some bundles of electric wires. The petitioner claiming to be the owner of the said electric wires filed a petition under Section 457 of the Cr. P. C. for interim release of the same in his favour. The S. D. J. M. (Sadar), Cuttuck rejected the petition relying on the decision "kailash Chandra Sahu v. State of Orissa", (2001) 20 OCR 341 holding that this Court held therein that sub-section (3) of Section 6 of the Act clearly ousts the jurisdiction of the Criminal Court to deal with the property so seized. ( 2 ) BEING aggrieved with this order, the petitioner has preferred this revision. Sub-section (3) of Section 6 of the Act reads as follows :"every Police Officer seizing electric supply-line material in connection with an offence suspected to have been committed under this Act shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) forward a copy of the seizure list to the authorized officer within seventy-two hours from the time of seizure and shall make over to the said Authorized Officer the seized property including the tools, chains, ropes, vehicles, vessels and other conveyances seized, for the purpose of initiating confiscation proceeding under this Act". In the present case I. I. C. of Madhupatna police Station made the seizure. In the present case I. I. C. of Madhupatna police Station made the seizure. So learned counsel for the petitioner submitted that as per Section 6 (3) of the Act the I. I. C. of madhupatna Police Station ought to have produced the seized articles before the Authorized Officer within 72 hours of seizure but the same having not been done the Court below ought to have allowed the petition under Section 457, Cr. P. C. ( 3 ) ONCE the articles seized in connection with an offence under Section 3 of the Act are produced before the Authorized Officer the Magistrate concerned ceases to have jurisdiction to entertain a petition under section 457, Cr. P. C. In the present case even though the electric wires were seized on 3-2-2001. the Authorized Officer has not yet received the same. Had the Seized electric wires produced before the Authorized Officer soon after the seizure, perhaps the confiscation proceeding under Section 7 of the Act would have been completed by this time. At this stage, learned Addl. Standing counsel submitted that as per provision under Section 6 (3) of the Act it was the duty of the i. I. C. Madhupatna P. S. to make over the seized articles to the Authorized Officer. When he has not done so the Authorized officer cannot be blamed for the same. As found from the impugned order the Authorized officer was intimated by the I. I. C. , madhupatna Police Station about the seizure of the electric wires. If the Authorized officer was reluctant to go to the police station to collect the electric wires he could have requested the I. O. to produce the same before him. When he has not done so, it appears, the Authorized officer is not interested to initiate a confiscation proceeding. The articles are lying at the police station premises since 3-2-2001. In the decision kailash Chandra Sahu (2001 (20) OCR 341) (supra) since the seizing officer did not take recourse to sub-section (3) of Section 6 of the Act till 27-1-2000, even though the vehicle was seized on 15-12-2000 this Court directed that if an application was made by the petitioner before the Authorized Officer for interim release of the vehicle in question he would release the same in his favour. ( 4 ) IN the case at hand since the I. I. C. of madhupatna P. S. did not make over the seized articles to the Authorized Officer as required under sub-section (3) of Section 6 of the Act nor the Authorized Officer took pain to collect the same from the P. S. till date the jurisdiction of the S. D. J. M. is not ousted to entertain the petition under section 457 of Cr. P. C. It appears that the Court below could not follow the spirit of the decision in the case of Kailash Chandra Sahu (supra ). ( 5 ) ACCORDINGLY the revision is allowed and the impugned order dated 9-11-2004 passed by the S. D. J. M. (Sadar) Cuttack is set aside. The S. D. J. M. (Sadar), Cuttack shall dispose of the petition on its own merit as expeditiously as possible. Revision allowed.