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2005 DIGILAW 607 (ORI)

Mukesh Oil Mills (P) L v. State of Orissa

2005-10-07

N.PRUSTY

body2005
JUDGMENT N. PRUSTY, J. — The petitioner has filed this Criminal Revi¬sion challenging the order dated 13.9.2005 passed by the learned Special C.J.M. (Vigilance), Bhubaneswar in V.G.R. Case No.23 of 2005 rejecting an application filed by it under Section 457 Cr.P.C. for release of 945 tins of seized mustard oil in its favour on the ground that the petitioner has failed to establish the ownership of the seized mustard oil. The case of the petitioner, in short,is that the petitioner-Company being the manufacturer of the mustard oil, despatched the seized mustard oil through transport on 18.6.2005 to the consign¬ee’s destination at Bhubaneswar i.e. Subhadra Enterprisers, Indradhanu Market, Bhubaneswar. The consignee booked the oil through broker Murali Patra and promised to pay the value of the oil on delivery. Accordingly, the bill (Annexure-2) was drawn up by the petitioner in favour of the consignee on the condition that the consignee shall pay the bill amount of Rs.6,36,108/- and take delivery of the goods. On 25.6.2005, the consignment/truck reached the destination at Bhubaneswar but the consignee M/s. Subhadra Enterprisers refused to accept the consignment stating that it has not booked the same. Thereafter on intimation of the consignee, the Sales Tax Officer, Bhubaneswar-II Circle, seized the mustard oil alleging that the same has been despatched on the basis of forged waybill. The Sales Tax Officer issued notice under Rule 80(12) of the VAT Rules and levied tax and penalty amounting to Rs.1,87,660/- which was also deposited by the peti¬tioner by way of Bank Draft, but the Sales Tax Officer did not release the seized mustard oil in favour of the petitioner on the ground that the petitioner is not the owner but the consignor thereof. The petitioner had moved this Court in W.P. (C) 10458 of 2005 for release of the seized mustard oil but in the said writ petition the Sales Tax Officer disclosed that the Vigilance police on 30.8.2005 has seized the mustard oil in Bhubaneswar Vigilance P.S. Case No.23 of 2005 and accordingly, the writ petition was dismissed giving liberty to the petitioner to move before the Criminal Court for release of the seized goods in the vigilance case. Thereafter the petitioner moved application for release of the seized mustard oil under Section 457 Cr.P.C. in the trial Court, but the same was rejected by the learned trial Court by impugned order dated 13.9.2005 on the ground that the petitioner has failed to establish its ownership over the seized goods and it is necessary to prove as to whether this consignment of mustard oil has been sent by the petitioner basing on a forged way bill, keeping in view the order of the Sales Tax Officer wherein it has been held that the petitioner is no more the owner of the seized mustard oil and the actual consignee is yet to be unearthed. It would not be safe in the interest of proper inves¬tigation of the case to order release of the consignment in favour of the consignor/petitioner. Mr. S.C. Parija, learned counsel appearing on behalf of the petitioner submits that the impugned order is not an interlocuto¬ry order since the application of the petitioner filed under Section 457 Cr.P.C. has been finally rejected by the learned trial Court in a vigilance case, in which the petitioner is not a party. In the instant case since the consignee has not received the goods on payment of the bill amount, for which the transac¬tion of transferring the goods to the ownership of the consignee has not yet been completed, the petitioner continues to be the lawful owner of the seized mustard oil. The petitioner being not a party to the vigilance case and is only concerned only for taking back the undelivered goods, which were sent by him through carrier and once his application under Section 457 Cr.P.C. is rejected, the order is not an interlocutory order but a final order, so far as the petitioner is concerned, may be it has been passed during the pendency of a proceeding. In support of his contention regarding maintainability of the case, learned counsel has cited the decisions in the case of Joshy vs The State reported in 1986 Crl.L.J. 263, Mahadev v. State of Rajasthan and another reported in 1997 Crl.L.J.1614 and Keshu Lal v. State of Rajasthan reported in 1996 Crl.L.J.740. Learned counsel further submits that under the Sale of Goods Act, the consignor retains his ownership over the consignment till the consignee takes its possession on payment of value thereof. Learned counsel further submits that under the Sale of Goods Act, the consignor retains his ownership over the consignment till the consignee takes its possession on payment of value thereof. In the present case, the consignee has not paid value of the goods nor taken possession thereof, on the plea that he has not placed order for such purchase and despatch of the consign¬ment. No other person including the accused persons in the vigi¬lance case has claimed to be the consignee of the seized mustard oil. Hence the petitioner is the only person who continues to be the absolute owner of the goods and he is entitled to get posses¬sion of seized mustard oil. No prejudice will also be caused to the State if seized mustard oil is released in favour of the petitioner since the State has not claimed any right of ownership over the seized mustard oil and the seized oil is in no way required either for investigation or during trial of the case. The I.O. has filed an application on 3.9.2005 for sale of seized mustard oil, for which the trial Court has passed order on that very date (3.9.2005) for sale of the mustard oil. It is submitted by the learned counsel for the petitioner that the petitioner is ready and willing to take release of the seized mustard oil on furnishing indemnity bond before the trial Court with clear and complete undertaking to indemnify the consignee in future and if anyone establishes his ownership over the seized mustard oil. Mr. D. K. Mohapatra, learned Standing Counsel appearing on behalf of the Vigilance Department submits that by order dated 13.9.2005, the Special C.J.M. (Vigilance), Bhubaneswar on the application filed by the I.O., has directed to sell the seized mustard oil at the existing market price and to deposit the sale proceeds in the Court since the offences committed by the accused persons in the vigilance case are grave in nature. The provision of Section 457 Cr.P.C. itself is an intermediary stage in course of trial/investigation. As such the impugned order dated 13.9.2005 is an interlocutory order, since it is passed before culmination of the proceeding. Under Sections 20 to 26 of the Sale of Goods Act, 1930, after the goods were delivered to the transporter, the petitioner can no more be treated as the owner of the goods. As such the impugned order dated 13.9.2005 is an interlocutory order, since it is passed before culmination of the proceeding. Under Sections 20 to 26 of the Sale of Goods Act, 1930, after the goods were delivered to the transporter, the petitioner can no more be treated as the owner of the goods. As such the petitioner has no locus standi to file this Revision. By virtue of the judicial order of a competent Court, since the seized goods are in custody/Zima of Mr. C. Kabi, Addl. C.T.O., Bhubaneswar-II, this Revision is not maintainable in his absence. The finding of the Sales Tax authorities is that the petitioner does not remain as the owner of the goods after the goods were handed over to the transporter. The amount, which had been deposited by the petitioner towards tax and penalty as per provisions of the VAT Act, has already been refunded to the petitioner and in this manner he has forfeited his claim to the goods in issue.The petitioner cannot take undue advantage on refusal of M/s. Subhadra Enterprises to receive the goods and as such his claim is untenable. Since the goods are perishable in nature, the Court had already directed for sale of the same and for deposit of its sale proceeds in the trial Court. Lastly he submits that if the consignor takes the goods back, wrongful loss will be caused to the State exchequer and till date no competent Court of law has declared the petitioner as the lawful owner of the seized goods. In that view of the matter the Criminal Revi¬sion is liable to be rejected. In case the decision of this Court goes in favour of the petitioner, then he may be directed to furnish adequate Bank guarantee instead of an indemnity bond as suggested by the petitioner, because the petitioner is a resi¬dent of outside Orissa for which it would be impracticable for the prosecution to execute the indemnity bond on the failure of the petitioner. Learned counsel further submits that once the consignment is booked in the name of the consignee and handed over for transaction to the carrier, even if the bill amount is not paid and the consignee refuses to accept the same, the con¬signor no more remains as the owner of the goods and it is the consignee who becomes the rightful owner of the goods. The con¬signor is only entitled to the value of the goods and nothing more than that, once the goods are despatched. Non-payment of the value of the goods to the consignor can never be treated as non-completion of the transaction and as such continuation of the ownership with the consignor does not touch to the commonsense and has never been supported by any provision of the law govern¬ing the field. The argument advanced by the learned Standing Counsel does not touch to the reasons. Law is well settled with regard to transfer of ownership of any property or goods. It is -unless the consignee pays the value of the goods/transaction amount to the consignor and the consignor receives the same, the transaction remains incomplete and as such the consignor continues to be the owner of the goods. In the instant case since the consignee has refused to receive the goods on payment of the bill amount, even though the goods are booked in his name and handed over to the transporting company to be delivered to him, the consignor remains to be the owner of the goods till the value of the goods is paid to him by the consignee and thereafter the consignment is delivered to him on such payment. Only after completion of all such formalities the entire transaction shall be treated as complete and till such completion of the formalities the consignor being the owner of the goods/consignment shall also remain liable to fulfil all the requirements under law. Admittedly, the goods in question are perishable in nature. Keeping that in view, the learned trial Court has directed for sale of the seized goods and in compliance with the same, the Sales Tax Officer who has taken Zima of the goods, has already issued notice/proclamation inviting application for sale of the seized mustard oil in the vigilance case. The petitioner is not a party to the vigilance case nor is in any way connected with the same, except the fact that the consignment despatched by him have been seized by the Vigilance Department as the same were not accepted by the consignee and some persons are involved in the vigilance case for use of forged way bills, and a vigilance case has been initiated in this regard. So far as the ownership of the mustard oil is concerned, the petitioner continues to be the owner of the same till the transaction is completed in all re¬spect on payment of the value of the goods by the consignee to the petitioner. So far as the petitioner is concerned, once his application under Section 457 Cr.P.C. has been rejected by the learned trial Court during the pendency of the vigilance case, the same is a final order because of the fact that neither he is in any way connected with the vigilance case nor is he implicated as one of the accused persons therein. In the decisions of different High Courts, which have been relied upon and cited by the learned counsel for the petitioner with regard to the maintainability of this case, it has been held in clear and categorical terms that the order being one under Section 457 Cr.P.C. cannot be treated as an interlocutory order and hence is revisable and as such the revision petition is maintainable. Considering the submissions made by the learned counsel for both the parties, I am of the considered view that since the consignor/petitioner retains his ownership over the consignment so long as the consignee pays the value of the goods and takes delivery of its possession, and as per the case of the prosecu¬tion the goods being perishable in nature are liable to be dis¬posed of, and the State in no way can claim the ownership of the mustard oil nor the same is required for investigation or during the trial, the prosecution shall be in no way prejudiced if the seized mustard oil is released in favour of the petitioner on its furnishing adequate security for the same, which may or may not be required in future. In view of the above, the impugned order dated 13.9.2005 passed by the learned Chief Judicial Magistrate (Vigilance), Bhubaneswar in VGR Case No.23 of 2005 is set aside and the learned trial Court is directed to release 945 tins of seized mustard oil in favour of the petitioner on the condition that the petitioner shall furnish Bank Guarantee to the tune of Rs.6, 36,108/- for a period of one year, which is to be renewed for a period of one more year, at least a month prior to the date of expiry of the Bank Guarantee and in case the vigilance case does not reach to its finality and is disposed of within two years, the petitioner shall be at liberty to move the Court to replace the Bank guarantee by an indemnity bond to be furnished by him, which shall remain in force till completion of the proceedings in all respect. The Criminal Revision is accordingly allowed. Cri. Rev. allowed.