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2006 DIGILAW 602 (ORI)

BIRENDRA MOHAN GOUDA v. STATE OF ORISSA

2006-08-14

A.S.NAIDU

body2006
A. S. NAIDU J. ( 1 ) THE order dated 28. 1. 2006 passed by the SDJM, Sambalpur in CMA No. 18 of 2006 arising out of 2 (b)CC No. 1 of 2006 is assailed in this case by the petitioner. ( 2 ) THE moot question that needs determination in this case is whether a vehicle seized for alleged commission of an offence under the Wild Life Protection (Amendment)Act, 2002 (hereinafter referred to as the Act') can be released in the Zima of the owner thereof pending final decision in the case. In the present case a Maruti Esteem car bearing registration number OR-05-N-9239 was seized by the Forest Range Officer, town Range, Sambalpur for alleged commission of offence in contravention of section 9 read with Sections 2 (20)/39/40/51/ (1) of the Act. The fact of such seizure was reported to the SDJM, Sambalpur on the basis of which the aforesaid complaint case was registered. The learned SDJM on being prima facie satisfied about commission of the alleged offences has taken cognizance thereof. The petitioner claiming to be the^ owner of the said car filed a petition before the SDJM under Section 457 Cr. PC for releasing the said car in his Zima. It was averred in the said petition that the petitioner had absolutely no knowledge about use of the said car in commission of the alleged crime. In fact the driver without the authority of the petitioner had taken the said car on 10. 1. 2006 and as he did not return for a long time, apprehending any untoward incident the petitioner enquired about him and noticed that the car had been seized by some Forest officials. Learned sdjm relying upon the provision of Section 39 (d) of the Act which stipulates that any vehicle, vessel, weapon, trap or tools used for commission of offence and seized under the provision of the said Act becomes a Government property, rejected the said petition filed by the petitioner. ( 3 ) MR. Nayak, learned Counsel for the petitioner, relying upon a decision of this Court reported in Baikuntha. Bihari Mohapatra v. State of Orissa submitted that a Magistrate has the power to entertain a petition filed under Section 457 Cr. PC and in a given case to release any vehicle or property seized for an interim period. ( 3 ) MR. Nayak, learned Counsel for the petitioner, relying upon a decision of this Court reported in Baikuntha. Bihari Mohapatra v. State of Orissa submitted that a Magistrate has the power to entertain a petition filed under Section 457 Cr. PC and in a given case to release any vehicle or property seized for an interim period. He further submitted that the facts of Baikuntha Bihari case (supra)are identically same as the facts of the present case and, as such, the learned SDJM acted illegally and with material irregularity in rejecting the petition filed by the petitioner under Section 457 Cr. PC on the ground that Section 39 (d) of the Act is a bar for that. ( 4 ) MR. Mishra, learned Additional Standing counsel appearing for the State, though fairly admitted that Court has power to direct interim release of any vehicle property, but then submitted that keeping in view the aim and object of the Act, such power should be sparingly exercised. According to him an offence under the Act being very serious in nature and as there is likelihood of user of the same vehicle for commission of similar crime again, it would not be desirable to release the vehicle. Relying upon a decision of this Court in Satyabrata Majhi v. State of Orissa Mr. Misra submitted that in the said case this Court had clearly held that a vehicle seized in connection with commission of offence under the Act becomes a property of the State and the same cannot be released in the Zima of the owner thereof. ( 5 ) BUT then in the decision in Baikuntha bihari case (supra) relying on a Full Bench decision of the Madras High Court this court came to the conclusion that during pendency of a confiscation proceeding a seized property cannot be said to be a property of the State. For arriving at such conclusion an adjudication process has been specified under the Act itself and before such adjudication it cannot be presumed and/or concluded that a property seized in connection with alleged commission of an offence under the Act becomes that of the state. For arriving at such conclusion an adjudication process has been specified under the Act itself and before such adjudication it cannot be presumed and/or concluded that a property seized in connection with alleged commission of an offence under the Act becomes that of the state. In view of the aforesaid authoritative pronouncements, I do not find any hesitation to come to the conclusion that for protection of the value of a property seized it would be just and proper for the Court to exercise the power under Section 457 Cr. PC and direct release of the same in the Zima of the real owner thereof if there will be no impediment. This view of mine gets fortified from the decision of the Supreme Court in the case of Sunderbhai Ambala Desai v. State of Gujarat, wherein relying on Sections 451 and 457 Cr. PC the Supreme Court clearly held that the power under the said sections should be exercised expeditiously and judiciously as it would serve various purposes, namely: (1) Owner of the article would not suffer because of its remaining unused or by its misappropriation; (2) Court or the police would not be required to keep the article in safe custody; and (3) If the proper Panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail. It was further held that the jurisdiction to record evidence should be exercised promptly so that there may not be further change of tampering with the articles. ( 6 ) THIS Court takes judicial note of the fact that vehicles and other articles seized in connection with various cases are dumped at the police station or forest offices unguarded and exposed to sun and rain. A lot of pilferage also may take place during pendency of confiscation proceeding and it is common knowledge that such proceeding takes a long time and in the process the vehicle or property seized in the case gets deteriorated and by the time the same is put to auction hardly it fetches any value. In that condition if a vehicle or property is confiscated to the State, practically that would which fetch no value. In that condition if a vehicle or property is confiscated to the State, practically that would which fetch no value. To avoid such eventuality, in the light of the ratio of the decision in Sunderbhai Ambala case (supra) this court feels that the Maruti Esteem car seized in the present case should be released in the zima of the petitioner subject to certain conditions. ( 7 ) THIS Court accordingly directs release of the seized Maruti Esteem car in the Zima of the petitioner on his satisfying the Court below that he is the real owner thereof and subject to his furnishing a cash security or bank guarantee of Rs. 1,00,000. 00 (one lakh), property security for the like amount and executes a bond for Rs. 1,00,000. 00 (one lakh) and an undertaking to maintain the vehicle in proper condition; not to change its engine and/or any other vital part; not to misuse the said vehicle anyway; not to sell or transfer the same; to produce the vehicle before the authorities/court as and when required. It is needless to say that before releasing the vehicle, photographs thereof from four angles and at least one displaying its engine number and chassis number shall be taken at the cost of the petitioner which shall be kept on Court record. The CRLREV is accordingly disposed of. Revision allowed.