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Orissa High Court · body

2009 DIGILAW 2 (ORI)

Janaki Ballav Lenka v. State of Orissa

2009-01-05

B.K.PATEL

body2009
ORDER 5.1.2009 The prayer of the petitioner in this application under Section 482 Cr.P.C. is to quash the impugned order dated 14.07.2008 passed in 2(b) C.C. No.5 of 2008 by the learned S.D.J.M., Banki rejecting the petitioner’s application under Section 457 Cr.P.C. for release of seized vehicle, i.e. Dumper bearing registration No.OSU-5993, and to release the seized vehicle in his interim custody. Petitioner holds Power of Attorney executed by the regis¬tered owner of the vehicle Khirod Chandra Pradhan authorizing him to look after the affairs and management of his mining lease along with machineries and stock including the seized vehicle. The vehicle was seized from the possession of the driver on the allegation of violation of provisions of Section 27(d) and 39(d) of the Wild Life (Protection) Act (for short, ‘the Act’) punisha¬ble under Section 51 of the Act. It is submitted by the learned counsel for the petitioner that the learned Magistrate upon reference to provisions under the Act mechanically passed the impugned order. It is contended that pending disposal of the criminal proceeding instituted against the accused-driver, the petitioner, being entitled to the possession thereof, ought to be given custody of the seized vehicle. Relying upon the decisions of the Hon’ble Supreme Court in State of M.P. & Ors. v. Madhukar Rao, 2008 (1) Supreme 47 and of his Court in Birendra Mohan Gouda v. State of Orissa, (2006) 35 OCR 847, it is contended by the learned counsel for the petitioner that seizures simplicitor of a vehicle on the accusation/allegation that the vehicle was used in the commission of offences under the Act does not in any way affect the Magistrate’s power to make an order of interim release of the vehicle. In Madhukar Rao (supra) it was held that the provision of Section 39(1)(d) of the Act cannot be used against exercise of the Magistrate’s power to release the vehicle during pendency of the trial. The provision of Section 39(1)(d) would come into play only after a Court of competent jurisdiction found the accusation and the allegations made against accused as true and recorded the finding that the seized vehicle was, as a matter of fact, used in the commission of offence. The provision of Section 39(1)(d) would come into play only after a Court of competent jurisdiction found the accusation and the allegations made against accused as true and recorded the finding that the seized vehicle was, as a matter of fact, used in the commission of offence. Any attempt to opera¬tionalise Section 39(1)(d) of the Act merely on the basis of the seizure and accusations/allegations leveled by the departmental authorities would bring it into conflict with the constitutional provisions and would render it unconstitutional and invalid. In Birendra Mohan Gouda (supra) placing reliance on the decision of the Hon’ble Supreme Court in Sundarbhai Ambala Desai v. State of Gujarat, (2003) 24 OCR (SC) 444, the vehicle seized for alleged commission of offences under the Act was directed to release in the interim custody of the registered owner. Having heard from both sides and considering the facts and circumstances of the case, it is found that allowing the seized vehicle to remain idle and unattended would not be or any benefit to anyone. In view of the ratio of the decisions referred to above, it is found just to release the seized vehicle in the interim custody of the petitioner, who is admittedly the power of attorney holder of the disposal of the proceeding, S.D.J.M., Banki shall release the seized vehicle in the interim custody of the petitioner subject to the petitioner furnishing property security of Rs.50,000/- (Rupees fifty thousand) and cash security of Rs.20,000/ (Rupees twenty thousand) which shall be kept in fixed deposit in the name of Judge-in-charge of Accounts till disposal of the case and the petitioner further undertaking. (i) not to transfer the vehicle and to produce it before the Court/authority as and when required; (ii) not to change colour, chasis number and engine number of the vehicle; and (iii) not to allow the vehicle to be used for any unlawful purpose. The CRLMC is, accordingly, disposed of. Urgent certified copy of the order be granted on proper applica¬tion. CRLMC disposed of.