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2010 DIGILAW 30 (ORI)

Orissa Mining Corporation v. State of Orissa

2010-01-14

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. — The petitioner, namely Orissa Mining Corporation Ltd. (hereinafter referred to as “OMC”), a Government of Orissa undertakings, has preferred this Revision against the order dated 14.10.2009 passed in Crl. Misc. Case No.71 of 2009 (arising out of 2(b) C.C. No.15 of 2009) of the Court of J.M.F.C., Jajpur Road, wherein the learned Magistrate rejected the petition filed by the petitioner under Section 457 of the Code of Criminal Procedure, 1973 to release 80,000 MTs of seized Chrome ore. 2. In short, the case of the petitioners is that the petitioner Orissa Mining Corporation Ltd. is a wholly owned company of the Government of Orissa duly incorporated under the provisions of the Companies Act, 1956, having its registered office at OMC House, Bhubaneswar. It is engaged in the business of mining of different kinds of ores and minerals. Out of various mineral leases, two mineral leases were granted by the State in favour of the petitioner-company in the district of Jajpur, which are commonly known as Kaliapani Mines and South Kaliapani Mines for the purpose of Chrome ore and both the mines situated adja¬cent to each other. The term of the mining lease in respect of Kaliapani Mines for lifting of Chrome ore was up to 07.07.2007. The petitioner-company has already submitted the application for renewal of mining lease on 4.7.2006 that is twelve months before the date on which the lease was due to expire. The renewal appli¬cation has not been disposed of by the State Government. Hence, by virtue of the provision under Rule 24-A(6) of the Mineral Concession Rules, 1960, the said mining lease is deemed to have been extended till the State Government passes orders on renewal application. However, after expiry of the mining lease period on 07.07.2007, all types of activities have been stopped in Kaliapa¬ni Mines. The Mining lease in respect of South Kaliapani Mines for lifting of Chrome ore is subsisting and the mining activities are going on with the prior approval of the competent authority. On 14.09.2009, a surprise check was conducted by the Forester, Ransol along with staff of Sukinda Range, to the mining premises of Kaliapani Mines of the petitioner. During the course of check, 80,000 MTs of Chrome ore was seized by the checking squad and kept in the Zima of Ramesh Chandra Sahoo, Senior Manager (Mines) vide., Zimanama dated 14.09.2009. On 14.09.2009, a surprise check was conducted by the Forester, Ransol along with staff of Sukinda Range, to the mining premises of Kaliapani Mines of the petitioner. During the course of check, 80,000 MTs of Chrome ore was seized by the checking squad and kept in the Zima of Ramesh Chandra Sahoo, Senior Manager (Mines) vide., Zimanama dated 14.09.2009. Thereafter, the matter was report to the learned J.M.F.C., Jajpur Road, vide Offence Report No.101 dated 14.09.2009, which has been registered as 2(b) C.C. No.15 of 2009 for commission of offence under Section 37(1)(c) and 81(4) of the Orissa Forest Act, 1972, hereinafter referred to as the “Act” for brevity. It is submitted by the petitioner that the seized Chrome ore of 80,000 MTs were excavated from south Kaliapani Mines and stocked in the vacant barren lease hold area of Kaliapani Mines under due intimation and knowledge of the competent authorities as there is no sufficient vacant barren area in South Kaliapani Mines for stocking of huge quantity of excavated Chrome ore. 3. On 11.10.2009, an application under Section 457, Cr.P.C. was filed by the petitioner before the learned J.M.F.C., Jajpur Road, which was registered as Crl Misc. Case No.71 of 2009. Learned J.M.F.C., Jajpur Road, however, rejected the peti¬tion on 14.10.2009. Hence this Revision. 4. Heard learned counsel for the petitioner, the learned Addl.Standing Counsel and the learned counsel appearing for the intervener. 5. Learned J.M.F.C. rejected the petition of the OMC on the ground that he was not satisfied that the petitioner has a rightful ownership of the seized Chrome ore. It is undisputed at this stage that both Kaliapani mines and South Kaliapani mines were leased to OMC. Lease of Kaliapani mines expired on 7.7.2007, but by virtue of deeming provision till an order is passed by the Government of Orissa, it is to be accepted that the lease is subsistence. However, there is no dispute that the lease of the South Kaliapani mines is still subsisting and the Chrome ores were extracted from South Kaliapani mines. OMC being the Govern¬ment Corporation is the sole operating agency of the State Gov¬ernment, for operating mines in the State. It is further stated that no other undertaking is at present dealing with the Chrome ores. Many industries of the State are depending upon it for supply of Chrome ores. OMC being the Govern¬ment Corporation is the sole operating agency of the State Gov¬ernment, for operating mines in the State. It is further stated that no other undertaking is at present dealing with the Chrome ores. Many industries of the State are depending upon it for supply of Chrome ores. Furthermore, if the Chrome ore is allowed to be remain exposed to the natural vagaries like sun and rain, the grade of the Ore shall be reduced which will result in reduce of revenue to the Corporation and thereby causing loss to the State. Another important point, which has been canvassed by Mr. Sanjit Mohanty, learned Senior Advocate for the petitioner is that generally when such huge quantity of chrome ore is stored in open, pilferage and theft cannot be stopped and the ultimate loser will be State’s exchequer. In view of these facts, this Court do not find any reasonable ground for rejecting the appli¬cation of the OMC for release of the Chrome ore in favour of the OMC. 6. Learned Addl. Standing Counsel has raised the point that since an offence under the Forest Act has alleged to been committed, there is a bar under Section 57 of the Forest Act and hence, the seized materials cannot be released in favour of the petitioner. The controversy regarding this has been set at rest since 1990 by the Division Bench of this Court in State of Orissa through the Divisional Forest Officer, Angul v. Acharya Charan Choudhury and others, 70 (1990) C.L.T. 371, wherein this Court has held that if the seizure is made under the provisions of Section 56 of the Forest Act and the property seized is produced before the Divisional Forest Officer for initiation of a proceed¬ing of confiscation, then merely because the factum of seizure is reported to the Magistrate, the Magistrate will have no jurisdic¬tion to invoke the provisions of the Criminal Procedure Code for interim release of the property in question. On the other hand, the special law providing the special forum for such release, namely, Section 57 of the Orissa Forest Act would apply and it would be the Forest Officer, who alone would be competent to release the property on such terms and conditions as it thinks fit and proper. On the other hand, the special law providing the special forum for such release, namely, Section 57 of the Orissa Forest Act would apply and it would be the Forest Officer, who alone would be competent to release the property on such terms and conditions as it thinks fit and proper. Thus, to attract the prohibition under Section 57 of the Act, two essential conditions must be fulfilled, firstly the offence alleged must relate to an offence under the Forest Act and the seizure must be under Section 56 of the Forest Act; secondly the property seized should have been produced before the Divisional Forest Officer for initiation of the proceeding of confiscation. In such case, the criminal Courts have no jurisdic¬tion to dispose of the property under Section 457 of the Code. In this case, though the prosecution alleges that there has been violation of Section 37(c) of the Act, the seized properties have not been produced before the Divisional Forest Officer for initi¬ation of a confiscation proceeding. Hence, the Bar under Section 67 of the Forest Act is not applicable. 7. The next contention raised by the learned Addl.Standing Counsel in this case is that the property should be given in interim custody of the OMC, but the OMC should not be allowed to dispose of the same. Under Section 451 of the Code, it is provid¬ed that when any property is produced before any criminal Court during an enquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. As noted earlier, the property seized in this case is huge in volume weighing 80,000/- Metric Tones. If the seized materials are released in favour of the OMC without the liberty to supply the same to different industries for use, then the whole purpose of passing an order shall be defected. It is noted that the OMC do not have so much open space for stocking of these chrome ores. If the seized materials are released in favour of the OMC without the liberty to supply the same to different industries for use, then the whole purpose of passing an order shall be defected. It is noted that the OMC do not have so much open space for stocking of these chrome ores. Secondly, by keeping the chrome ores not utilized for the period the case is pending, the quality and grade of the ore will defi¬nitely deteriorate as it shall remain exposed to vagaries of nature. Finally, the industrial activity of various companies depend on the OMC for supply of chrome ore shall be adversely affected, which will not be in the interest of the industrial health of the State. 8. Keeping in view the above facts and circumstances, this Court considers it expedient to order that the chrome ore seized in this case be released in favour of the OMC. The OMC shall supply the same to different industries keeping a separate ac¬count of the same and the OMC shall keep a responsible officer in charge of such accounts. The sale proceeds of such sales shall be kept in a separate account in any Nationalised Bank and shall be communicated to the learned J.M.F.C., Jajpur Road every quarter. Such amount deposited in the Bank shall not be utilized by the OMC for any purpose till disposal of the case. The OMC shall authorize one of his officers, preferably a senior officer to execute an indemnity bond without surety for an amount of Rs.5,00,00,000/- (Five Crores) before the learned J.M.F.C., Jajpur Road. The Criminal Revision is accordingly allowed. Revision allowed.