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2012 DIGILAW 215 (ORI)

Jamini Krishna Pattnaik v. State of Orissa

2012-04-25

SANJU PANDA

body2012
JUDGMENT S. PANDA, J. Since common question of law is involved in both the revisions, they are heard together and disposed of by this common judgment. The petitioners in both the revisions challenge the impugned orders dated 27.6.2011 passed by the learned JMFC, Barbil in C.M.C. No. 81 of 2011 and C.M.C. No. 101 of 2011 respectively rejecting the applications under Section 457, Cr.P.C. for release of the Tippers bearing registration Nos. OR-14-J-9822 and OR-09-J-8049 in connection with offence under Section 21 of the Mines and Minerals (Development and Regulation) Act. The petitioners being the owners of the seized vehicles filed applications before the learned JMFC, Barbil for release of the vehicles, as they are entitled to the same. The vehicles were seized by the mining squad on the allegation that the same were illegally carrying mining ores. The seizure of the vehicles was reported to the competent authority i.e. Deputy Director of Mines, Joda and petitioners filed applications under Rule 12(2) of the Orissa Minerals (Prevention of Theft, etc.) Rules, 2007 to report the seizure of vehicles to the appropriate Court of law. After the seizure, the petitioners approached this Court in W.P.(C) No. 1023 of 2010 and W.P.(C) No. 1512 of 2011 respectively with the prayer to direct the Deputy Director of Mines, Joda to report the vehicles to the appropriate Court of law, since the petitioners do not want to compound the offence. Accordingly, the writ applications were disposed of on 3.2.2011 after hearing the parties with the direction to the Deputy Director of Mines to report the case to the Court of learned JMFC, Barbil. Accordingly, the case was reported to the Court. The petitioners moved applications for release of the vehicles before the learned JMFC, Barbil under Section 457, Cr.P.C. which were rejected erroneously on the ground that the confiscation proceedings have already been initiated against the vehicles vide Confiscation Proceeding No. 27 of 2009 and Confiscation Proceeding No. 213 of 2008 respectively. Since the confiscation proceeding were already initiated, the Court below did not incline to release the vehicle. Learned counsel for the petitioners submitted that as per Rule 13 of the Orissa Minerals (Prevention of Theft, etc.) Rules, 2007 (hereinafter referred to as "the Rules, 2007") since the matter was reported to the Court, the Court has the jurisdiction to release the vehicles even if confiscation proceedings were initiated. Learned counsel for the petitioners submitted that as per Rule 13 of the Orissa Minerals (Prevention of Theft, etc.) Rules, 2007 (hereinafter referred to as "the Rules, 2007") since the matter was reported to the Court, the Court has the jurisdiction to release the vehicles even if confiscation proceedings were initiated. However, learned Additional Government Advocate while supporting the impugned order, submitted that since the confiscation proceedings were initiated by the competent authority, in such a situation, learned Magistrate rightly did not entertain the application. In support of his contention, he has cited the decisions reported in the case of Kuril Tiria 2007 (Supp.I) OLR 368 v. State of Orissa, (2007) 36 OCR 828, Soubhagya Kumar Panda v. State of Orissa**, **2003 (Supp.) OLR (NOC) 958 (2003) 25 OCR 840 and in the case of State of West Bengal and others v. Sujit Kumar Rana, AIR 2004 Supreme Court 1851. Except in the case of Soubhagya Kumar Panda (supra), which is a case under Bihar and Orissa Excise Act, the other cases are under the Forest Act. In W.P. (Crl.) No. 683 of 2011 disposed of on 14.9.2011, the Division Bench of this Court taking into consideration the decision of the Apex Court in the case of Sundarbhai Ambala Desai v. State of Gujarat (2003) 24 OCR (SC) 444 by distinguishing the decision of Soubhagya Kumar Panda (supra) released the vehicle under Section 457, Cr.P.C. which was involved in a case under Bihar & Orissa Excise Act. On the aforesaid rival submissions of the learned counsel for the parties, to appreciate their arguments, it is necessary to quote the Rules 12 and 13 of the Orissa Minerals (Prevention of Theft, etc.) Rules, 2007. "12. Seizure and Confiscation : xxx xxx xxx "(2) After seizing any property under Sub-rule (1), he shall keep such property under his custody with proper official seal and with detailed information in Form-N indicating that the same has been seized by him and shall, except where the offender agrees in writing to get the offence compounded, either produce the same before the Competent Authority having jurisdiction or make a report of such seizure to the Court competent to take cognizance of the offence and the Court will try the offence on account of which the seizure has been made. (3) Upon receipt of any report under Sub-rule (2), the Court shall except where the offence has been compounded, take such measure as may be necessary, for arrest and trial of the offender and disposal of the property according to law." (Emphasis supplied). xxx xxx xxx xxx xxx xxx xxx xxx xxx "13. Release of property by Competent Authority: Nothing in these rules shall be deemed to prevent the Competent Authority from directing at any time the immediate release of any property seized under Sub-rule (1) of Rule 12 and the withdrawal of any charge made in respect of such property in accordance with the provisions of Section 321 of the Code of Criminal Procedure, 1973 (No. 2 of 1974) Provided that where a report has been made to the competent Court of the property seized, the Competent Authority shall not release the property without the consent in writing of such Court, if a case is pending before the same." On a conjoint reading of the aforesaid provisions, it appears that if the offender does not agree to compound the offence, the competent authority shall report the matter to the Court competent to take cognizance of the offence and the Court will try the offence on account of which the seizure has been made. On receipt of the report, the Court shall take such measures, as may be necessary, for arrest and trial of the offender and disposal of the property according to law. Since in the present case, the petitioners do not want to compound the offence, the competent authority reported the case to the Court of learned J.M.F.C., Barbil. The Court is in seisin of the matter. Therefore, the learned J.M.F.C. is competent to consider the application under Section 457, Cr.P.C. Rule 13 of the Rules, 2007 rather puts a condition that in case the competent authority has reported the matter to the Court, he has to take written consent of the Court for release of the property so seized. Therefore, in either case, the Court is competent to take a decision in the matter of release or confiscation of the seized property in accordance with law. Therefore, in either case, the Court is competent to take a decision in the matter of release or confiscation of the seized property in accordance with law. In view of the above, learned JMFC is not correct in rejecting the applications filed under Section 457, Cr.P.C. Accordingly, this Court sets aside the impugned orders dated 27.6.2011 passed by the learned JMFC, Barbil in C.M.C. No. 81 of 2011 and C.M.C. No. 101 of 2011 and directs him to release the vehicles bearing registration numbers OR-14-J-9822 and OR-09-j-8048 after verifying the relevant documents with such terms and conditions as he deems fit and proper with the further condition that the petitioners shall furnish the cash security and bank guarantee as per the value of the vehicles reflected in the current insurance policy. The Criminal Revisions are accordingly allowed. Revisions allowed.