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2012 DIGILAW 555 (ORI)

Balabhadra Nayak v. State of Orissa

2012-12-18

B.K.NAYAK

body2012
ORDER 18.12.2012 - Heard Mr. Sarangi, learned counsel for the petitioner and learned Additional Standing Counsel Perused the records. In this revision, the petitioner challenges the order dated 03.08.2012 passed by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2 (a) C.C. No. 21 of 2012 (N) rejecting the petitioner's application for interim release of the vehicle (motorcycle) bearing Registration No. OR-07-W-1879 which was involved in alleged commission of offence under Section 20(b)(ii)(B) of the N.D.P.S. Act. The motor cycle of the present petitioner was seized by the Inspector-in-charge of Excise E.I. & E.B., Berhampur along with 9.5 Kg. of ganja from the possession of the accused, Gopal Krushna, Sahu, while he was transporting the same. On the basis of the prosecution report, 2 (a) C.C. Case No. 21 of 2012 has been initiated. Petitioner's application for interim release of the motor cycle has been rejected by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur on the ground that the motor cycle was seized by the Excise Officials and not by the Police and therefore Section 457 Cr. P.C. has no application and that Section 60(3) of the NDPS Act provides for confiscation of the vehicle unless the owner proves that it was used without his knowledge or connivance or that of his agent. Learned counsel for the petitioner submits that though the present petitioner is the owner of the vehicle he has not been implicated as an accused in the aforesaid 2(a) C.C. No. 21 of 2012 (N) and that even if the motor cycle was seized by the Excise officials, the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur cannot be said to have no jurisdiction to give release of the said vehicle in exercise of power under Section 457 of the Cr. P.C. Learned Additional Standing Counsel submits that Section 457 Cr. P.C. will have no application when the vehicle in question has not been seized by a Police Officer. The word "Police Officer" occurring in Sub-section (1) of Section 457 Cr. P.C. cannot have a restricted meaning since the only provision that gives power to criminal Court to pass order with regard to interim release or custody of the property, seizure whereof has been reported to it. It must include any officer authorized under any law to investigate case, to effect seizure and to launch prosecution before the Criminal Court. P.C. cannot have a restricted meaning since the only provision that gives power to criminal Court to pass order with regard to interim release or custody of the property, seizure whereof has been reported to it. It must include any officer authorized under any law to investigate case, to effect seizure and to launch prosecution before the Criminal Court. In the case of Abdul Rashid v. State of Bihar 2001 Crl. L.J. 3290, the apex Court has held that a confessional statement made by an accused under NDPS Act to an Excise Officer, appointed under the Bihar and Orissa Excise Act is inadmissible being hit by Section 25 of the Evidence Act, since such Excise Officer is treated to be a Police Officer. There is no other provisions in the Cr. P.C. except Section 457 Cr. P.C. for passing order for interim release of the vehicle by the Criminal Court. In case the words, "Police Officer" occurring in Section 457(1) Cr. P.C. is given a restricted meaning so as to exclude officers of other departments like Excise etc. who are invested with power to investigate into the offence, effect seizure and launch prosecution and to report such seizure to the Criminal Court, it would cause injustice to the persons claiming to be entitled to custody of the property. Therefore, the words "Police Officer" in Section 457 Cr. P.C. must include an Excise Officer reporting such seizure to a Criminal Court in connection with the enquiry or trial of any criminal case. Section 60(3) of the NDPS Act is no bar for interim release of the vehicle as the said provision is only substantive in nature and speaks of the liability of the vehicle to be confiscated where the owner fails to prove that it was used without his knowledge or connivance or the knowledge and connivance of his agent in charge of the vehicle. In the light of the discussions made above, I allow the revision and set aside the impugned order and direct the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur to release the vehicle in question in favour of the petitioner after being satisfied about the petitioner's ownership over the vehicle in question subject to the following conditions: (i) that the petitioner shall furnish cash security of Rs.15,000/- (Rupees fifteen thousand) and property security to the tune of Rs.30,000/- (Rupees thirty thousand) with two sureties each for the like amount to the satisfaction of the learned Court below with the condition that the offending motorcycle shall be produced before the Trial Court as and when the Court directs to do so; (ii) the petitioner shall not transfer or dispose of the offending motor cycle to anyone else and shall not make any change' in its body, colour or Engine. It is needless to say that make, colour, chassis number and Engine number of the offending motorcycle shall be furnished by the petitioner before the Trial Court with an undertaking that no damage shall be caused or no part of the motorcycle be substituted, He shall keep the motorcycle insured at all times and produce the Insurance Certificate before the Trial Court as and when called upon; (iii) the petitioner shall also file an undertaking before the Trial Court that the offending motorcycle shall not be used for commission of any offence; and (iv) before giving interim custody of the offending motorcycle to the petitioner, three coloured photographs of cabinet size from different angles clearly indicating registration number and other particulars of the vehicle shall be kept on file. The expenses for the photographs shall be borne by the petitioner. The CRLREV is accordingly disposed of. Issue urgent certified copy. CRLREV disposed of.