Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 319 (ORI)

Bhaba Krishna Mishra v. State of Odisha

2013-08-21

S.K.MISHRA

body2013
JUDGMENT S.K. Mishra, J. In this criminal revision under Section 397 of the Code of Criminal Procedure, 1973, the petitioner assails the order dated 23.03.2012 passed by the learned J.M.F.C., Barbil rejecting his application for release of the Unit of M/s. Swati Mines and Minerals Private Limited, which has been seized in G.R. Case No. 498 of 2010. 2. The petitioner, being the Managing Director of M/s. Swati Mines and Minerals Pvt. Ltd., a Unit established for procurement, storage and processing of Manganese Ore and incorporated under the Companies Act, is the applicant. The officers of Joda Police Station, on the basis of written report lodged on 29.01.1990 by the Sub-Inspector of Police alleging that he has reliable information concerning illegal transportation and unloading of Manganese Ore inside the factory premises of Swati Minerals located at Banspani, rushed to the spot and found one 207 Tata Pick Up bearing Regn. No. OR-09A-1414 was loaded with some plastic bags containing manganese Ore being parked inside the unit. It is further alleged that at the sight of the police, the driver of the vehicle and those present at the Unit ran away. Thereafter, a case was initiated and the unit was seized. The office room, where the original documents and records pertaining to the factory/unit are stored has also been sealed, but no seizure list was furnished to the petitioner. Thereafter, the petitioner filed an application under Section 457 of the Code for release of the seized property in his favour, which was registered as C.M.A. No.17 of 2011. The learned Magistrate called for a report from the local police by his order dated 03.02.2011. However, despite the case suffering several adjournments with repeated reminders issued from the Court, the Investigating Agency did not submit the case diary or the seizure list before the J.M.F.C. On 24.09.2012, the learned J.M.F.C. rejected the petition solely on the ground that no seizure list or any connected paper was available in the case record. 3. The petitioner preferred a revision assailing the order of the learned J.M.F.C., which has been registered as Crl. Revision No.615 of 2012. In course of hearing, learned counsel for the State produced relevant documents, from which it appears that the police has seized the Unit of the petitioner on 21.09.2010. Therefore, the Crl. 3. The petitioner preferred a revision assailing the order of the learned J.M.F.C., which has been registered as Crl. Revision No.615 of 2012. In course of hearing, learned counsel for the State produced relevant documents, from which it appears that the police has seized the Unit of the petitioner on 21.09.2010. Therefore, the Crl. Revision was disposed of directing the learned J.M.F.C., Barbil to consider and dispose of the application under Section 457 of the Code for interim release of the Unit of the petitioner. 4. Thereafter, the matter was heard by the learned J.M.F.C. on 23.03.2013. It was argued before the learned J.M.F.C. that the original documents regarding the ownership of the Unit in question has been kept inside the office room of the Unit, which has been sealed by the police, and therefore, it is not possible for the petitioner to produce the same. 5. In that view of the matter, the petitioner prayed that the application for interim release of the Unit be considered in his favour. However, the learned J.M.F.C. held that since no original documents for perusal, has been filed regarding the possession and ownership of the seized articles, as prayed for, the application was without merit. It is further weighed in the mind of the Court that the illegal transportation and mining operation of mines and minerals are rampantly increasing in the locality day by day causing huge loss to the State exchequer and on such consideration, he rejected the application for interim release of the seized articles of the present petitioner. 6. In course of hearing, learned counsel for the State argued that the seized articles cannot be released in favour of the petitioner as he is the accused in the case. Secondly, it is contended that the documents showing ownership of the machineries etc. in question have not been produced before the learned J.M.F.C., Barbil. Therefore, the revision application is devoid of any merit. 7. This Court in the case of Santosh Kumar Dash v. The State of Orissa and another, 1992 (I) OLR 498 has examined whether the interim release of a property can be made in favour of the accused. in question have not been produced before the learned J.M.F.C., Barbil. Therefore, the revision application is devoid of any merit. 7. This Court in the case of Santosh Kumar Dash v. The State of Orissa and another, 1992 (I) OLR 498 has examined whether the interim release of a property can be made in favour of the accused. At paragraph 12, the Division Bench has held that in law there is no bar to consider the claim of an accused to get back the property and, on such a claim being made, the Magistrate shall apply his mind to the relevant facts and circumstances and he would be within his rights to concede to the prayer of the accused if he would be satisfied that the accused was in lawful possession of the property when it was seized from him. As to when an accused could be said to be in lawful possession of the seized property is a question which has to be decided on the facts of each case, about which no prescription can be made. 8. As regards non-production of the documents relating to the possession and title of the Unit in question, the Court comes to the conclusion that the documents are inside the premises of he Unit, which has been seized by the police. It can be reasonably concluded that the petitioner cannot produce these documents before the Court. Further, such difficulty can be obviated by stipulating that the petitioner shall produce those documents within a given time. 9. In that view of the matter, the revision application is allowed and the order dated 23.03.2012 passed by the learned J.M.F.C., Barbil in G.R. Case No. 498 of 2010 is hereby set aside. The petition filed by the petitioner under Section 457 of the Code is hereby allowed. The learned J.M.F.C. is directed to release the Unit in question in favour of the petitioner on the following conditions: (1) That the petitioner shall execute an indemnity bond for a sum of Rs.25,00,000/-(Rupees twenty-five lakhs); and (2) He shall give an undertaking that he shall produce all relevant papers regarding the ownership and possession of the machineries, vehicles etc. before the learned J.M.F.C., Barbil within fifteen days of release of the Unit in his favour. before the learned J.M.F.C., Barbil within fifteen days of release of the Unit in his favour. In case of failure in complying with the second condition, the learned J.M.F.C. may direct re-sealing of the Unit in question by the Joda Police without any further reference to this Court. With the aforesaid observation, the Revision Application is allowed.