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2017 DIGILAW 98 (ORI)

Bijoy Kumar Sahoo v. State of Orissa

2017-01-20

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. 1. This revision has been filed by the petitioner Bijoy Kumar Sahoo challenging the impugned order dated 16.08.2016 passed by the learned J.M.F.C. (Rural), Cuttack in Criminal Misc. Case No. 106 of 2016 in rejecting the petition under section 457 Cr.P.C. filed by the petitioner for release of Truck bearing registration no. OR-05-AQ-6099, Engine no. JAP102510, Chassis no. MB1CTDYC6BPAA4985 which was seized by the opposite party Mining Officer, Cuttack Circle, Cuttack. 2. It is the case of the petitioner that on 12.01.2016 at about 4.45 a.m., on a surprise checking of the Mining Officer, Cuttack Circle, Cuttack, it was found that the vehicle in question was parking near Tangi under Tangi police station being loaded with Coal (Minerals). On the demand of the Mining Officer, since the driver of the vehicle could not produce any valid document in support of the loaded coal in the Truck, the vehicle was seized and it was kept in the custody of the Mining Officer. It is the further case of the petitioner that the petitioner is the registered owner of the vehicle and he was not aware about the transportation of coal in his vehicle without valid document. 3. The petition filed by the petitioner for release of the truck was rejected by the learned Magistrate on the ground that no report has been filed before him in connection with the seizure of the vehicle and more over, the confiscation proceeding has already been started and therefore, he lacks jurisdiction to entertain the said application. 4. The learned counsel for the petitioner challenging the impugned order contended that the observation of the learned Magistrate that he has no jurisdiction to entertain an application under section 457 Cr.P.C. is erroneous and suffers from non-application of mind. He further submitted that even though no report regarding the seizure of the vehicle has been reported to the Court, nonetheless since there is no dispute about the seizure of the vehicle and the petitioner has brought the factum of seizure to the knowledge of the Court, the Court should have verified the same from the concerned authority and should not have rejected the petition in a mechanical manner. 5. Learned counsel for the petitioner placed reliance in the case of Tafzil Sarwar -Vrs.-The Dy. Director, Mines Joda Circle reported in Vol. 5. Learned counsel for the petitioner placed reliance in the case of Tafzil Sarwar -Vrs.-The Dy. Director, Mines Joda Circle reported in Vol. 120 (2015) Cuttack Law Times 974 wherein this Court held as follows:- “9. Placing reliance on the law laid down in the case of Baijnath -Vrs.-State of Bihar : A.I.R. 1970 S.C. 1436 so also this Court in the case of M/s. Jai Durga Iron Pvt. Ltd. -Vrs.-Superintendent of Police, Sundergarh and another : (2006) 34 Orissa Criminal Reports 655 & M/s. T.R. Chemicals : A.I.R. 2008 Orissa 126, this Court is of the view that when the superior legislation specifically empowers a Court, for disposal of the property seized under Section 21(4) of the MMDR Act, the Rule made by the State Government for disposal of such property authorizing another authority besides the Court competent, is inoperative inasmuch as the same is contrary to the statutory provisions under the MMDR Act and the State Government in its rule making power under Section 23-C of the MMDR Act could not have authorized any other authority for confiscation of the same. Therefore, since the competent authority has no power to confiscate the property as aforesaid, the impugned order of confiscation was without jurisdiction and an appeal against such order of confiscation under Rule-12(7) of the Orissa Minerals Rules, 2007 does not lie to the District Judge. Hence, this writ petition stands allowed and the impugned order of confiscation at Annexure-2 stands set-aside. The petitioner is at liberty to seek release of his vehicle in question seized by the competent authority before the appropriate forum, i.e., the Court which is empowered to dispose of the property seized in this case by the competent authority.” 6. Learned counsel for the petitioner further placed reliance in the case of Smt. Sudha Kesarwani -Vrs.-State of U.P. reported in 2011(2) Allahabad Criminal Rulings 1946 wherein it is held as follows:- “6. Section 21(4-A) is specific on the point that a competent Court i.e. Magistrate is competent to confiscate the vehicle and is also competent to dispose it of in accordance with directions given by it. The District Magistrate or the Collector or any authority has not been given power to confiscate the vehicle either under the Act, or in the Rules. Section 21(4-A) is specific on the point that a competent Court i.e. Magistrate is competent to confiscate the vehicle and is also competent to dispose it of in accordance with directions given by it. The District Magistrate or the Collector or any authority has not been given power to confiscate the vehicle either under the Act, or in the Rules. This power is reserved for the Court, which is a competent to try the case after a complaint in respect of which same has been filed by the District Magistrate. 7. In this view of the matter, it cannot be said that the Magistrate has no jurisdiction to release the vehicle pending trial or even before the trial as the complaint has not yet been filed by the competent authority. The District Magistrate or Judicial Magistrate cannot compel the petitioner to compound the case against her will. If the Petitioner is not ready to compound the case, she cannot be compelled to do so. Since the complaint has not yet been filed even after a period of nine months from the incident, a vehicle lying at the police station is likely to become junk, and it was desirable for the Magistrate to pass an order for release in favour of its registered owner subject to certain conditions, which he might impose. 8. Even under Section 457 Code of Criminal Procedure, learned Magistrate had the jurisdiction to release the truck in favour of its registered owner since there is no other provisions in either the Act or the Rules for release of the vehicle. 9. In view of the aforesaid, the order passed by the learned Magistrate is void-ab-initio. Learned Magistrate has failed to exercise the jurisdiction vested in it. 10. Under normal circumstances, a proper remedy for the petitioner was to file a revision but in the instant case, revision was not filed and the same has become time barred and also since the impugned order is void-ab-initio, and since the impugned order is patently erroneous and illegal, there are sufficient grounds to interfere in the writ jurisdiction. 11. Learned Magistrate has ample authority to release the vehicle under Section 21(4-A) of the Act as well as Section 457 Code of Criminal Procedure. 12. The writ petition is allowed. Impugned order dated 15.2.2010 is quashed. 11. Learned Magistrate has ample authority to release the vehicle under Section 21(4-A) of the Act as well as Section 457 Code of Criminal Procedure. 12. The writ petition is allowed. Impugned order dated 15.2.2010 is quashed. Learned Magistrate is directed to decide the release application afresh within a period of one week from the date on which a certified copy of this order is produced before him.” 7. Learned counsel for the State on the other hand while not accepting the observation made by the learned Magistrate that he has got no jurisdiction to entertain an application under section 457 Cr.P.C. placed the decision of this Court in the case of Jamini Krishna Pattnaik -Vrs.-State of Orissa reported in (2012) 52 Orissa Criminal Reports 650 wherein it is held as follows:- “On a conjoint reading of the aforesaid provision, 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. 8. 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 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.” 9. It is stated by the learned counsel for the State that the report regarding seizure of the vehicle with coal has not been made to the Court of learned J.M.F.C. (Rural), Cuttack till date. It is stated by the learned counsel for the petitioner that the petitioner does not agree to get the offence compounded. It is stated by the learned counsel for the State that the report regarding seizure of the vehicle with coal has not been made to the Court of learned J.M.F.C. (Rural), Cuttack till date. It is stated by the learned counsel for the petitioner that the petitioner does not agree to get the offence compounded. Sub-rule (2) of Rule 12 of the Orissa Mineral (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 provides that after seizure of any property under sub-rule (1), if the offender does not agree in writing to get the offence compounded, the report of such seizure has to be made to the Court competent to take cognizance of the offence or it has to be produced before the Competent Authority having jurisdiction. Since confiscation of any property seized under sub-section (4) of section 21 of the Mines & Minerals (Development & Regulation) Act, 1957 (hereafter ‘1957 Act’) has to be made by an order of the Court competent to take cognizance of offence as per sub-section 4-A of the said section 21 of 1957 Act and such Court is also empowered to take a decision in the matter of release of the seized property in accordance with law, there was no justification on the part of the opposite party in not reporting the seizure of property till date even though seizure was made on 12.01.2016. 10. Therefore, it is directed that the opp. party i.e. Mining Officer, Cuttack Circle, Cuttack shall submit a report relating to the seizure of the vehicle with coal to the learned J.M.F.C. (Rural), Cuttack within a period of one week from today. If after the receipt of such report by the Magistrate, the petitioner files any application under section 457 Cr.P.C. afresh, the same shall be adjudicated by the learned Magistrate in accordance with law without being influenced by the earlier rejection order as he has power to entertain such application. The application filed by the petitioner under section 457 Cr.P.C. shall be disposed of as expeditiously as possible preferably within a period of two weeks from the date of filing of such application. The application filed by the petitioner under section 457 Cr.P.C. shall be disposed of as expeditiously as possible preferably within a period of two weeks from the date of filing of such application. However it is made clear that the opinion expressed in this order on the question of law would not be taken to have been expressed anything on the merits of the petition under section 457 Cr.P.C. which is sought to be filed by the petitioner and the same is to be decided strictly in accordance with law adverting to the contentions raised by the respective parties. 11. With the aforesaid observations and directions, the Criminal Revision petition is disposed of. 12. A free copy of the order be handed over to the learned counsel for the State for compliance. 13. A copy of the order shall also be communicated to the concerned Court.