Orissa High Court

Arun Kumar Agrawal vs State Of Odisha on 20 May, 2022

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLREV No.52 of 2022

         (In the matter of an Application under Section 401 read with
                            Section 397 of Cr.P.C.)

    Arun Kumar Agrawal                          ....             Petitioner

                                   -versus-

    State of Odisha                             ....        Opposite Party

   Appeared in this case:-
            For Petitioner             :      Mr. Arjuna Charana Behera,
                                              Advocate

            For Opposite Party         :      Mr. K.K. Nayak,
                                              Additional Standing Counsel
                                              for State
    CORAM:
    JUSTICE A.K. MOHAPATRA
                             JUDGMENT

Date of Hearing :04.03.2022 |Date of Judgment:20.05.2022

A.K. Mohapatra, J.

1. The present criminal revision petition has been filed by the

Petitioner under Section 401 read with Section 397 of Cr.P.C.

challenging the order dated 15.01.2022 passed by the learned

S.D.J.M., Birmaharajpur in Criminal Misc. Case (CMC) No.02 of

2022, arising out of 2(b)C.C. Case No.15 of 2021, corresponding to

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O.R. No.107 of 2021-22, arising out of U.D. Case No.6 of 2021-22,

thereby rejecting the petition under Section 457 of Cr.P.C. filed by

the Petitioner to release the vehicle bearing Registration No.OR-26-

5135 (Pick-up Van).

2. Heard learned counsel for the Petitioner and learned counsel for the State. Perused the case records.

3. It is seen from the impugned order that the application filed

by the Petitioner under Section 457 Cr.P.C. for release of the seized

vehicle has been rejected by the learned S.D.J.M. Birmaharajpur, on

the ground that a Confiscation Proceeding, vide O.R. No.107/2021-

22 is pending for adjudication before the court below. In such view

of the matter, the present Revision Petition has been filed for setting

aside the impugned order and for release of the vehicle in favour of

the Petitioner.

4. That on perusal of record, it was found that the vehicle in

question which was transporting timber illegally was seized during

course of investigation. Further the vehicle in question bearing

Registration No.OR-26-5135 (Pick-up Van) was registered on

09.10.2007 before the R.T.O., Nuapada in the name of the

Petitioner and the Petitioner is operating the said vehicle and

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maintaining the same in good condition. However, on 18.9.2021 it

was alleged by the Petitioner, that he gave his vehicle to his driver

which was let out on hire for transporting some articles but the

driver in connivance with some antisocial persons loaded logs of

teak wood unauthorizedly from the Ulunda Forest Range.

Thereafter, the vehicle was seized by the Forest Officials along with

the logs of teak wood which were being transported illegally.

Further case of the Petitioner is that the driver of the vehicle

without the knowledge and consent of the owner and in collusion

with the antisocial persons transporting logs of teak from Ulunda

Forest Range illegally and accordingly the vehicle was seized by

the Forest Officials and a case was registered against the Petitioner

under Section 56 of Orissa Forest Act, 1972 and Sections 4 and 12

of Orissa Timber and Other Forest Produce Transit Rules, 1980.

5. Learned counsel for the Petitioner submits that the vehicle

which was seized on 18.09.2021 is lying exposed to the Sun and

Rain in the Ulunda Range Office in the district of Subarnapur. The

driver of the vehicle has been arrested and forwarded to the judicial

custody. It is further submitted by learned counsel for the Petitioner

that the condition of the vehicle is deteriorating day by day as the

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same has remained stationary in the premises of Ulunda Range

Office, Subarnapur and further the same remains exposed to the

Sun and Rain causing gross devaluation of the vehicle in question.

He further contends that the vehicle stands recorded in the name of

the Petitioner and it has a valid insurance and that the vehicle is not

required for the investigation purpose. Further, learned counsel for

the Petitioner submits that the Petitioner is ready and willing to

produce the vehicle in the confiscation proceeding as and when the

same will be required by the Authorities.

6. A report was called for from the Range Officer, Ulunda,

Subarnapur by the learned court below and the Range Officer,

Ulunda submitted a report to the court below stating that the vehicle

is not required for further investigation. On an application filed

under Section 457 Cr.P.C. for release of the vehicle, the Petitioner

was asked by the court below to produce all original documents

relating to vehicle and the same was produced to the satisfaction of

the court below on 15.01.2022. Further after hearing the counsels

on the application under Section 457 Cr.P.C., learned court below

rejected the said application without taking into consideration the

fact that the vehicle is lying in the open place inside the Ulunda

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Range Office Campus, Subarnapur being exposed to the Sun and

Rain. On a close scrutiny of the impugned order dated 15.01.2022,

it appears that the learned court below has rejected the application

of the Petitioner mechanically.

7. The matter of vehicles lying on the road and in police

stations on being seized by the police in connection with various

offences under different laws engaged the attention of a Division

Bench of this Court in the matter of Ashis Ranjan Mohanty (Adv.)

vs. State of Odisha and others in (W.P.(C) No.31622 of 2021)

decided on 31.01.2022. After hearing the learned counsel for the

respective parties in the said matter, this Court came to learn that a

large number of seized vehicles are dumped in police station and as

such are causing encroachment on public road adjoining the police

station and further due to lack of proper care and maintenance and

by remaining exposed to Sun and Rain are being reduced to a piece

of junk very quickly thereby losing its market value. After a

thorough discussion on the issue, the Division Bench of this Court

has laid down a guideline to deal with such vehicles. Paragraph-16

of the said judgment deals with all vehicles is quoted herein below:

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"Vehicles

16. As regards the vehicles, the following directions are issued:

(I) Vehicles involved in an offence may be released either to the rightful owner or any person authorised by the rightful owner after

(a) preparing a detailed panchnama;

(b) taking digital photographs and a video clip of not more than 1 minute duration of the vehicle from all angles;

(c) encrypting both the digital photograph and the video clip with a hashtag with date and time stamp with the hash value being noted in the order passed by the concerned court;

(d) preserving the encrypted digital photograph and video clip on a pen drive to be kept in a secure cover in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court

(e) preparing a valuation report of the vehicle by an approved valuer;

(f) obtaining a security bond.

(II) The concerned court will record the statements of the complainant, the accused as well as the person to whom the custody of the vehicle is handed over affirming that the above steps have taken place in their presence. (III) Subject to compliance with (I) and (II) above, no party shall insist on the production of the vehicle at any subsequent stages of the case. The panchnama, the encrypted digital photograph and video clip along with the valuation report should suffice for the purposes of evidence.

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(IV) The Courts should invariably pass orders for return of vehicles and/or accord permission for sale thereof and if in a rare instance such request is refused, then reasons thereof to be recorded in writing should be the general norm rather than the exception.

(V) In the event of the vehicle in question being insured, the concerned Court shall issue notice to the owner and the insurance company prior to disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that he has claimed insurance/released his right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in public auction.

(VI) If a vehicle is not claimed by the accused, owner, or the insurance company or by a third person, it may be ordered to be sold by public auction."

8. Further in the judgment delivered by this Court in Ashis

Ranjan Mohanty's case (supra), this Court under the heading

'General Directions in Paragraph-17(v) has also provided a

safeguard, which is quoted herein below:

"17(v) If a person to whom the interim custody of the property/vehicle is granted is ultimately found not entitled to it, and is unable to return it, its value shall be recovered by enforcing the bonds and the security taken from such person or recovering the monetary value from him as arrears of land revenue."

9. So far the confiscation proceeding is concerned, this Court

is of the considered opinion that usually the same takes some time.

Further, if the vehicle in question is not released for interim period

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with terms and conditions for production of the vehicle at the time

of confiscation, there is every possibility that the condition of the

vehicle would grossly deteriorate and the same would not be sold at

the best possible price. Hence, keeping in view the fact that vehicles

are in stationary conditions either at the Police Station or at the

Forest Range Office, this court is of the view that the same would

not be beneficial to both the owner of the vehicle as well as for the

revenue. On the contrary, if the vehicle is released interimly in

favour of the true owner thereof on certain terms and conditions,

then the vehicle would not only be maintained properly but the

vehicle would not loose its value drastically.

10. Further, in the event of such interim release of the vehicle, the

value of the vehicle can be secured by insisting on collateral

security and further by ensuring that the vehicle is maintained by

the owner in a good condition and is produced before the

Authority/Court at the time of confiscation, the interim release of

the vehicle subject to the condition that the same shall be

maintained in a good condition and shall be produced before the

Authority in the confiscation proceeding which would be in the best

interest of justice and the same would also be in furtherance of the

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aim and objective of the judgment of this Court in Ashis Ranjan

Mohanty's case (supra).

10. It is also relevant to mention here that if the vehicle is kept

stationary or stranded at a particular place under the supervision and

custody of the government officials/police officers, in such

eventuality, the government would be required to spend a huge

sum of money for the safety of the vehicles as well as for

maintenance of the vehicle till the confiscation proceeding comes to

an end. Keeping in view the aforesaid practical problems the law

makers have incorporated the provision like Sections 451 and 452

of Cr.P.C. Section 451 of Cr.P.C. confers wide powers on the trial

court to pass necessary orders for custody and disposal of the

property pending trial. A close scrutiny of the provision contained

under Section 451 of Cr.P.C. would clearly reveal that the trial

court is vested with wide powers to deal with the seized property as

it thinks fit for the proper custody of such property pending

conclusion of the enquiry or trial, and, if the property is subject to

safety and natural decay, or if it is expedient so to do, the court may

after recording such evidence as it thinks necessary, order it to be

sold or otherwise disposed of.

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11. Furthermore, a bare reading of Section 457 of Cr.P.C. gives

a clear impression that in a criminal enquiry/trial, the Magistrate

have been vested with wide powers to pass such orders as they may

think fit for disposal of such property or for delivery of such

property to the persons entitled to the possession thereof lawfully

with a condition for production of such property as and when the

same will be required by the court.

12. Sub-section 2 of Section 457 of Cr.P.C. provides that the

Magistrate may order the property to be delivered to a person

lawfully entitled on such condition as the Magistrate may think fit

and if such person is unknown, the Magistrate may detain it and

shall, in such case, issue a proclamation specifying the articles of

which such property consists, and requiring any person who may

have a claim thereto, to appear before him and establish his claim

within six months from the date of such proclamation. Therefore,

there exists no bar in law for interim release of the vehicle in favour

of a known owner of the vehicle.

13. It is also well known that so far a running vehicle is

concerned, every day matters as the vehicle requires some kind of

maintenance daily. Therefore, a few days or may be weeks

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detention can also cause damage/decay/deterioration in the

condition of the vehicle and thereby the vehicle would lose its

market value. At the interim stage, the court should be concerned

about the condition of the vehicle and possibly take all steps so that

the value of the property does not deteriorate due to delay in

disposal of cases. It is because, if the value of the vehicles get

decreased, the same would not be beneficial either to the owner of

the vehicle or to the government. In other words keeping the

vehicles stranded and allowing the condition of the vehicle to

deteriorate and sometimes valuable parts of the vehicle are stolen

due to lack of adequate safety arrangements would be colossal

waste for the entire nation cumulatively.

14. Under the aforesaid circumstances, the courts have to strike

a balance between the two extreme factors and accordingly consider

the application of Section 457 Cr.P.C. by taking into consideration

certain major factors like :-

i) Whether the vehicle is required for the purpose of investigation/trial?

ii) When and how soon it is required for the aforesaid purpose?

iii) How long the vehicle is likely to be kept in stationary or in strand condition?

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iv) Whether the vehicle can be kept at a safe and secure place?

v) Whether there is adequate provision to ensure that the vehicle does not get exposed to the adverse effects of the Sun and Rain?

vi) Whether there is any possibility of theft of parts of the vehicle?

vii) What would be the additional expenses that is likely to be incurred for the safety and maintenance of the vehicle?

All these are the questions that is required to be taken into

consideration while considering the application under Section 457

Cr.P.C. Considering the volume of vehicles that are seized and kept

in police stations or in other government offices or in public roads,

it is difficult on the part of the court or the government offices to

provide safety and security and also to ensure proper care and

maintenance.

15. Considering all the aforesaid aspects and taking into

consideration the huge problem that is faced by the courts and every

police station and Forest Offices in the entire State, this Court is of

the considered view that two courses are left open to the

court/authority for dealing with the vehicles in connection with the

alleged offence:

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i) Either the vehicle has to be immediately sold by putting the same to public auction; or

ii) Hand over the seized vehicle to the ostensible owner or in custody of a person who in turn shall produce the same as and when the vehicle would be required by the court/authority.

Further there are certain Special Acts which provides for

immediate confiscation and sale of the vehicle. However, there are

also other Acts, which provides that the confiscation proceeding can

only be initiated after conclusion of the trial.

16. The aforesaid legal anomaly can be best taken care of by

taking resort to the provision contained in Section 457 of Cr.P.C.

which permits the interim release of the vehicle. Such interim

release could be for shorter duration and with certain terms and

conditions whereby the owner has to furnish a bond, provide

collateral security, provide an undertaking to produce the vehicle as

and when it is required, shall not change, alter the vehicle and shall

not create any third party interest etc. etc. Further, if the interim

release is allowed in favour of a person who is the ostensible owner

of the vehicle as has been held by this Court in the case of Ashis

Ranjan Mohanty's case (supra) the deterioration of the condition

of the vehicle and the loss of commercial value of the vehicle would

be seized to a large extent and thereby a huge national waste could

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be prevented by resorting to such procedure. It is needless to

mention here that the courts/authorities are not devoid of power to

impose any suitable terms and conditions while releasing the

vehicles for an interim period. Further, the apprehension of the

learned counsel for the State that the Petitioner might sell the

vehicle once the same is released and he may not produce the

vehicle as and when the same is required by the court/ authority can

also be very well taken care of by sending intimation to the

RTO/RTA not to transfer the vehicle till the trial/proceeding is

concluded. Further upon issuance of a NOC, the Registering

Authority may change the ownership. Such an arrangement would

definitely take care of the apprehension of the State Counsel in the

present context.

17. In view of the discussion made hereinabove, this Court

deems it proper to allow the criminal revision petition by setting

aside the order dated 15.01.2022, passed by the learned S.D.J.M.,

Birmaharajpur, in Criminal Misc. Case(CMC) No.02 of 2022,

arising out of 2(b)C.C. Case No.15 of 2021, corresponding to O.R.

No.107 of 2021-22, arising out of U.D. Case No.6 of 2021-22.

Further, this Court thinks it proper and in the larger interest of

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justice, the vehicle in question bearing Registration No.OR-26-5135

(Pick-up Van) should be released interimly in favour of the

recorded owner subject to the following terms and conditions as

laid down by the Division Bench of this Court in the case of Ashis

Ranjan Mohanty (supra) paragraph 16 (I) (a) to (f) which has been

quoted here in below:

(I) Vehicles involved in an offence may be released either to the rightful owner or any person authorised by the rightful owner after ;

(a) preparing a detailed panchnama;

(b) taking digital photographs and a video clip of not more than 1 minute duration of the vehicle from all angles;

(c) encrypting both the digital photograph and the video clip with a hashtag with date and time stamp with the hash value being noted in the order passed by the concerned court;

(d) preserving the encrypted digital photograph and video clip on a pen drive to be kept in a secure cover in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court

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(e) preparing a valuation report of the vehicle by an approved valuer;

(f) obtaining a security bond.

18. The interim release of the vehicle shall also be subject to further

condition as follows:

(i) The petitioner shall not transfer or dispose of or create any third party interest in any manner whatsoever in respect of the offending vehicle to anyone else and shall not make any change in its body, colour or Engine;

(ii) 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 and subject to reasonable wear and tear the vehicle shall be kept in a good condition;

(iii) He shall keep the vehicle insured at all times and produce the Insurance Certificate before the Trial Court as and when called upon;

(iv) The Petitioner or his agent authorized person shall produce the vehicle before the concerned court as and

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when the same would be required in a confiscation proceeding by the court;

(v) An intimation shall be given to the RTO/RTA under whose jurisdiction the vehicle has been registered not to allow transfer of ownership/creation of any charge hypothecation etc/grant NOC etc. in respect of the offending vehicle without the permission of the court in seisin over the matter;

(vi) The petitioner shall also file an undertaking before the Trial Court that the offending vehicle shall not be used for commission of any offence of similar nature.