Suresh Kumar Sahoo vs State Of Odisha
2023 Latest Caselaw 1823 Ori

            HIGH COURT OF ORISSA: CUTTACK

                     CRLREV No.106 of 2021
   (From the order dated 20.08.2020 passed by learned 1st Additional
   Sessions Judge, Cuttack in Criminal Misc. Case No.20 of 2020)
                              -----------

   Suresh Kumar Sahoo                         ...     Petitioner

                                - Versus -

   State of Odisha                            ...     Opposite Party

       For Petitioner                  ...      Ms. Deepali Mahapatra,
                                              Advocate

       For Opposite Party              ...      Mr. M.R. Mishra,
                                              Additional Standing Counsel

                             --------------

   PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 23.06.2022 Date of judgment : 28.02.2023

A.K. Mohapatra, J. This Criminal Revision has been filed by

the Petitioner under Section 401 read with Section 397 of the

Code of Criminal Procedure challenging the order dated

20.08.2020 passed by the 1st Additional Sessions Judge,

Cuttack in Criminal Misc. Case No.20 of 2020 thereby // 2 //

rejecting the application filed by the Petitioner under Section

457 of Cr.P.C. for release of the seized article in connection

with Spl. G.R. Case No.30 of 2020, arising out of Tangi P.S.

Case No.75 of 2020.

2. The factual matrix of the case, in brief, is that the A.S.I.

of Police, DRIEMS Out Post as an Informant, lodged an

F.I.R. on 14.05.2020, inter alia, alleging that he along with

other police officers were performing patrol duty within the

territorial jurisdiction of the Police Station. At about 8.30

P.M. the Informant got information regarding illegal

transportation of electric aluminum cut piece cables loaded in

a Pick-up Van bearing Registration No.OR-07-N-0225 which

was coming from Bhatimunda side towards Tangi. Upon

getting such information, the Informant along with other

police staff proceeded towards the spot and detained the Pick-

up Van near DRIEMS Chhak. On being asked. The driver of

the vehicle was unable to produce any valid document in

respect of the goods loaded in the Pick-Up Van. The Pick-up // 3 //

Van was loaded with electric aluminum cut piece cables.

Accordingly, the driver of the vehicle was arrested and the

vehicle was seized.

3. The Petitioner is the owner of the vehicle as well as the

goods loaded in the said vehicle. It has also been pleaded that

the Petitioner was doing business in scrap materials. Further,

it has been pleaded that an e-auction took place for disposal

of scrap conductor of different sizes being conducted by the

NESCO and, accordingly, the Petitioner participated in the e-

auction. Since the bid was finalized in favour of the

Petitioner, the Petitioner had lifted the materials, which

weighed around 107 metric tons. It has also been stated in the

revision petition that the Petitioner was taking delivery in a

phased manner and selling those articles to different

companies.

4. On 14.05.2020, the Petitioner was transporting one such

consignment for delivery to Binayak Aluminum Ltd. having

all valid documents. However, the police party with ulterior // 4 //

motive seized the vehicle and the materials despite

submission of all valid documents by the Petitioner.

5. After the materials and Pick-up Van were seized by

police, the Petitioner filed an application under Section 457 of

Cr.P.C. bearing Misc. Case No.02 of 2020 before the 1st

Additional Sessions Judge, Cuttack with a prayer to release

his vehicle along with the scrap materials, the learned Trial

Court rejected the petition dated 05.06.2020 filed by the

Petitioner under Section 457 of Cr.P.C. The order dated

05.06.2020 was challenged before this Court in CRLREV

No.315 of 2020. This Court disposed of the Criminal

Revision No.315 of 2020 by granting liberty to the Petitioner

to renew his prayer by filing a fresh application for release of

the seized articles and further it was directed that if such an

application is filed, the same shall be considered on its own

merit and shall be disposed of in accordance with law.

6. Pursuant to order passed in CRLREV No.315 of 2020,

the Petitioner again moved an application under Section 457 // 5 //

of Cr.P.C. which was taken up by the Trial Court on

25.08.2020. The learned Trial Court vide impugned order

dated 20.08.2020 under Annexure-6 directed for only release

of the vehicle in question, i.e., Tata Pick-up Van bearing

Registration No.OR-07-N-0225 in favour of the Petitioner in

interim zima and was not inclined to pass any order to release

the articles, i.e., electric aluminum cut piece wire in zima of

the Petitioner. Being aggrieved by rejection of his prayer in

part vide order dated 20.08.2020 under Annexure-6, the

Petitioner has approached this Court by filing the present writ

petition.

7. Heard Ms. Deepali Mohapatra, learned counsel

appearing for the Petitioner and Mr. M.R. Mishra, learned

Additional Standing Counsel appearing for the State-Opposite

Parties. Perused the writ petition as well as other relevant

materials placed before this Court for consideration.

8. It is submitted by Ms. Mohapatra, learned counsel

appearing for the Petitioner that the Petitioner is the owner of // 6 //

the vehicle as well as the materials that was being transported

in the vehicle. She further contended that the F.I.R. under

Annexure-4 has no nexus with the materials seized in the

present case. The materials that were seized from the vehicle

of the Petitioner on the date of occurrence were received by

the Petitioner from NESCO after his bid was successful in an

e-auction and that out of total quantity of 110 tones, only 7

tones were being transported by the vehicle in question

having valid documents.

9. Ms. Mohapatra, learned counsel appearing for the

Petitioner further contended that in view of the provisions

contained in Section 457 of Cr.P.C., the Magistrate while

directing deliver/release of the property has to ensure that the

same is delivered to the person who is lawfully entitled to the

possession thereof. A duty is cast upon the Magistrate to find

out as to who is the ostensible owner and further once the

ostensible owner of the seized property is established and

there is no other legal impediment, then the seized article are // 7 //

required to be given in zima of such ostensible owner with

such terms and conditions as would be deem fit and proper by

the learned Magistrate. It was also contended that at that

stage, the Magistrate is not supposed to deicide with regard to

the ownership of such seized articles. In such view of the

matter, Ms. Mohapatra, learned counsel for the Petitioner

submitted that the learned Magistrate conducted a roaving

inquiry with regard to the title of the seized articles and

ultimately committed an error by not releasing the articles

seized from the vehicle of the Petitioner in favour of the

Petitioner although the Petitioner had produced documents

with regard to the ownership of such articles.

10. Learned counsel for the Petitioner also contended that

the materials were seized while it was in transit. Admittedly,

the vehicle in question belonged to the Petitioner and the

same was rightly released in favour of the Petitioner.

However, while releasing the seized articles, the learned Trial

Court committed an error by not releasing the same in favour // 8 //

of the person from whose lawful possession such articles

were seized and recovered. It is also contended that usually

while considering the application under Section 457 of

Cr.P.C., the learned Magistrate releases the article in favor of

a person from whose lawful possession the same is released

or to a person who can establish the fact that he is the

ostensible owner of such seized property. In such view of the

matter, learned counsel for the Petitioner urged that the

impugned order is unsustainable in the eye of law and a part

of the order by which the learned court below has rejected the

prayer of the Petitioner for release of the article in favour of

the Petitioner be set aside and necessary direction may be

issued for release of such articles in favour of the Petitioner.

11. Learned Additional Standing Counsel appearing for the

State-Opposite Parties, on the other hand, while supporting

the impugned order dated 20.08.2020 under Annexure-6,

submitted that the Petitioner, who is the accused in Spl. G.R.

Case No.30 of 2020, was caught red-handed while // 9 //

transporting electric aluminum cut piece wires illegally

without any document which was subsequently seized. It was

further contended that since the trial is pending, at this stage it

cannot be finally decided as to who is the owner of the seized

articles. It was also contended that the Authorized Officer,

i.e., the Superintending Engineer (Electrical), CESU, Cuttack

has already been moved for initiation of a confiscation

proceeding in respect of the seized articles in terms of Section

6(1) of the Orissa Electric Supply Line Material (Unlawful

Possession) Act, 1988 (in short "the Act, 1988"). In such

view of the matter, learned Additional Standing Counsel

appearing for the State-Opposite Parties further submitted that

in the event the seized articles are released in favour of the

Petitioner, then there is a possibility that the Petitioner might

change the nature and character of the seized articles.

Additionally, it was also submitted that there exists a dispute

with regard to the ownership of the seized scrap materials.

Therefore, pending final adjudication of the dispute with // 10 //

regard to ownership of the seized articles, it would not be

proper to release the seized articles in zima of the Petitioner.

12. It was also contended by the learned Additional

Standing Counsel that while the learned 1st Additional

Sessions Judge, Cuttack was considering the application

under Section 457 of Cr.P.C. filed by the Petitioner, an

intervention application was filed at the instance of one Maa

Durga Thermal Power Company Limited claiming ownership

over the seized articles.

13. On perusal of the impugned order, it appears that the

same intervener had contended that it had started its operation

in the year 2012 at Bainchua, Tangi for generation/production

of power and to supply/sell the same to the Electricity Board

and other industries. Furthermore, for the aforesaid purpose,

electric conductors were installed at the thermal power plant

to the Grid sub-station at Chandikhole. The electric wires for

the aforesaid purpose were supplied by M/s. Tirupati

Construction. It was also contended by the intervener that the // 11 //

aforesaid power plant was about to start generation of power,

but due to lack of transpiration of raw materials, the power

generation activity could not be commenced. Thereafter, the

intervener came to learn that the aluminum conductor wires

were stolen by some unknown miscreants, for which, an

F.I.R, was lodged at Tangi Police Station leading to the

registration of P.S. Case No.74 of 2020 under Section 379 of

I.P.C. and, accordingly, the materials were seized by the

Tangi police although in connection with P.S. Case No.75 of

2020. Although the intervener had identified the materials at

the Police Station, however, the same was not released in his

favour. Accordingly, the intervener made a prayer before this

Court that the seized articles be released in their favour under

Section 457 of Cr.P.C. Further, in support of such contention,

the intervener filed several documents.

14. A close scrutiny of the impugned order also reveals that

the learned Court in seisin over the matter in course of

hearing of the application under Section 457 of Cr.P.C., // 12 //

called for a report from the IIC of Tangi Police Station. A

report was submitted before the Court below. Further, it has

been observed in the impugned order that on perusal of the

said report, the IIC, Tangi Police Station has stated that the

Pick-up Van in question was loaded with electric aluminum

wire cut pieces and as per the provisions under Section 6(1)

of the Act, 1988, a requisition has been sent to the

Superintending Engineer, Electrical, Cuttack for initiation of

a confiscation proceeding in respect of seized articles.

Moreover, the said report also reveals that on the complaint of

one Sanjib Kumar Jena, who was an employee of Maa Durga

Thermal Power Company Limited, Tangi, Tangi P.S. Case

No.74 of 2020 under Section 379 of I.P.C. has been registered

and the investigation is going on. In course of investigation,

the complainant has also identified the seized aluminum

wires. Since the investigation in the above noted P.S. case is

going on, the accused persons are yet to be arrested. The IIC

has also stated in the said report that although the seized // 13 //

vehicle is no more required for the purpose of investigation,

however, the seized articles are required for further

investigation in both the cases.

15. On perusal of the impugned order dated 20.08.2020

under Annexure-6, this Court observed that the learned 1st

Additional Sessions Judge, Cuttack has dealt with the

provisions of the Act, 1988 in detail. Further, Section-6 of the

aforesaid Act lays down the procedure regarding seizure of

electricity supply line materials. Section-7 of the said Act

provides for confiscation of the seized article by the

Authorized Officer. This Court further observed that the

learned court below has expressed doubt with regard to

procedure adopted by the IIC, Tangi P.S. while dealing with

the seized article. It has been specifically observed that the

seized articles were identified by the complainant in Tangi

P.S. Case No.74 of 2020. However, the I.O. has sent a

requisition to the Superintending Engineer, Electrical, Cuttack

for initiation of a confiscation proceeding in respect of the // 14 //

seized articles. Thus, the learned court below has expressed

its doubt with regard to the maintainability of a confiscation

proceeding under Section 7 of the Act, 1988. Further, the

learned court below has also observed that there exists a rival

claim with regard to the ownership of the seized article.

Accordingly, the court below has opined that the provisions

as contemplated under Sections-6 and 7 of the Act, 1988 has

not been fully complied by the I.O. or the Authorized Officer.

16. Additionally, the learned 1st Additional Sessions Judge,

Cuttack has expressed his doubt with regard to the

applicability of Section-7 of the Act, 1988. While saying so,

the learned court below has referred to a judgment of this

Court in the case of Debendra Kumar Sahoo v.

Superintending Engineer-cum-Authorized Officer, Balasore

Electricity Circle, Balasore, reported in (2012) 52 OCR-15.

This Court while considering a similar issue in Debendra

Kumar Sahoo's case (supra) has held that Section-7 of the

1988 Act has been deemed to have been repealed by // 15 //

necessary implication on the passing of Electricity Act, 2003

and, as such, the confiscation proceeding initiated under Act,

1988 after coming into force of 2003 Act is null and void and,

accordingly, an Ambassador Car carrying 4 bundles of

aluminum wires, which were seized by the police on

21.08.2003, were directed to be released in favour of the

owner of the Ambassador Car. In view of the law laid down

by this Court in Debendra Kumar Sahoo's case (supra), the

learned court below has categorically held that no proceeding

for confiscation of the seized electric wires shall lie under the

provisions of 1988 Act and the concession made by learned

Special P.P. in this regard has also been taken note of in the

impugned order, particularly to the effect that there exists no

provision like the one under Section-7 of the Act, 1988 in the

Electricity Act, 2003. Therefore, this Court has no hesitation

in coming to a conclusion that the seized articles are not liable

to be confiscated under Section-7 of the Act, 1988 and, // 16 //

accordingly, the same is to be dealt with in view of the

provisions contained under Section 457 of the Cr.P.C.

17. So far as the seized vehicle in question is concerned,

which is a Tata Pick-up Van, has been dealt with by the

learned 1st Additional Sessions Judge, Cuttack on an

application under Section 457 of Cr.P.C. by the owner vide

impugned judgment dated 20.08.2020. On being satisfied

with the ownership of the vehicle as well as the report of the

I.O. that the vehicle is no more required for the purpose of

investigation, learned court below was pleased to release the

vehicle in favour of the Petitioner till disposal of Spl. G.R.

Case No.30 of 2020 pending before the said Court and further

such release is also subject to the terms and conditions

mentioned in the order dated 20.08.2020. On perusal of the

said part of the order, this Court finds no infirmity in the

impugned order dated 20.08.2020.

18. So far as release of the seized articles are concerned,

which are cut pieces of aluminum electric wires used for the // 17 //

purpose of transmission of electricity, learned court below

was not inclined to release the same in favour of the

Petitioner mainly on the ground that there exist rival claim

with regard to the ownership of such seized articles. Further,

while rejecting the prayer for release of the seized articles, the

learned court below has held that at that juncture the court is

not in a position to arrive at a definite conclusion with regard

to the ownership of the seized articles and, accordingly, no

appropriate order could be passed for release of such articles

in favour of the Petitioner. It was also observed that such

order for release of seized articles could be passed at a later

stage, i.e., after conclusion of the trial in the original case.

19. Having heard the learned counsel for the respective

parties and on a conspectus of the materials placed before this

Court and further upon a careful scrutiny of the impugned

order dated 20.08.2020 passed by the learned 1st Additional

Sessions Judge, Cuttack, this Court found that so far the

release of the vehicle is concerned, there is no infirmity and, // 18 //

accordingly, it is held that the learned court below has

adopted the right procedure. So far as the release of the seized

articles are concerned, this Court is of the considered view

that although the learned court below has referred to the

judgment of the Hon'ble Supreme Court in Sundarbhai

Ambalal Desai -Vrs.- State of Gujarat, reported in 2003 (24)

OLR (SC) 444, however, the principle laid down by the

Hon'ble Supreme Court has not been followed while

considering the application under Section 457 for release of

the seized article in the present case. Moreover, this Court by

following the principle laid down by the Hon'ble Supreme

Court in Sunderbhai Ambala Desai'case (supra) in the case of

Ashis Ranjan Mohanty (Adv.) v. State of Odisha and others,

reported in 2022(I) OLR-555 decided by a Division Bench of

this Court specifically laid down the procedure to be followed

by the Courts while considering the release of seized

articles/properties/vehicles. A Division Bench of this Court in

Ashis Ranjan Mohanty's case (supra) has specifically laid // 19 //

down a series of directions provided in Paragraphs-16 to 18 of

the judgment. Since the procedure laid down by the Division

Bench of this Court with regard to release of vehicle/seized

articles/properties has not been followed in the instant case,

this Court is of the considered view that so far release of the

seized articles are concerned, the matter needs to be

reexamined by the 1st Additional Sessions Judge, Cuttack by

taking into consideration the guideline issued by this Court in

Ashis Ranjan Mohanty's case (supra) and pass necessary

orders after providing opportunity to the affected parties

including the Petitioner.

20. In view of the aforesaid analysis, this Court deems it

proper to set aside the impugned order dated 20.08.2020

passed by the 1st Additional Sessions Judge, Cuttack in

Criminal Misc. Case No.20 of 2020 under Annexure-6 partly

and the part of the order whereby the 1st Additional Sessions

Judge, Cuttack has rejected the application under Section 457

of Cr.P.C. for release of the seized articles is hereby set aside.

// 20 //

Accordingly, the matter is remanded back to the Court of 1st

Additional Sessions Judge, Cuttack or any other Court in

seisin over the matter with a specific direction to consider the

application filed by the Petitioner under Section 457 of

Cr.P.C. keeping in view the directions issued by a Division

Bench of this Court in Ashis Ranjan Mohanty's case (supra)

after providing opportunity of hearing to the parties, who are

likely to be affected by the said order and to take a decision in

the matter expeditiously, preferably within a period of eight

weeks from the date of production of a certified copy of this

judgment.

21. Accordingly, the Criminal Revision is allowed.

However, there shall be no order as to cost.

(A.K. Mohapatra) Judge

Orissa High Court, Cuttack The 28th February, 2023/D. Aech, P.A.