Diptiprava Sahu vs State Of Odisha ....... Opp. Party
2024 Latest Caselaw 10222 Ori

Orissa High Court

Diptiprava Sahu vs State Of Odisha ....... Opp. Party on 20 June, 2024

       THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLMC No.1234 of 2024
(In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
                                        -----------

Diptiprava Sahu                           .......                           Petitioner

                                       -Versus-

State of Odisha                           .......                          Opp. Party


       For the Petitioner         : Mr. Abhilash Mishra, Advocate

       For the Opp. Party        : Mr. P.K. Maharaj, Addl. Standing Counsel


CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

                              JUDGMENT

_________________________________________________________ Date of Hearing: 09.05.2024 : Date of Judgment : 20.06.2024 _________________________________________________________

S.S. Mishra, J.

1. The petitioner has moved an application U/S. 457 Cr.P.C. r/w Section-52(a) of the NDPS Act for release of her CRETA 1.5 MPL MT SX car bearing Registration No.0D-02-CL-4207, which has been turned down by the Court below.

2. On 21.11.2023, P.R. Case No.1851of 2023-24 was registered on the allegation that 140 Kgs. of ganja was carried in a CRETA car bearing Registration No.OD-02-CL-4207. The vehicle was seized along with accused persons carrying the ganja. The petitioner claimed

to be the original owner of the CRETA car. He moved an application U/s.457 Cr.P.C for interim release of the said vehicle on the ground that he was not an accused in the NDPS case wherein the car was seized and being the registered owner of the said vehicle, he is entitled to the interim zima of the car. He has also contended that he had no knowledge about the vehicle being used for the alleged crime. Therefore, Section 60(3) of the NDPS Act shall not be operated against him for release of the said vehicle.

The application was opposed by the prosecution on the ground that Section 60(3) of the N.D.P.S. Act provides for confiscation of the vehicle used in the commission of the offence. Therefore, an application U/S. 457 of Cr.P.C r/w Section 52(A) of the N.D.P.S. Act is not maintainable. It is the statutory Scheme that the seized vehicle in N.D.P.S. case is liable to be confiscated U/s. 60(3) of the N.D.P.S Act, unless it is clearly established that the said vehicle was used by the accused persons without the knowledge of the owner. In this case, the petitioner has claimed the interim release of vehicle in his favour on the ground that he had no knowledge that the vehicle was being used in the crime.

3. Learned Court below rejected the application of the petitioner, inter alia, stating as under:

"Having gone through the above two provisions, it is found that there is only clear cut provisions U/s. 60(3) of NDPS Act for confiscation of the vehicle, if the owner fails to establish that her vehicle has been used by the accused persons without her knowledge. In the present case, on bare reading of petition filed U/s. 457 Cr.P.C., there is nothing specifically written that the said vehicle was used by the accused persons for transportation of ganja was not in the knowledge of the owner. She only demanded to release the vehicle under the ground that her vehicle is necessary for regular work and to maintain his livelihood."

4. Learned trial Court primarily rejected the application moved by the petitioner U/S. 457 Cr.P.C r/w Section-52A(1) of the N.D.P.S. Act and refused the interim release of the vehicle on the ground that disposal of the seized vehicle involved in the N.D.P.S. case and confiscation of the vehicle is contemplated under the NDPS Act. The N.D.P.S. Act being a Special Act overrides the provisions of the general law, i.e., the Cr.P.C. Therefore, the application U/s. 457 Cr.P.C. is not tenable on the face of special statutory provision. The reasoning of the Court below appears to be contrary to the law laid down by various High Courts as well as the Hon'ble Supreme Court in regard to the interim release of the vehicle involved in the offence under NDPS cases. Our own High Court in a judgment in the case of Ratnakar Behera vs. State of Odisha passed in CRLMC No.985 of 2020 has held as under:

"7. In addition to this, several High Courts have held that mere initiation of confiscation proceeding cannot act as a bar for delivery of the vehicle to its owner when the owner of the registered vehicle has not been found guilty. Allahabad High Court in the cases of Kamal Jeet Singh v. State, Mohd. Hanif v. State of U.P. and Jai Prakash Sharma vs. State of U.P. have reiterated the same. The ratio decidendi as provided in Jai Prakash Sharma vs. State of U.P. (supra) is as follows:

"5. The revisionist had no knowledge or information of the liquor alleged to have been recovered from the truck. He is not a party to the aforesaid two cases pending before the District Magistrate, Etawah nor has any notice been issued to him the revisionist Jai Prakash Sharma, therein. The mere pendency of the confiscation proceedings is no bar to the release of the truck. The matter is still under investigation. The truck lying at the police station will, if not released, yet damaged, ruined and rusted, not only this, but it will also ultimately become un- useable and un-serviceable for various obvious reasons."

5. Further, our High Court also ruled in Balabhadra Nayak vs. State of Orissa case reported in 2013 (I) OLR- 820 that :

"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 Kishore Kumar Choudhury vs. State of Odisha, reported in 2017 (II) ILR-CUT-689, this Court held as under:

"In view of the submissions made by the learned counsel for the respective parties and taking into account the ratio laid down in the aforesaid cases, I am of the view that the learned Sessions Judge was not justified in rejecting the petition under section 457 of Cr.P.C. relying on the provision under section 60(3) of the N.D.P.S. Act. The conditions stipulated for not confiscating the vehicle after the end of trial as per section 60(3) of the N.D.P.S. Act i.e. it was so used without the knowledge or connivance of the owner himself, his agent, if any and the person-in-charge of the vehicle and that each of them had taken all reasonable precautions against such use, is not applicable at the stage of consideration of interim release of the vehicle under section 457 of Cr.P.C."

The Hon'ble Supreme Court has been pleased to formulate broad and general guideline to deal with such application in the case of Sunderbhai Ambalal Desai and others vs. State of Gujarat, reported in SLP (Crl.) 2745 of 2022 and held as under:

"7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;

2. Court or the police would not be required to keep the article in safe custody ;

3. If the proper panchanama before handling over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."

From the discussion of the aforementioned judgments, the law clearly emerges that Section 60(3) of the N.D.P.S. Act doesn't create an absolute bar for interim release of the vehicle rather it contemplates initiation of confiscation proceeding subject to the owner of the vehicle proving that he had no knowledge or he had not connived for commission of the offence.

6. Perusal of the impugned order indicates that the application of the petitioner filed U/S. 457 Cr.P.C. has been rejected solely on the ground that Section 60(3) of the NDPS Act creates a bar for release of the vehicle seized in the course of the commission of the offence under the Act. However, contrary to the finding of the Court below, this Court has laid down the law that mere filing of the confiscation proceeding shall not operate as a bar to release the vehicle U/S. 457 Cr.P.C. unless the confiscation proceeding is concluded and appropriate orders are passed.

7. Learned counsel for the petitioner also relied upon two judgments of this Court in the cases of Aswini Kumar Das vs. State of Odisha passed in CRLMC No.174 of 2022 and Ratnakar Behera vs. State of Odisha passed in CRLMC No.985 of 2020. In the case of Aswini Kumar Das (supra), the relevant para-15 reads as under:

"15. Thus, from a conspectus of the analysis made herein before, the following position emerges:-

(i) The vehicle in question has not been produced before the Authorized Officer.

(ii) The so called confiscation proceeding is no proceeding in the eye of law.

(iii) The vehicle is lying unused and exposed to the elements for more than a year.

(iv) The bar under Section 72 shall not apply to the case at hand for which the provision under Section 457 of Cr.P.C. can be invoked for interim release of the vehicle."

The judgments cited by the petitioner although are relating to excise offences and deals with statutory bar contemplated under Section 72 of the Bihar and Orissa Excise Act, but the broad principle evolved from all the judgments is that the statutory bar created under special statutes shall not operate as absolute bar to consider application either under Section 451 or Section 457 Cr.P.C.

8. The impugned order is weighed taking into consideration the aforementioned judgments of our own High Court as well as the Hon'ble Supreme Court. It is found that the vehicle CRETA bearing Registration No.0D-02-CL-4207 was involved in illegal carrying of 140 kgs. ganja and was seized by the police. Accordingly, the F.I.R. in Boinda Excise P.R. No.185 of 2023 corresponding to Spy (NDPS) Case No.19 of 2023 was registered against the accused persons for the offence U/S. 20(b)(ii)(C) of the NDPS Act. The present petitioner is not an accused in that case.

9. The petitioner claims to be the owner of the vehicle and is not the accused in the N.D.P.S. Case. Therefore, he moved an application before the Court below seeking interim release of the vehicle U/S. 457 Cr.P.C. The Court below rejected the application construing Section

52A(1) and Section 60(3) of the NDPS Act as a statutory bar and has held that the application under the general provision of Section 457 Cr.P.C. for release of the vehicle cannot find favors on the face of special provision under the NDPS Act regarding the disposal and confiscation of the vehicle involved in the commission of the crime.

10. Regard being had to the position of law as discussed above, I am not inclined to agree with the view of Court below. The Court below ought to have decided the application of the petitioner on its own merit instead of dismissing the same on technical grounds. Hence, the impugned order dated 05.03.2024 passed by the learned Addl. Sessions Judge, Athamallik in Criminal Misc. No.04 of 2024 is set aside and the petitioner is granted leave to move a fresh application before the Court below U/S. 457 Cr.P.C. If such application is filed before the Court below, the same shall be considered afresh on its merits.

11. The CRLMC is accordingly disposed of.

..................

S.S. Mishra (Judge)

Orissa High Court, Cuttack The 20th June, 2024/Subhasis Mohanty, Personal Assistant