State Of Odisha & Another vs Sai Chanda Sahu .... Opp. Party
2024 Latest Caselaw 8159 Ori

Orissa High Court

State Of Odisha & Another vs Sai Chanda Sahu .... Opp. Party on 2 May, 2024

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                           CRLMC No.1336 of 2024

              State of Odisha & another           ....     Petitioners

                                                    Mr. P.K. Maharaj,
                                        Additional Standing Counsel.


                                       -versus-

              Sai Chanda Sahu                     ....     Opp. Party

                                       Mr. Amitav Tripathy, Advocate


             CORAM:
                       JUSTICE SIBO SANKAR MISHRA
                                     ORDER

Order No. 02.05.2024

04. 1. Heard Mr. P.K. Maharaj, learned Additional Standing Counsel for the State and Mr. Amitav Tripathy, learned counsel for the opposite party.

2. This petition has been filed under Section 482 of Cr.P.C. is directed against the order dated 04.12.2023 passed by the learned Sessions Judge, Kandhamal, Phulbani in Criminal Revision No.02 of 2023 by which the Revisional Court has upheld the order dated 23.06.2023 passed by the learned S.D.J.M., Phulbani in Misc. Case No.85 of 2023 directing release of the seized vehicle in favour of the opposite party.

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3. A red colour Mahindra Tractor and Trolley bearing Registration Nos.OD-12-D-7974 and OD-12-D-8833 were seized in connection with 2(b)C.C. Case No.02 of 2023 arising out of Phulbani Forest Range O.R. No.190 of 2022-23 under Section 56 of the Odisha Forest Act, 1972, hereinafter called "the Act".

4. It is contended by the petitioners that simultaneously a Confiscation Proceeding under Section 56 of the Act was initiated by the Authorised Officer -cum- Assistant Conservator of Forests. The said fact even though was taken note of by the learned S.D.J.M., Phulbani while dealing with the application of the opposite party under Section 457 of Cr.P.C, but has chosen to allow the application and directed the vehicle to be released vide order dated 23.06.2023. Therefore, the present petitioners had filed Revision Petition before the Court of learned District & Sessions Judge, Kandhamal. The sole ground on the basis of which order of the learned S.D.J.M., Phulbani was questioned was that the application under Section 457 of Cr.P.C. filed by the opposite party was not maintainable as the vehicles were subject matter of the proceeding under Section 56 of Act. It is also averred by the petitioners that it is only the Authorised Officer, who is empowered under the Act to pass the orders in respect of the vehicle involved in a forest crime.

5. The Revisional Court vide its order dated

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04.12.2023 rejected the revision petition and affirmed the order of the learned S.D.J.M., Phulbani releasing the vehicle.

6. Mr. Maharaj, learned Additional Standing Counsel appearing for the State contended that the order of the learned S.D.J.M., Phulbani releasing the vehicle is directly in contravention to the provisions of the Act and it directly militates against the mandate of the provision of section 56 of the Act.

7. Section 56(2)(a) of the Act provides that when an Authorised Officer seizes any forest produce together with all the tools, chains, boats, vehicles or cattle used in committing such offence, then the Authorised Officer is only empowered to deal with those articles in accordance with the provisions of the Act.

8. Mr. Haharaja submitted that in the instant case, the Confiscation Proceeding was admittedly initiated. Therefore, the application of the opposite party under Section 457 of Cr.P.C. should have been rightly rejected being not maintainable. He relies upon the order dated 31.07.2023 passed by the Coordinate Bench of this Court in CRLCM No.619 of 2023. The Coordinate Bench while dealing with a similar case, has remanded back the matter to the Court below to decide the matter under Section 457 of Cr.P.C. afresh by calling records of confiscation proceeding and by relying upon the judgment of this Court passed in CRLMC 174 of 2022

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(Aswini Kumar Das vrs. State of Odisha) dated 12.08.2022. Mr. Maharaj while strongly relying upon the said judgment, contended that the application under Section 457 of Cr.P.C. moved by the opposite party for release of the vehicle involved in the offences under the Act ought not to have been entertained by the Court below.

The Coordinate Bench in the case of Aswini Kumar Das (supra) dealt with a matter relating to Odisha Excise Act and held that release of the vehicle involved in the Excise Act needs to be dealt with in accordance with Sections 71 & 72 of the Odisha Excise Act.

9. Mr. Tripathy, learned counsel for the opposite party on the contrary relies upon two judgments of this Court and contended that the application under Section 457 of Cr.P.C. for release of vehicle involved in the Act is maintainable even if the confiscation proceeding is pending. He has also relied upon the judgment passed by this Court in CRLREV No.52 of 2022 on 20.05.2022 and emphasized in Paragraphs-15 & 16 of the judgment which read as under:

"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

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in connection with the alleged offence:

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 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

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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."

10. Mr. Tripathy further relied upon the judgment of this Court in the case of State of Odisha & others vrs. Kalandi Behera passed in CRLMC No.2301 of 2023. Paragraphs 6,8 & 9 has been highlighted by Mr. Tripathy which read as under:

"6. I have heard learned counsel for the parties at length and have also gone through the impugned order and the relevant statutory provisions. I have also taken note of the case laws cited at the bar. The question whether the confiscation proceeding initiated by the authorized officer could be treated as a valid

matter to be decided in the appeal pending before the learned District Judge (FAO No. 3 of 2023) and therefore, this Court would not like to make any observations as regards the contentions raised. Learned District Judge despite noting the fact that the confiscation proceeding was pending, directed release of the vehicle by relying upon the ratio of the cases referred to hereinbefore. It would be apposite at this stage to refer to the relevant statutory provision viz., Section 56 of the Odisha Forest Act, which is quoted below.

56. Seizure of property liable to confiscation.

xx xx xx

(3) The property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for

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compounding the offence is paid or until an order of the Magistrate directing its disposal is received.

Provided that the seized property shall not be released during pendency of the confiscation proceeding or trial even on the application of the owner of the property for such release."

Undoubtedly, the proviso places a bar for release of the vehicle during pendency of the confiscation proceeding. The proviso was inserted by way of Odisha Amendment No. 12 of 2023 as published

dated 05.05.2003.

8. There is no gainsaying that the judgment of the Apex Court is the law of the land as per Article 141 of the Constitution of India and binding on all. It is also to be noted that the appellant has specifically contended that he used to run the vehicle for commercial purposes for his own sustenance earning Rs.2,000/- to Rs.3,000/- as income from the vehicle, which has been lost because of the seizure of the vehicle. This obviously affects his right to livelihood, which is guaranteed under Article 21 of the Constitution of India.

9. Taking all these factors into consideration as also the statutory bar referred to hereinbefore, this Court is of the considered view that the release of the vehicle if at all during pendency of the confiscation proceeding or the appeal can only be subject to the final outcome thereof and not absolute. In other words, the order for release of the vehicle shall have to abide by the final order passed in the confiscation Page 8 of 8 proceeding or the appeal. Since there is no guarantee of the proceedings attaining finality within a short period of time, it would enure to the benefit of no one in keeping the vehicle idle and stationary allowing thereby its value to depreciate."

11. Taking into consideration the submissions made at the bar and on perusal of the record, I am of the considered view that the Court of learned S.D.J.M.,

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Phulbani has rightly allowed the application of the petitioner under Section 457 of the Cr.P.C. giving interim zimma to the opposite party, who is the valid owner of the vehicles. Therefore, I find no illegality and infirmity in the order impugned before this Court. However, liberty is given to the petitioner to approach the Court below in case any condition required to be imposed while releasing the vehicles in favour of the opposite party, if not satisfied with the conditions already imposed by the Court below.

12. With this observation, the CRLMC is disposed of.

(S.S. Mishra) Judge

amit

Location: HIGH COURT OF ORISSA, CUTTACK