Orissa High Court
N. Laxman vs State Of Odisha Opp. Party on 1 August, 2025
Author: A.K. Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4930 of 2024
An application under Section 482 of the Cr.P.C. read with Section 528 of
the B.N.S.S., 2023.
N. Laxman Petitioner
Mr.M.K. Mohapatro, Adv.
-versus-
State of Odisha Opp. Party
Ms.B.K. Sahu, A.G.A.
CRLMC No.4931 of 2024
P. Srinivas Rao Petitioner
Mr.M.K. Mohapatro, Adv.
-versus-
State of Odisha Opp. Party
Ms.B.K. Sahu, A.G.A.
CRLMC No.4932 of 2024
B. Ramesh Naik Petitioner
Mr.M.K. Mohapatro, Adv.
-versus-
State of Odisha Opp. Party
Ms.B.K. Sahu, A.G.A.
CRLMC No.4933 of 2024
Gopi Naidu Petitioner
Mr.M.K. Mohapatro, Adv.
-versus-
State of Odisha Opp. Party
Ms.B.K. Sahu, A.G.A.
CORAM:
THE HON'BLE MR. JUSTICE A.K.MOHAPATRA
Page 1 of 15
Date of Hearing : 01.08.2025 | Date of Judgment : 01.08.2025
A.K. Mohapatra, J. :
1. All these applications involving common question of law and
common impugned order are taken up together. For the sake convenience,
the facts pleaded in CRLMC No.4930 of 2024 is being discussed
hereinbelow to adjudicate the common issue involved in all of the above
CRLMC applications.
2. Heard learned counsel for the Petitioner as well as learned counsel
for the State. Perused the applications filed by the Petitioner under
Section 482 of the Cr.P.C. read with Section 528 of the B.N.S.S. as well
as the documents annexed to the applications.
3. By filing the present applications the Petitioner seeks to invoke the
inherent power of this Court to set aside order dated 19.01.2024 passed
by the learned Addl. Sessions Judge, Kantabanji thereby confirming the
order dated 19.10.2023 passed by the learned J.M.F.C., Kantabanji
rejecting the Petitioner's application under Section 457 of Cr.P.C. for
release of the cash seized from the possession of the present Petitioner. It
has also been prayed for a direction to the learned trial court to release the
amount proportionately among the four persons from whose possession
such amount has been recovered.
4. The factual background of the present case as culled out from the
First Information Report, under Annexure-1 to the CRLMC, is that on
15.09.2022, the S.I. of Kantabanji P.S. while performing patrolling duty,
received credible information to the effect that gambling activities were
going-on in the locality, particularly, in a hotel in the name and style of
Annapurna Lodge. Since the time was an odd hour, it was not possible on
the part of the S.I. to obtain arrest warrant from his authority to enter
inside the hotel where gambling activities were going on. Since, there
was a possibility of the accused persons escaping from the crime scene,
the S.I. of police, without wasting any time arranging local witnesses,
entered into the hotel premises. Upon entering into the hotel, the
informant-S.I. found that gambling activities were going on and the
accused persons were playing cards wherein a huge sum of money was
involved in betting. Accordingly, the informant informed the I.I.C. of the
Kantabanji P.S. over phone, who in turn permitted the informant to carry
on the operation. Accordingly, seven persons, who were involved in the
alleged crime of gambling activity, were apprehended from the spot. The
present Petitioner is one of such persons who was arrested from the spot.
Accordingly, an F.I.R. was registered and as per the seizure list a total
amount of Rs.58,52,250/- (Rupees Fifty-Eight Lakh Fifty-Two Thousand
Two Hundred Fifty) was seized from the spot of occurrence with 4
packets of playing cards. On personal search of the accused persons,
some money and mobile phones was also recovered. It has also been
alleged that since the accused persons could not account for the money
that was lying at the spot of occurrence, the same was seized in presence
of the witnesses. Accordingly, the Petitioner and others were charged
with the commission of offence punishable under Section 3 of the Orissa
Prevention of Gambling (OPG) Act, 1955 (hereinafter "OPG Act").
5. After the F.I.R. was registered, investigation was commenced.
Further, a G.R. case bearing G.R. Case No.376 of 2022 was registered
arising out of Kantabanji P.S. Case No.215 of 2022. In the abovenoted
G.R. case, the Petitioner along with three others filed separate
applications under Section 457 of the Cr.P.C. So far as the Petitioner is
concerned, CMC No.35 of 2023 was filed by the Petitioner before the
learned JMFC, Kantabanji. In the aforesaid application, the Petitioner has
stated that he is owner of 'SSB Bricks' having brick kiln in Telengana
and a valid labour license. It has also been stated that the Petitioner had
been to the Kantabanji area in search of labourers to hire for his brick
kiln. The money, that was seized, was kept by the Petitioner for the
purpose of distribution of wages to the labourers he had contracted.
Claiming ownership of a part of the money that has been seized, the
Petitioner prayed before the learned trial court to release a total amount of
Rs.15,00,000/- in his favour which has been seized by the I.O. during the
aforesaid raid at the Arnapurna Lodge.
6. The abovenoted application filed by the Petitioner was heard and
disposed of initially by the learned JMFC, Kantabanji vide his order dated
19.10.2023 and the prayer of the Petitioner was partly allowed and the
learned trial court released the seized mobile phone. However, the prayer
for release of the cash that was seized was rejected in a mechanically
manner without assigning any justifiable reason.
7. Being aggrieved by the aforesaid order of rejection dated
19.10.2023, the Petitioner preferred a Revision before the learned Addl.
Sessions Judge, Kantabanji, which was registered as Criminal Revision
No.05 of 2023. The learned Revisional Court after hearing the counsels
from both sides disposed of the revision petition vide order dated
19.01.2024 under Annexure-4 to the present application. Being aggrieved
by such rejection of the prayer of the Petitioner for release of the seized
cash in his favour, the Petitioner has approached this Court by filing the
present application under Section 482 of the Cr.P.C.
8. Learned counsel for the Petitioner at the outset contended that
although the occurrence allegedly took place on 15.09.2022 and the F.I.R.
was registered on 16.09.2022, however, the investigation is still going-on
and the final charge sheet has not yet been filed. He further contended
that the learned court below has committed a serious illegally in allowing
the application partly thereby releasing the mobile phones of the accused
persons whereas the cash seized was not released in favour of the
Petitioner on a technical ground that the claim of the Petitioner is more
than the amount that has shown to have been seized in the seizure list. He
further submitted that regarding the money that was seized during the
aforesaid transaction, there is no doubt that the same belongs to the
Petitioner and other three persons who had approached the learned trial
court by filing application under Section 457 of the Cr.P.C. With regard
to discrepancy between the amount claim by the Petitioner and the
amount that has been shown to have been seized in the seizure list, the
learned counsel for the Petitioner contended that the actual amount of
cash that was seized has not been reflected in the seizure list. He further
contended that on the basis of the allegation made by the accused
persons, some departmental actions have been taken against the officer
who was initially the I.O. in this case.
9. In course of his argument, learned counsel for the petitioner
referred to the order passed by the learned JMFC, Kantabanji on
19.10.2023 at Annexure-3 to the application and contended that the
application of the Petitioner has been rejected in a mechanical manner
and without providing any justifiable reason thereof. He further
contended that since the money has been recovered from the accused
persons including the present Petitioner, there is no dispute that the
money belongs to the present Petitioner and three others and that they
have also established the fact that the money belongs to them and that
they were carrying the amount for payment of wages to the workers
whom they had hired for the purpose of their brick kiln. He further
contended that the learned JMFC, Kantabanji has committed an illegality
by arriving at a conclusion that since no individual seizure has been made
from the accused persons, no order can be passed to release the cash
amount in favour of any of the accused persons as it is difficult to
determine how much money was recovered from which of the accused
persons. It was also contended that although an objection was made on
behalf of the Petitioner, however, the same was termed as vague and
baseless. Therefore, it was contended that the learned trial court has
committed an illegality in rejecting such application by the Petitioner.
10. So far as the Revisional Court is concerned, it is stated by learned
counsel for the Petitioner that the learned Revisional Court has
erroneously rejected the application of the Petitioner vide order dated
19.01.2024 at Annexure-4 to the application. Referring to the Revisional
Court's order, learned counsel for the Petitioner further submitted that the
learned Revisional Court has not taken note of the judgments relied upon
by the Petitioner at the time of hearing of the revision petition. In course
of his argument, learned counsel for the Petitioner referred to the
judgment of the Gujarat High Court, in the case of Dipak Kumar
Trilokchand Agrawal Vrs. State of Gujarat decided in Criminal
Application No.3456 of 2020 vide judgment dated 19th August, 2020. In
the said judgment, where in a case of gambling, during the stage of
investigation, some cash was seized from the pocket of the Petitioner, the
Hon'ble Gujarat High Court was pleased to observe that no useful
purpose would be served in retaining the cash seized from the Petitioner.
Accordingly, order was passed for interim custody of such cash in favour
of the accused-petitioner.
11. Referring to the order of this Court in Satrughna @ Satrughan
Prasad Gupta Vs. State of Odisha in CRLMC No.1531 of 2021 passed
on 26.10.2022. A Bench of this Court took a view that when there is no
possibility of the early disposal of the case, there is no point in not
releasing the cash seized in favour of the Petitioner, indefinitely.
Accordingly, a Coordinate Bench of this Court, taking note of the fact
that the investigation has been concluded and charge sheet has been filed
and the fact that the cash is lying idle, directed for the release of the
amount in favour of the Petitioner, as an interim measure, subject to the
Petitioner furnishing security and other conditions to be fixed by the
learned court below.
12. Learned counsel for the Petitioner also referred to the case in
Muktaben M. Mashru Vs. State of NCT of Delhi in Criminal Misc.
Case No.4206 of 2018 and Criminal Misc. Application No.30311 of
2018 decided by the Hon'ble Delhi High Court as well as the judgment of
the Hon'ble Madras High Court in the case of Smt. T. Subbulakshmi and
T. Yamini Vrs. The Commissioner of Police, Criminal O.P. No.13104
and 10105 of 2013. Referring to aforesaid judgment, learned counsel for
the Petitioner contended that the requirement of Section 102 of the
Cr.P.C. is to be mandatorily complied with and non-compliance of such
provision renders the entire activity illegal and perverse. He further
contended that there is no bar in law in releasing the seized cash in favour
of the Petitioner in view of the fact that the same belongs to the Petitioner
and the other accused persons who had approached the learned trial court
by filing an application under Section 457 of the Cr.P.C. for release of
such amount in their favour.
13. Although the prayer of the Petitioner before the Revisional Court
was objected to by the learned Additional Public Prosecution. However,
the contentions raised by the Petitioner before the Revisional Court have
not been considered in its proper prospective and the same have not been
examined in light of the provisions contained in the Code of Criminal
Procedure. He further contended that when the amount has not been
seized individually from the Petitioners, or at least the same has not been
reflected as such in the seizure list, such conduct of the raiding party does
not disentitle to the Petitioner and three others from their claim of
ownership over the property which has been seized during such raid.
Learned Revisional Court has taken note of the fact that the I.O. had
submitted an intimation to the learned trial court with regard to the fact
that the investigation is still open and the cash amount is required for the
purpose of on-going investigation. It further appears that the I.O. has
remained present in the learned trial court to register the case under
Section 420 and 120-B of the IPC read with Section 25 of I.S.M.W. Act
along with section 3 of O.P.G. Act. Additionally, while rejecting the
prayer of the Petitioner the learned trial court has taken a ground that the
seized cash amount is lesser than the cash claimed by the accused persons
including the present Petitioner in toto. In the aforesaid background,
learned trial court rejected the application of the Petitioner for release of
the seized cash in favour of the accused-petitioner.
14. Learned counsel for the State on the other hand contended that both
the courts below have not committed any illegality in passing the order
dated 19.10.2023 at Annexure-3 and the order dated 19.01.2024 at
Annexure-4. Learned counsel for the State further contended that the cash
which was seized during the raid, while criminal activities in the shape of
gambling was going on, could not have been released in favour of the
Petitioner including three others. She further submitted that the
investigation is still on and as is evident from the order passed by the
learned Revisional Court. Moreover, learned counsel for the State pointed
out that there exists a discrepancy with regard to the actual claim of the
accused persons including the Petitioner and the total amount that has
been indicated in the seizure list. In such eventuality, it would be
impossible to distribute the amount in the event the same is to be
returned. It was also contended that the accused persons, who were
arrested from the spot, have failed to account for the amount seized from
the spot. She further submitted that in the meantime the case has been
turned into one under Sections 420 and 120-B of the IPC read with
Section 25 of I.S.M.W. Act along with section 3 of O.P.G. Act. Thus,
learned counsel for the State contended that the learned trial court has not
committed an illegality in rejecting the application filed by the Petitioner
along with three other accused persons for interim release of the cash
seized during the raid. On such ground, it was submitted that the present
application being devoid of merit, is liable to be dismissed.
15. Having regard to the submissions made by learned counsels
appearing for the parties, on a careful examination of the allegations
made by the prosecution in the F.I.R., this Court observes that it is not
disputed that during raid some cash was seized by the raiding party. It is
also not disputed that the Petitioner along with other accused persons,
who were present at the time of raid, were arrested from the spot. Thus, it
cannot be denied that the money was not raided from the custody of the
accused persons. It is true that the investigation has not been concluded
and the same is still open. However, on a critical analysis of the conduct
of the Investigating Officer, this Court finds that although the case was
registered on 16.09.2022, despite expiry of several years, the
investigation has not been concluded as of now. The aforesaid conduct of
the I.O. reveals the manner in which the investigation is being carried out
in the present case. Moreover, it is not disputed that the accused persons
were traders who were arrested from the spot while they were involved in
the gambling activities, accepting the allegation made in the F.I.R. to be
true.
16. So far as the legal position is concerned, the same is very clear in
view of the judgments referred to hereinabove that the property which has
been seized has to be released in favour of the ostensible owners in view
of the provisions contained in Section 457 of the Cr.P.C. In the aforesaid
context, reference can be made to the judgment of the Division Bench of
this Court in Ashish Ranjan Mohanty v. State of Odisha reported in
2022 SCC OnLine Ori 520 and in the same judgment of the Hon'ble
Division Bench, this Court has laid down a guideline for interim release
of the article seized during investigation. No doubt there is some
discrepancy with regard to the amount claimed by the present Petitioner
along with other accused persons and the amount that has been seized as
shown in the seizure list. Then also there is nothing on record which
would reveal that the money does not belong to the present Petitioner
along with other accused persons. If the Petitioner along with other
accused persons are lawful owners of the seized money then as per law
the same is to be interimly released in favour of the Petitioner till
conclusion of the trial, in consonance of the provisions contained in
Section 457 of the Cr.P.C. Moreover, this Court, while considering the
present matter, is also conscious of the fact that the seized article being
cash there is always a risk of safe-keeping of the same either in police
custody or in the judicial custody. Thus, it would always be desirable to
release the said amount in favour of the ostensible owner thereof
interimly, by securing such amount unless the same is not required in
course of the investigation.
17. In view of the aforesaid analysis this Court is of the considered
view that the learned JMFC, Kantabanji as well as the learned Revisional
Court have not appreciated the facts of the case in its proper prospective
and have failed miserably to apply the provisions of law while
considering the application under Section 457 of the Cr.P.C. In view of
the aforesaid analysis, this Court is of the view that the impugned orders
passed by both the courts below are unsustainable in law. Accordingly,
the same are hereby quashed. Further, the matter is remanded back to the
learned J.M.F.C., Kantabanji to reconsider the application of the
Petitioner filed under Section 457 of the Cr.P.C. along with other similar
applications pending before him. It is further observed that in the event
the Petitioners succeed in establishing the title over the seized money
then the same be released in their favour interimly by securing the same
in accordance with law. With regard to the discrepancy in the claimed
amount as well as the amount that has been shown to have been seized in
the seizure list, it is entirely up to the learned trial court to take a decision
in the matter and in the event, the learned trial court decides to release the
money, the same shall be released proportionately in favour of the
accused-claimant. Accordingly, all the applications be taken up together
and be disposed of within a period of four weeks from the date of
communication of a copy of today's judgment.
18. With the aforesaid directions/ observations, all CRLMC
applications stand disposed of.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 01st August, 2025 / Anil/ Jr. Steno
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 04-Aug-2025 16:56:04
