Orissa High Court
Sumi Sam L vs State Of Odisha .... Opp. Party(S) on 15 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.7 of 2025
Sumi Sam L .... Petitioner(s)
Mr. M. Padhy, Advocate
-versus-
State of Odisha .... Opp. Party(s)
Mr. S. J. Mohanty, ASC
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 15.01.2025
01. 1. Heard.
2. The petitioner is aggrieved by the order dated 29.07.2024
passed by the learned S.D.J.M., Koraput in M.C. Case No.66 of
2024, whereby his application under Section 457 Cr.P.C. for release
of Hyundai Verna bearing Registration No.KL-07-BJ-8283 vide
engine No.D4FA8U640080 and Chassis
No.MALCM41VR8M059257 has been turned down.
3. The petitioner is one of the accused in Padwa P.S. Case
No.38 of 2022 for the alleged commission of offences punishable
under Section 20(b)(ii)B of the NDPS Act. He is the owner of the
vehicle. The application of the petitioner under Section 457 Cr.P.C.
for released of the vehicle, which was employed for the commission
of the offence under the NDPS Act as mentioned above has been
turned down. The learned trial Court has given the following
reasoning while rejecting the application:-
<that means only the Investigating Agency or The 10 of
the case can file application for release of the seized
conveyances. On further perusal of all those decisions of
the Hon'ble Court it is seen that, no where the Hon'ble
Court has mentioned that this court has power to deal
with the applications to release the seized vehicles under
NDPS Act as per the provision of Section 457 of Cr.P.C.
Hence, this court lacks jurisdiction to deal with the
release of the present vehicle seized under NDPS Act
under the provision of Section.457 Cr.P.C. Moreover,
had it been an application/petition U/s.52-A of the NDPS
Act this Court is also unable to release the alleged
vehicle as per the instruction issued under Para-5 and 6
of the CRLREV No.404 of 2020, No. 185 of 2021 and No.
177 of 2021 of the Hon'ble High Court of Orissa as this
application/petition has not been made either by the
Investigating Agency or by the Prosecuting Agency. More
particularly the SOP/guidelines issued in the division
Bench judgment in State of Orissa Vrs. Registrar
General, Orissa High Court vide Para No.25 have been
vividly interpreted and discussed by the Hon'ble Justice
S.Pujari wherein he has given the finding that proceeding
must be initiated through the Investigating
Agency/Prosecution as the right to make application by
the petitioner does not anymore survives since the same is
subject to pre-trial disposal as per Section 52-A of the
NDPS Act. But in this case the owner/petitioner has filed
this application/petition through his counsel. Therefore,
giving utmost regard to the decisions of the Hon'ble
Court I am not inclined to allow the petition. Hence, this
petition is rejected."
4. The sole ground of rejection of the application is that since
the application was not initiated/moved by the prosecution or the
Investigating Agency, the same cannot find favour from the Court.
The learned trial Court has relied upon the judgment of this Court
passed in CRLREV No.404 of 2020 and W.P.(C) No.32580 of 2021
while rejecting the prayer of the petitioner.
5. Mr. Padhy, learned counsel for the petitioner has relied
upon the judgment of this Court dated 04.02.2023 passed in
CRLREV No. 32 of 2020 ,Nakka Sankar Rao v. State of Odisha
relevant part reads as under:-
<6.Accordingly, giving liberty to the
Prosecution/Investigating Agency to seek disposal of
the conveyance in question under Section 52-A of
the NDPS Act before the Magistrate concerned and
in that event, the Magistrate concerned shall deal
with the same in accordance with law, more
particularly in the light of the directions given in the
abovementioned Division Bench judgment of this
Court, this CRLREV stands disposed of.
7. However, so far as seizure of other articles, if any,
is concerned, the petitioner is also at liberty to
approach the Court where the case is pending for
release of the same and in that event, the same shall
be decided on its own merit, within a period of
fifteen days from the date of receipt of a copy of this
order, notwithstanding the earlier rejection by the
Court concerned.=
6. The Hon'ble Supreme Court in a recent judgment has also
authoritatively held that the NDPS Act does not create a Bar for
interim release of the vehicle under Section 451 or 457 of Cr.P.C
seized in a case of NDPS offence. This Court also in an order dated
16.02.2024 passed in CRLMC No. 1463 of 2023 in the case of
Rajesh Adakatia v. State of Odisha has expressed the similar view.
7. Perusal of the aforementioned judgments would make it
clear that NDPS Act provides for disposal of the conveyance
allegedly employed in the commission of crime. However, there is
no statutory bar in releasing of the vehicle on Zimanama with any
condition that may be deemed fit and proper to be imposed by the
Court. Therefore, the court below has not appropriately applied the
ratio of the judgments to the present case and rejected the
application.
8. In that view of the matter, the impugned order dated
29.07.2024 passed by the learned S.D.J.M., Koraput in M.C. Case
No.66 of 2024 is set aside. The petitioner is allowed to move an
application before the Court below in that regard afresh for interim
release of the vehicle. If such application is moved, the same shall
be considered by the Court below on the basis of the judgments of
this Court as referred to above as well as the recent judgment of the
Hon'ble Supreme Court in that regard.
9. With this observation, the CRLMC is disposed of.
Reason: Authentication (S.S. Mishra)
Location: High Court of Orissa Judge
Date: 17-Jan-2025
Swarna 16:30:52
