Orissa High Court
Gayadhar Jena vs The Deputy Superintendent Of Police on 10 March, 2023
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.99 of 2023
(From the order dated 2nd February, 2023 of learned PO, Designated
Court under OPID Act, Cuttack passed in C.T. Case No.10 of 2015.)
Gayadhar Jena .... Appellant
-versus-
The Deputy Superintendent of Police, .... Respondents
Economic Offences Wing, Khurda and
Others
Advocate(s) appeared in this case:-
For Appellant : Mr. S.J. Biswal, Advocate
For Respondents : Mr. B. Bhuyan, Special Counsel
(OPID)
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
10th March, 2023 B.P. Routray, J.
1. The matter is taken up through hybrid mode.
2. Heard Mr. S.J. Biswal, learned counsel for the Appellant and Mr. B. Bhuyan, learned Special Counsel for State (OPID).
3. Order dated 2nd February, 2023 of the Designated Court (OPID), Cuttack is impugned in the present appeal. The background facts leading to filing of the appeal are to the effect that, the Appellant is an accused in EOW P.S. Case No.9 dated 15th March, 2015 for alleged commission of offences under Sections 467/468/471/406/420 I.P.C. and Section 6 of the FAO No.99 of 2023 Page 1 of 6 OPID Act. Along with Appellant, his wife namely Pankajini Jena, M/s.Sarala Ralcon Pvt. Ltd. and other accused persons are also implicated. An ad interim order of attachment under Section 3 of the OPID Act was issued for attaching their landed properties to the extent of Ac.95.074 dec. and in the meantime, same has been made absolute by the Designated Court.
4. On 25th May, 2015 an instruction was issued by the Superintendent of Police, EOW, CID, Crime Branch to the District Sub-Registrar, Khurda requesting him not to effect any sale / purchase / transfer of the landed properties in the names of the Appellant, his wife and M/s. Sarala Realcon Pvt. Ltd. This was challenged before the Designated Court by the Appellant. The Designated Court in the impugned order dated 2nd February, 2023 rejected the prayer of the Appellant and refused to grant him any relief in respect of said instruction of the Superintendent of Police, EOW. These are all undisputed facts.
5. At the outset, it needs to be mentioned here that specific prayer of the Appellant before the Designated Court was in respect of the properties situated in Plot No.112 measuring area of Ac.0.450 dec and Plot No.111 measuring area Ac.0.30 dec. under Khata No.180/172 of Mouza Tiranapada, P.S./Tahasil- Balianta, District - Khurda. Mr. FAO No.99 of 2023 Page 2 of 6 Biswal, learned counsel for the Appellant also confines his prayer in respect of said properties only before this court.
6. Mr. B. Bhuyan, learned Special Counsel fairly admits that the properties in plot No.112 and 111 under Khata No.180/172, as stated above, is not included in the schedule of properties extending Ac.95.074dec, in respect of which ad interim attachment order was passed and made absolute subsequently by the Designated Court. It is further admitted by Mr. Biswal as well as by Mr. Bhuyan that no such order of ad interim attachment in terms of Section 3 of the OPID Act has been passed till date in respect of the properties pertaining to Plot No.111 and 112 under Khata No.180/172 of Mouza Tiranapada.
7. This court in the case of M/s. Hi-Tech Estates & Promoters (P) Ltd., 2017(I) ILR - CUT -83, while deciding on a similar issue regarding instructions issued by the investigating officer in a matter concerning commission of offences under the OPID Act prohibiting sale/purchase etc, have observed that the executive cannot deprive a person of his property without specific legal authority. The relevant observation of this court is reproduced below:-
"9. Article 300-A of the Constitution of India provides that no personal shall be deprived of his property save by FAO No.99 of 2023 Page 3 of 6 authority of law. Deprivation of property comes in various ways, such as destruction or confiscation or revocation of a proprietary right granted by the proprietor, seizure of goods and immovable property from the possession of individual or assumption of control of a business, in exercise of the police power of a State. Under the Constitution, the Executive cannot deprive a person of his property (any kind) without specific legal authority which can be established in a court of law, however, laudable the motive behind may be such deprivation. The expression of authority of law means by or under any law made by the competent legislature. Admittedly, in the present case, no seizure has been effected under Section 102 of the Cr.P.C. The Superintendent of Police, E.O.W., CBI, Crime Branch has issued a notice to the Sub-Registrar, Jatni for prohibiting him from registering any sale executed by the petitioners or its Directors. Writing of such a letter is not by authority of law. It was open for the Investigating Agency, prosecuting or the executing agency to proceed under the provisions of Criminal law Amendment Ordinance, 1944 or the provisions of the Odisha Protection of Interest of Depositors (In Finance Establishments) Act, 2011.
So, instead of taking appropriate action against the petitioners, as the authority of law, they have simply issued a letter to the registering authority, which according to this court, is not sustainable."FAO No.99 of 2023 Page 4 of 6
8. In the case at hand admittedly, the properties in question, i.e. Plot No.111 and 112, as confined by Mr. Biswal in his prayer, have neither been covered by any order of attachment passed under Section 3 of the OPID Act nor has any step for attaching those properties otherwise in course of investigation been taken. It is seen that learned trial court relying on a communication sent by the investigating officer dated 30th January, 2023 has come to hold that a proceeding as per Section 3 of the OPID Act has already been initiated in respect of the properties in question and therefore the Designated Court lacks jurisdiction to entertain the prayer of the Appellant to release the property. Here it needs to be emphasized that learned Designated Court has failed in his approach by completely relying on the intimation of the I.O. The copy of such intimation dated 30th January, 2023 (under Annexure-6) reveals that neither any proceeding number nor any order of ad interim attachment in respect of the properties in question has been produced. Moreover, EOW P.S. Case No.9/2015 is dated 15th March, 2015 and the instruction banning transactions of sale / purchase/ transfer under Annexure-2 is dated 22nd May, 2015. The ad interim order of attachment in respect of those other properties measuring Ac.95.074dec is dated 19th October, 2016. Therefore, such communication sent by the I.O. 30th January, 2023 FAO No.99 of 2023 Page 5 of 6 to the Public Prosecutor is not found enough to satisfy regarding initiation of any proceeding under Section 3 of the OPID Act. Nonetheless, Mr. Bhuyan, learned counsel for EOW fairly concedes that no order of ad interim attachment has been passed as on date in respect of the properties in question.
9. Thus, in view of the facts stated and discussions made above, this court is of the opinion that the instruction of the Superintendent of Police, EOW under Annexure-2 cannot be made operative in respect of present properties, i.e. Plot No.112 measuring area of Ac.0.450dec and Plot No.111 measuring area Ac.0.30dec under Khata No.180/172 of Mouza Tiranapada, P.S./Tahasil- Balianta, District - Khurda.
10. With the aforesaid observations, the appeal is disposed of.
11. An urgent certified copy of this order be issued as per rules.
(B.P. Routray) Judge M.K. Panda, Sr. Steno FAO No.99 of 2023 Page 6 of 6