Orissa High Court
Kishore Kumar Choudhury vs State Of Orissa on 20 March, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV NO.71 of 2017
From the judgment and order dated 13.01.2017 passed by the
learned Sessions Judge, Phulbani in Criminal Miscellaneous Case
No.9 of 2016 arising out of G.R. Case No.79 of 2016 of the
learned Special Judge, Phulbani corresponding to Phiringia P.S.
Case No.84 of 2016.
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Kishore Kumar
Choudhury ......... Petitioner
-Versus-
State of Orissa ......... Opp. party
For Petitioner: - Mr. Amulya Ratna Panda
For Opp. Party: - Mr. Deepak Kumar
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order: 20.03.2017
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S. K. Sahoo, J.The petitioner Kishore Kumar Choudhury has filed this revision petition challenging the impugned order dated 13.01.2017 passed by the learned Sessions Judge, Phulbani in Criminal Miscellaneous Case No.9 of 2016 which arises out of G.R. Case No.79 of 2016 of the learned Special Judge, Phulbani 2 corresponding to Phiringia P.S. Case No.84 dated 30.06.2016 in rejecting the petition under section 457 of Cr.P.C. filed by the petitioner for release of his white colour Toyota ETIOS bearing Registration No.OD-02V-0053.
Mr. Amulya Ratna Panda, learned counsel for the petitioner submitted that the case was instituted on 30.06.2016 on the basis of the first information report lodged by one Dhiren Kumar Behera, officer in charge, Phiringia Police Station against six accused persons namely Sagar Swain, Haribandhu Kanhar, Pratap Kumar Swain, Jagadish Sahani, Santosh Kumar Jena and Subash Chandra Chandan which was registered under sections 20(b)(ii)(C) and 29 of the N.D.P.S. Act and in connection with such offence, the vehicle of the petitioner was seized on 30.06.2016.
The petition under section 457 of Cr.P.C. filed by the petitioner was rejected by the learned Sessions Judge, Phulbani on the ground that though there was no quarrel that the petitioner is the registered owner of the vehicle but section 60(3) of the N.D.P.S. Act provides that a conveyance used in carrying any narcotic drug is liable for confiscation, unless the owner proves that it was used without his knowledge or connivance or of his agent or the person in charge of the conveyance and that 3 each of them had taken reasonable precaution against such use. It was further held that whether or not the petitioner had knowledge of the conveyance for being used for transporting the narcotic drug and whether he had taken precaution against such use is a matter to be decided during the trial of the case and since the vehicle was found carrying contraband ganja and the petitioner had not furnished any material to indicate that the vehicle was being used as a taxi for hire and that accused Jagadish Sahani was engaged as a driver for the petitioner, therefore, the Court held there was no prima facie material on record to show that the petitioner had no knowledge of the conveyance being used for transportation of the narcotic drugs and accordingly, the petition under section 457 of Cr.P.C. was rejected.
Learned counsel for the petitioner contended that after the seizure of the vehicle since 30.06.2016, the vehicle is lying in an unattended condition in the Phiringia Police Station premises in open air being exposed to sun and rain and the condition of the vehicle is likely to be deteriorated and since there is no bar under the N.D.P.S. Act for interim release of the vehicle and confiscation, if any, in terms of section 60(3) of the N.D.P.S. Act may be done only after the conclusion of trial, 4 therefore, unless the seized vehicle is released in favour of the petitioner, he will be seriously prejudiced particularly when the petitioner is not an accused in the case. In support of such contentions the learned counsel for the petitioner placed reliance in the cases of Basanta Kumar Behera -Vrs.- State of Orissa reported in (2013) 54 Orissa Criminal Reports 876, Balabhadra Nayak -Vrs.- State of Orissa reported in (2013) 54 Orissa Criminal Reports 893 and Subash Chandra Panda
-Vrs.- State of Orissa reported in (2009) 44 Orissa Criminal Reports 859.
In the case of Subash Chandra Panda (supra), this Court after analyzing the relevant provision under section 60 of the N.D.P.S. Act and provisions under sections 451 and 457 of the Cr.P.C. has been pleased to hold as follows:-
"4. Taking into consideration the stage of confiscation of a vehicle or conveyance and protection of an innocent owner in the provision of the Act itself, as discussed supra, the obvious question that arises for consideration is as to whether an innocent owner of a vehicle or conveyance shall be made to suffer till an order for confiscation is passed or such an innocent owner is to be protected by taking resort to Section 451 or Section 457 of the Code.5
5. Chapter-V of the Act provides for procedures relating to power to issue warrant and authorization, power of entry, search, seizure and arrest without warrant or authorization, power of seizure and arrest in public place and so on. Section 52 under Chapter-V of the Act provides for disposal of persons arrested and articles seized. Section 55 of the Act clearly mandates the police to take charge of articles seized and delivered. Section 51 of Act makes provisions for applicability of the provisions of the Code of Criminal Procedure in the manner provided in the Section which reads thus:-
"51 Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures- The provisions of the Code of Criminal Procedure, 1973, shall apply, in so are as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."
A cursory reading of the aforesaid provision in Section 51 of the Act makes it clear that the provisions of the Cr.P.C. will not apply if they are inconsistent with the provision of the Act in respect of warrants issued, arrests, searches and seizures made under the Act. There is provision in Section 55 of the Act interdicting 6 an Officer-in-charge of a Police Station to take charge of and keep in Safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of the Police Station and which may be delivered to him. There is no express provision in the act for release of the property like vehicle or conveyance in interim custody of a rightful owner. Provision contained in Section 51 of the Act does not expressly bar operation of the provision of the Cr.P.C. if they are not inconsistent with the provision of the Act. Taking into consideration the stage of the confiscation proceeding in the scheme of the trial as provided under Section 60(3) of the Act, safe custody of the articles seized and delivered to a police officer under Section 55 of the Act pending order of the Magistrate, absence of any specific provision in the Act for release of valuable articles like vehicle etc. in the interim custody of the registered owner and especially in view of the mandate for confiscation of a vehicle or conveyance after the trial is concluded and further fact that the commercial price of such an article is to be protected in the interest of justice, I have no hesitation to hold that operation of Sections 451 and 457 Cr.P.C. is not specifically excluded by Section 51 of the Act. In my view, I am supported by the decisions rendered in 7 the case of B.S. Rawant v. Shaikh Abdul Karim, 1989 Criminal Law Journal 1998;
Madanlal v. State NCT of Delhi, 2002 Criminal Law Journal 2605; and Sujeet Kumar Biswas v. State of U.P. 2001 Criminal Law Journal 4431.
Section 60(3) of the Act by making provision for-protecting the interest of an innocent owner before confiscating his vehicle also lends support to my aforesaid view that an innocent owner till an order of confiscation is passed is entitled to interim custody of the vehicle pending trial of the case.
6. Such being the position of law, the safe custody of the property in question can be given in interim zima of the rightful owner if motion to that effect is made before the competent court either under Section 451 Cr.P.C. or Section 457 Cr.P.C., as the case may be."
In the case of Basanta Kumar Behera (supra), after analyzing section 63 of the N.D.P.S. Act, it has been held as follows:-
"From the above provision, it is clear that a vehicle used in the commission of the offence is liable for confiscation, which means that on proof of commission of offence and that the vehicle was used in such commission, at the 8 conclusion of trial, the vehicle in question shall be confiscated. The confiscation of a vehicle ensures to the benefit of the State. If not confiscated, the property in question has to be returned or released in favour of the rightful owner entitled for possession or to the person from whom it was seized. In case the property is not released and the trial continues for long time, its value gets diminished due to damage caused by exposure to sun and rain and in that even whether it is confiscated or not confiscated, no body gains anything and, on the contrary, in the event of confiscation, the State would stand to lose and in the event of no confiscation, the owner will be the loser. This is the reason for which in the case of Sunderbhai Ambala Desai -Vrs.- State of Gujurat, (2003) 24 OCR (SC) 444, the Hon'ble Supreme Court has stipulated guidelines for prompt interim release of the vehicle seized in connection with the commission of an offence.
No provision in the N.D.P.S. Act has been brought to the notice of the Court which bars interim release of the vehicle where the owner has been implicated in the offence as one of the accused."
In the case of Balabhadra Nayak (supra), it is held as follows:-
9
"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 in 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 N.D.P.S. 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 aget in charge of the vehicle.
In the light of the discussions made above, I allow the revision and set aside the impugned order and direct the learned Sessions Judge -cum- Special Jduge, Ganjam, Berhampur to release the vehicle in question in 10 favour of the petitioner after being satisfied about the petitioner's ownership over the vehicle in question."
Mr. Deepak Kumar, learned Addl. Standing Counsel for the State opposed the prayer for release of the vehicle on the ground that it is involved in the commission of an offence under the N.D.P.S. Act but does not dispute the legal position as specified by this Court that in absence of any bar for interim release of the vehicle under N.D.P.S. Act, the Court can exercise its power under section 457 of Cr.P.C. for interim release of the vehicle in favour of the rightful owner.
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 11 applicable at the stage of consideration of interim release of the vehicle under section 457 of Cr.P.C.
Accordingly, the impugned order passed by the learned Sessions Judge, Phulbani in Criminal Miscellaneous Case No.9 of 2016 which arises out of G.R. Case No.79 of 2016 of the learned Special Judge, Phulbani corresponding to Phiringia P.S. Case No.84 dated 30.06.2016 is not sustainable in the eye of law and the same is hereby set aside.
It is directed that the vehicle i.e. white colour Toyota ETIOS bearing Registration No.OD-02V-0053 shall be released in favour of the petitioner immediately subject to the following conditions:-
(i) the petitioner shall produce the original registration certificate, insurance paper before the concerned police station which shall be verified properly and true attested copies thereof shall be retained by the investigating officer/I.I.C. of the police station;
(ii) the petitioner shall furnish property security worth of Rs.1,00,000/- (rupees one lakh) for each vehicle;12
(iii) the petitioner shall keep the vehicle insured at all times till the conclusion of the trial and produce the insurance certificate before the Trial Court as and when required;
(iv) the petitioner shall not change the colour or any part of the engine and chasis number of the vehicle;
(v) the petitioner shall furnish two photographs of the vehicle before taking delivery of the same;
(vi) the petitioner shall not transfer the ownership of the vehicle in favour of any other person;
(vii) the petitioner shall produce the vehicles before the Court as and when called upon;
(viii) the petitioner shall not allow the vehicle to be used in the commission of any offence.
Accordingly, the Criminal Revision petition is disposed of.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 20th March, 2017/Sukanta