Orissa High Court
Suresh Kumar Sahoo vs State Of Odisha ... Opposite Party on 28 February, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
CRLREV No.106 of 2021
(From the order dated 20.08.2020 passed by learned 1st Additional
Sessions Judge, Cuttack in Criminal Misc. Case No.20 of 2020)
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Suresh Kumar Sahoo ... Petitioner
- Versus -
State of Odisha ... Opposite Party
For Petitioner ... Ms. Deepali Mahapatra,
Advocate
For Opposite Party ... Mr. M.R. Mishra,
Additional Standing Counsel
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PRESENT:
THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 23.06.2022 Date of judgment : 28.02.2023 A.K. Mohapatra, J. This Criminal Revision has been filed by the Petitioner under Section 401 read with Section 397 of the Code of Criminal Procedure challenging the order dated 20.08.2020 passed by the 1st Additional Sessions Judge, Cuttack in Criminal Misc. Case No.20 of 2020 thereby // 2 // rejecting the application filed by the Petitioner under Section 457 of Cr.P.C. for release of the seized article in connection with Spl. G.R. Case No.30 of 2020, arising out of Tangi P.S. Case No.75 of 2020.
2. The factual matrix of the case, in brief, is that the A.S.I. of Police, DRIEMS Out Post as an Informant, lodged an F.I.R. on 14.05.2020, inter alia, alleging that he along with other police officers were performing patrol duty within the territorial jurisdiction of the Police Station. At about 8.30 P.M. the Informant got information regarding illegal transportation of electric aluminum cut piece cables loaded in a Pick-up Van bearing Registration No.OR-07-N-0225 which was coming from Bhatimunda side towards Tangi. Upon getting such information, the Informant along with other police staff proceeded towards the spot and detained the Pick- up Van near DRIEMS Chhak. On being asked. The driver of the vehicle was unable to produce any valid document in respect of the goods loaded in the Pick-Up Van. The Pick-up // 3 // Van was loaded with electric aluminum cut piece cables. Accordingly, the driver of the vehicle was arrested and the vehicle was seized.
3. The Petitioner is the owner of the vehicle as well as the goods loaded in the said vehicle. It has also been pleaded that the Petitioner was doing business in scrap materials. Further, it has been pleaded that an e-auction took place for disposal of scrap conductor of different sizes being conducted by the NESCO and, accordingly, the Petitioner participated in the e- auction. Since the bid was finalized in favour of the Petitioner, the Petitioner had lifted the materials, which weighed around 107 metric tons. It has also been stated in the revision petition that the Petitioner was taking delivery in a phased manner and selling those articles to different companies.
4. On 14.05.2020, the Petitioner was transporting one such consignment for delivery to Binayak Aluminum Ltd. having all valid documents. However, the police party with ulterior // 4 // motive seized the vehicle and the materials despite submission of all valid documents by the Petitioner.
5. After the materials and Pick-up Van were seized by police, the Petitioner filed an application under Section 457 of Cr.P.C. bearing Misc. Case No.02 of 2020 before the 1st Additional Sessions Judge, Cuttack with a prayer to release his vehicle along with the scrap materials, the learned Trial Court rejected the petition dated 05.06.2020 filed by the Petitioner under Section 457 of Cr.P.C. The order dated 05.06.2020 was challenged before this Court in CRLREV No.315 of 2020. This Court disposed of the Criminal Revision No.315 of 2020 by granting liberty to the Petitioner to renew his prayer by filing a fresh application for release of the seized articles and further it was directed that if such an application is filed, the same shall be considered on its own merit and shall be disposed of in accordance with law.
6. Pursuant to order passed in CRLREV No.315 of 2020, the Petitioner again moved an application under Section 457 // 5 // of Cr.P.C. which was taken up by the Trial Court on 25.08.2020. The learned Trial Court vide impugned order dated 20.08.2020 under Annexure-6 directed for only release of the vehicle in question, i.e., Tata Pick-up Van bearing Registration No.OR-07-N-0225 in favour of the Petitioner in interim zima and was not inclined to pass any order to release the articles, i.e., electric aluminum cut piece wire in zima of the Petitioner. Being aggrieved by rejection of his prayer in part vide order dated 20.08.2020 under Annexure-6, the Petitioner has approached this Court by filing the present writ petition.
7. Heard Ms. Deepali Mohapatra, learned counsel appearing for the Petitioner and Mr. M.R. Mishra, learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the writ petition as well as other relevant materials placed before this Court for consideration.
8. It is submitted by Ms. Mohapatra, learned counsel appearing for the Petitioner that the Petitioner is the owner of // 6 // the vehicle as well as the materials that was being transported in the vehicle. She further contended that the F.I.R. under Annexure-4 has no nexus with the materials seized in the present case. The materials that were seized from the vehicle of the Petitioner on the date of occurrence were received by the Petitioner from NESCO after his bid was successful in an e-auction and that out of total quantity of 110 tones, only 7 tones were being transported by the vehicle in question having valid documents.
9. Ms. Mohapatra, learned counsel appearing for the Petitioner further contended that in view of the provisions contained in Section 457 of Cr.P.C., the Magistrate while directing deliver/release of the property has to ensure that the same is delivered to the person who is lawfully entitled to the possession thereof. A duty is cast upon the Magistrate to find out as to who is the ostensible owner and further once the ostensible owner of the seized property is established and there is no other legal impediment, then the seized article are // 7 // required to be given in zima of such ostensible owner with such terms and conditions as would be deem fit and proper by the learned Magistrate. It was also contended that at that stage, the Magistrate is not supposed to deicide with regard to the ownership of such seized articles. In such view of the matter, Ms. Mohapatra, learned counsel for the Petitioner submitted that the learned Magistrate conducted a roaving inquiry with regard to the title of the seized articles and ultimately committed an error by not releasing the articles seized from the vehicle of the Petitioner in favour of the Petitioner although the Petitioner had produced documents with regard to the ownership of such articles.
10. Learned counsel for the Petitioner also contended that the materials were seized while it was in transit. Admittedly, the vehicle in question belonged to the Petitioner and the same was rightly released in favour of the Petitioner. However, while releasing the seized articles, the learned Trial Court committed an error by not releasing the same in favour // 8 // of the person from whose lawful possession such articles were seized and recovered. It is also contended that usually while considering the application under Section 457 of Cr.P.C., the learned Magistrate releases the article in favor of a person from whose lawful possession the same is released or to a person who can establish the fact that he is the ostensible owner of such seized property. In such view of the matter, learned counsel for the Petitioner urged that the impugned order is unsustainable in the eye of law and a part of the order by which the learned court below has rejected the prayer of the Petitioner for release of the article in favour of the Petitioner be set aside and necessary direction may be issued for release of such articles in favour of the Petitioner.
11. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, while supporting the impugned order dated 20.08.2020 under Annexure-6, submitted that the Petitioner, who is the accused in Spl. G.R. Case No.30 of 2020, was caught red-handed while // 9 // transporting electric aluminum cut piece wires illegally without any document which was subsequently seized. It was further contended that since the trial is pending, at this stage it cannot be finally decided as to who is the owner of the seized articles. It was also contended that the Authorized Officer, i.e., the Superintending Engineer (Electrical), CESU, Cuttack has already been moved for initiation of a confiscation proceeding in respect of the seized articles in terms of Section 6(1) of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988 (in short "the Act, 1988"). In such view of the matter, learned Additional Standing Counsel appearing for the State-Opposite Parties further submitted that in the event the seized articles are released in favour of the Petitioner, then there is a possibility that the Petitioner might change the nature and character of the seized articles. Additionally, it was also submitted that there exists a dispute with regard to the ownership of the seized scrap materials. Therefore, pending final adjudication of the dispute with // 10 // regard to ownership of the seized articles, it would not be proper to release the seized articles in zima of the Petitioner.
12. It was also contended by the learned Additional Standing Counsel that while the learned 1st Additional Sessions Judge, Cuttack was considering the application under Section 457 of Cr.P.C. filed by the Petitioner, an intervention application was filed at the instance of one Maa Durga Thermal Power Company Limited claiming ownership over the seized articles.
13. On perusal of the impugned order, it appears that the same intervener had contended that it had started its operation in the year 2012 at Bainchua, Tangi for generation/production of power and to supply/sell the same to the Electricity Board and other industries. Furthermore, for the aforesaid purpose, electric conductors were installed at the thermal power plant to the Grid sub-station at Chandikhole. The electric wires for the aforesaid purpose were supplied by M/s. Tirupati Construction. It was also contended by the intervener that the // 11 // aforesaid power plant was about to start generation of power, but due to lack of transpiration of raw materials, the power generation activity could not be commenced. Thereafter, the intervener came to learn that the aluminum conductor wires were stolen by some unknown miscreants, for which, an F.I.R, was lodged at Tangi Police Station leading to the registration of P.S. Case No.74 of 2020 under Section 379 of I.P.C. and, accordingly, the materials were seized by the Tangi police although in connection with P.S. Case No.75 of 2020. Although the intervener had identified the materials at the Police Station, however, the same was not released in his favour. Accordingly, the intervener made a prayer before this Court that the seized articles be released in their favour under Section 457 of Cr.P.C. Further, in support of such contention, the intervener filed several documents.
14. A close scrutiny of the impugned order also reveals that the learned Court in seisin over the matter in course of hearing of the application under Section 457 of Cr.P.C., // 12 // called for a report from the IIC of Tangi Police Station. A report was submitted before the Court below. Further, it has been observed in the impugned order that on perusal of the said report, the IIC, Tangi Police Station has stated that the Pick-up Van in question was loaded with electric aluminum wire cut pieces and as per the provisions under Section 6(1) of the Act, 1988, a requisition has been sent to the Superintending Engineer, Electrical, Cuttack for initiation of a confiscation proceeding in respect of seized articles. Moreover, the said report also reveals that on the complaint of one Sanjib Kumar Jena, who was an employee of Maa Durga Thermal Power Company Limited, Tangi, Tangi P.S. Case No.74 of 2020 under Section 379 of I.P.C. has been registered and the investigation is going on. In course of investigation, the complainant has also identified the seized aluminum wires. Since the investigation in the above noted P.S. case is going on, the accused persons are yet to be arrested. The IIC has also stated in the said report that although the seized // 13 // vehicle is no more required for the purpose of investigation, however, the seized articles are required for further investigation in both the cases.
15. On perusal of the impugned order dated 20.08.2020 under Annexure-6, this Court observed that the learned 1st Additional Sessions Judge, Cuttack has dealt with the provisions of the Act, 1988 in detail. Further, Section-6 of the aforesaid Act lays down the procedure regarding seizure of electricity supply line materials. Section-7 of the said Act provides for confiscation of the seized article by the Authorized Officer. This Court further observed that the learned court below has expressed doubt with regard to procedure adopted by the IIC, Tangi P.S. while dealing with the seized article. It has been specifically observed that the seized articles were identified by the complainant in Tangi P.S. Case No.74 of 2020. However, the I.O. has sent a requisition to the Superintending Engineer, Electrical, Cuttack for initiation of a confiscation proceeding in respect of the // 14 // seized articles. Thus, the learned court below has expressed its doubt with regard to the maintainability of a confiscation proceeding under Section 7 of the Act, 1988. Further, the learned court below has also observed that there exists a rival claim with regard to the ownership of the seized article. Accordingly, the court below has opined that the provisions as contemplated under Sections-6 and 7 of the Act, 1988 has not been fully complied by the I.O. or the Authorized Officer.
16. Additionally, the learned 1st Additional Sessions Judge, Cuttack has expressed his doubt with regard to the applicability of Section-7 of the Act, 1988. While saying so, the learned court below has referred to a judgment of this Court in the case of Debendra Kumar Sahoo v.
Superintending Engineer-cum-Authorized Officer, Balasore Electricity Circle, Balasore, reported in (2012) 52 OCR-15. This Court while considering a similar issue in Debendra Kumar Sahoo's case (supra) has held that Section-7 of the 1988 Act has been deemed to have been repealed by // 15 // necessary implication on the passing of Electricity Act, 2003 and, as such, the confiscation proceeding initiated under Act, 1988 after coming into force of 2003 Act is null and void and, accordingly, an Ambassador Car carrying 4 bundles of aluminum wires, which were seized by the police on 21.08.2003, were directed to be released in favour of the owner of the Ambassador Car. In view of the law laid down by this Court in Debendra Kumar Sahoo's case (supra), the learned court below has categorically held that no proceeding for confiscation of the seized electric wires shall lie under the provisions of 1988 Act and the concession made by learned Special P.P. in this regard has also been taken note of in the impugned order, particularly to the effect that there exists no provision like the one under Section-7 of the Act, 1988 in the Electricity Act, 2003. Therefore, this Court has no hesitation in coming to a conclusion that the seized articles are not liable to be confiscated under Section-7 of the Act, 1988 and, // 16 // accordingly, the same is to be dealt with in view of the provisions contained under Section 457 of the Cr.P.C.
17. So far as the seized vehicle in question is concerned, which is a Tata Pick-up Van, has been dealt with by the learned 1st Additional Sessions Judge, Cuttack on an application under Section 457 of Cr.P.C. by the owner vide impugned judgment dated 20.08.2020. On being satisfied with the ownership of the vehicle as well as the report of the I.O. that the vehicle is no more required for the purpose of investigation, learned court below was pleased to release the vehicle in favour of the Petitioner till disposal of Spl. G.R. Case No.30 of 2020 pending before the said Court and further such release is also subject to the terms and conditions mentioned in the order dated 20.08.2020. On perusal of the said part of the order, this Court finds no infirmity in the impugned order dated 20.08.2020.
18. So far as release of the seized articles are concerned, which are cut pieces of aluminum electric wires used for the // 17 // purpose of transmission of electricity, learned court below was not inclined to release the same in favour of the Petitioner mainly on the ground that there exist rival claim with regard to the ownership of such seized articles. Further, while rejecting the prayer for release of the seized articles, the learned court below has held that at that juncture the court is not in a position to arrive at a definite conclusion with regard to the ownership of the seized articles and, accordingly, no appropriate order could be passed for release of such articles in favour of the Petitioner. It was also observed that such order for release of seized articles could be passed at a later stage, i.e., after conclusion of the trial in the original case.
19. Having heard the learned counsel for the respective parties and on a conspectus of the materials placed before this Court and further upon a careful scrutiny of the impugned order dated 20.08.2020 passed by the learned 1st Additional Sessions Judge, Cuttack, this Court found that so far the release of the vehicle is concerned, there is no infirmity and, // 18 // accordingly, it is held that the learned court below has adopted the right procedure. So far as the release of the seized articles are concerned, this Court is of the considered view that although the learned court below has referred to the judgment of the Hon'ble Supreme Court in Sundarbhai Ambalal Desai -Vrs.- State of Gujarat, reported in 2003 (24) OLR (SC) 444, however, the principle laid down by the Hon'ble Supreme Court has not been followed while considering the application under Section 457 for release of the seized article in the present case. Moreover, this Court by following the principle laid down by the Hon'ble Supreme Court in Sunderbhai Ambala Desai'case (supra) in the case of Ashis Ranjan Mohanty (Adv.) v. State of Odisha and others, reported in 2022(I) OLR-555 decided by a Division Bench of this Court specifically laid down the procedure to be followed by the Courts while considering the release of seized articles/properties/vehicles. A Division Bench of this Court in Ashis Ranjan Mohanty's case (supra) has specifically laid // 19 // down a series of directions provided in Paragraphs-16 to 18 of the judgment. Since the procedure laid down by the Division Bench of this Court with regard to release of vehicle/seized articles/properties has not been followed in the instant case, this Court is of the considered view that so far release of the seized articles are concerned, the matter needs to be reexamined by the 1st Additional Sessions Judge, Cuttack by taking into consideration the guideline issued by this Court in Ashis Ranjan Mohanty's case (supra) and pass necessary orders after providing opportunity to the affected parties including the Petitioner.
20. In view of the aforesaid analysis, this Court deems it proper to set aside the impugned order dated 20.08.2020 passed by the 1st Additional Sessions Judge, Cuttack in Criminal Misc. Case No.20 of 2020 under Annexure-6 partly and the part of the order whereby the 1st Additional Sessions Judge, Cuttack has rejected the application under Section 457 of Cr.P.C. for release of the seized articles is hereby set aside.
// 20 // Accordingly, the matter is remanded back to the Court of 1st Additional Sessions Judge, Cuttack or any other Court in seisin over the matter with a specific direction to consider the application filed by the Petitioner under Section 457 of Cr.P.C. keeping in view the directions issued by a Division Bench of this Court in Ashis Ranjan Mohanty's case (supra) after providing opportunity of hearing to the parties, who are likely to be affected by the said order and to take a decision in the matter expeditiously, preferably within a period of eight weeks from the date of production of a certified copy of this judgment.
21. Accordingly, the Criminal Revision is allowed. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 28th February, 2023/D. Aech, P.A.