Orissa High Court
Sushanti Mohanta vs State Of Orissa on 20 May, 2005
Equivalent citations: 2005(II)OLR88
Author: R.N. Biswal
Bench: R.N. Biswal
JUDGMENT R.N. Biswal, J.
1. This revision has been preferred against the order dated 18.4.2005 passed by the J.M.F.C., Barbil in C.M.C. No. 113 of 2005 arising out of G.R. Case No. 118 of 2005 wherein he rejected the petition filed under Section 457 Cr.P.C to release the tipper bearing registration No. OR-09E-2816 in interim custody of the petitioner.
2. Succinctly stated, the facts leading to filing of this revision is that on 22/23.3.2005 during night hours while Daniel Karketta, the S.I. of Joda Police Station along with his staff was engaged in patrolling duty, he got reliable information that one tipper bearing Registration No. OR-09E-2816 was being illegally loaded with size iron ores at Kamarjoda Railway siding, proceeded to that side and found the aforesaid tipper being loaded with size iron ores was coming from Kamarjoda Railway siding. The S.I. stopped the vehicle at 3.30 A.M. near Basti Road. At this time the driver and the other occupants took to their heels leaving the loaded vehicle. The police personnel chased the culprits, but with much difficulty could be able to apprehend only one among them, who on query disclosed his name as Malayakanta Behera. He further disclosed that he was assisting the driver and helper of the tipper. Since the accused apprehended, failed to produce any document in support of transporting the iron ores, the S.I. of police seized the same along with the tipper, drew up plain paper F.I.R. and sent it to the O.I.C., Joda Police Station (Town) through constable J. Sethy, for registration of the case. Thereafter, the O.I.C. registered P.S. Case No. 81 of 2005 for the offence under Sections 379/411/34 I.P.C. read with Section 12 of the Orissa Minerals (Prevention of Theft, Smuggling and Other Unlawful Activities) Act ('the Act' hereinafter) corresponding to G.R. Case No. 118 of 2005 of the Court of J.M.F.C., Barbil and directed the S.I. Daniel Karketta to continue with the investigation of the case. Accordingly he continued investigation, after completion of which charge sheet was submitted against the accused persons under the aforesaid offences.
3. Admittedly the petitioner is not an accused in the case, but claiming herself to be the owner of the tipper filed a petition under Section 457 Cr.P.C. before the J.M.F.C., Barbil for interim custody of the same in her favour.
4. During course of hearing before the trial Court, the learned counsel appearing for the State submitted that in the meantime the I.O. had already produced the iron ores along with the tipper before the Deputy Director of Mines, Joda (Competent Authority) for initiation of a proceeding under Section 16 of the Act. So, the Court below rejected the petition under Section 457 Cr.P.C. holding that since the seized iron ores along with the tipper had already been handed over to the Deputy Director of Mines, Joda, who is the competent authority to initiate a confiscation proceeding, he lacked jurisdiction to exercise power under Section 457 Cr.P.C.
Being aggrieved with this order the petitioner has preferred the present revision.
5. Learned counsel for the petitioner submitted that Section 17 of the Act empowers the Magistrate to release the property in interim custody of the petitioner. On the other hand, learned Addl. Standing Counsel submitted that the said provision empowers the competent authority appointed under Section 5 of the Act and not the Magistrate to release the vehicle in interim custody of the owner thereof.
6. Section 17 of the Act reads as follows :-
"17. Power to release property seized on bond - The competent authority, who has seized any tools, vehicles or other conveyances under Section 16 and where a report of such seizure has been made to the Magistrate under Sub-section (2) of that section, may release the same on the execution by the owner thereof a bond for this production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of such seizure has been made."
7. As per Section 2(a) of the Act 'competent authority' means a competent authority appointed under Section 5 of the Act. In exercise of the power under Section 5 of the Act the Government of Orissa appointed some officers of the Department of Steel and Mines on 10th November 1998 vide S.R.O. No. 699/ 98. The said officers are not competent to seize tools, vehicles etc. under Section 16 of the Act. An authorized officer or a police officer is competent to seize those properties under that provision. So, in my opinion "competent authority" under Section 17 of the Act would mean authorized officer or police officer and not the competent authority appointed under Section 5 of the Act, where an authorized officer or a Police Officer has seized any tool, vehicle or other conveyance under Section 16 of the Act and reported about such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made, may release the same in favour of the owner thereof on execution of a bond for its production before the Magistrate as and when required.
8. So Section 17 of the Act does not directly empower the Magistrate to release the property seized under Section 16 of the said Act. Learned counsel for the petitioner further submitted that Sections 19 and 20 empower the Magistrate to release the property seized under Section 16 of the Act.
9. Sections 19 and 20 of the Act read as follows :-
"19. Action after seizure - Upon receipt of any report under Sub-section (2) of Section 16, the Magistrate shall, except where the offence has been compounded, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law."
"20. Minerals, tools, etc., liable to confiscation by Courts - The minerals which are the property of Government and in respect of which an offence has been committed and all tools, vehicles and other conveyances used in committing the offence, shall be liable to confiscation unless an order of confiscation has already been passed in respect thereof under Section 16."
10. A combined reading of the aforesaid two provisions shows that the Magistrate has power to pass order for disposal as well as confiscation of the properties including vehicles seized under the Act. As discussed earlier a police officer or an authorized officer as the case may be can release tools, vehicles or conveyances in interim custody of the owner thereof on execution of a bond for production of the same as and when required, before the Magistrate. Under Section 102 Cr.P.C. a police officer has also similar power of release still then Section 457 of the said Code authorizes the Criminal Courts to release the property seized, in the interim custody of its owner. So, the provision under Section 17 of the Act is not inconsistent with the provision contained under Section 457 of Cr.P.C. Both can operate side by the side particularly because of the provisions contained under Sections 19 and 20 of the Act. Under such situation it is held that where a police officer seizes any property and makes a report of such seizure to the magistrate having jurisdiction to try the offence, in connection with which the property is seized under Section 16 of the Act, the Magistrate can release the said property in interim custody of the owner thereof.
11. At this stage learned Addl. Standing Counsel submitted that once the property seized under Section 16 of the Act is produced before the competent authority, the criminal Court cannot release the same in interim custody of the owner thereof. The authorized officer or the police officer who has seized any property under Section 16 of the Act may either produce the same before the competent authority or make a report about such seizure to the competent Magistrate.
12. In the case at hand, the police officer reported about the seizure to the J.M.F.C., Barbil and produced the seized property before the competent authority after the petition under Section 457 Cr.P.C. was filed only. The Criminal Court has power of disposal of the seized property as well as power for confiscation of the same. The competent authority alone is not empowered to pass the order of confiscation. As mentioned earlier the authorized Officer or the police officer as the case may be can release the property seized under Section 16 of the Act in interim custody of the owner thereof on execution of a bond to produce the same before the Magistrate, as and when required. All these go to show that the Magistrate can release the property seized under Section 16 of the Act in interim custody in favour of its owner. So, the finding of the Court below that it lacked jurisdiction to entertain the petition under Section 457 Cr.P.C. is not sustainable.
13. Accordingly the criminal revision is allowed and the order of the J.M.F.C., Barbil dated 18.4.2005 passed in C.M.C. No. 113 of 2005 arising out of G.R. Case No. 118 of 2005 is set aside. In the impugned order learned J.M.F.C., Barbil has held that the petitioner is the registered owner of the tipper bearing No. OR-09E-2816 and as such there is no dispute about its ownership. The J.M.F.C., Barbil is directed to release the said vehicle in interim custody of the petitioner on suitable terms and conditions as would be deemed just and proper in an early date.