Orissa High Court
Nasim Khan vs State Of Odisha .... Opp.Party on 23 August, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.346 of 2022
Nasim Khan .... Petitioner
Mr. Arijeet Mishra, Advocate
-versus-
State of Odisha .... Opp.Party
Mr. Arupananda Das
Addl. Government Advocate
CRLREV No.205 of 2022
Babuli Pangi .... Petitioner
Mr. Devasis Mohanty, Advocate
-versus-
State of Odisha .... Opp.Party
Mr.Arupananda Das
Addl. Government Advocate
CRLREV No.253 of 2022
Raj Kumar Soni .... Petitioner
Mr. Sangram Keshari Rout,
Advocate
-versus-
State of Odisha .... Opp.Party
Mr.Arupananda Das
Addl. Government Advocate
// 2 //
CRLREV No.266 of 2022
Narayan Chandra Mohanty .... Petitioner
Mr. Asmiya Ranjan Majhi,
Advocate
-versus-
State of Odisha .... Opp.Party
Mr. Arupananda Das
Addl. Government Advocate
CRLREV No.353 of 2022
Bhupendra Sahu .... Petitioner
Mr. Jagabandhu Sahu, Advocate
-versus-
State of Odisha .... Opp.Party
Mr. Arupananda Das
Addl. Government Advocate
CRLREV No.356 of 2022
Malaya Ranjan Bhukta .... Petitioner
Mr. Kartik Chandra Tripathy,
Advocate
-versus-
State of Odisha .... Opp.Party
Mr. Arupananda Das
Addl. Government Advocate
CORAM:
JUSTICE S.K. SAHOO
Page 2 of 11
// 3 // Order No. ORDER 23.08.2022
02. All these matters are taken up through Hybrid arrangement (video conferencing/physical mode).
Since common questions of fact and law are involved in all these cases, with the consent of the learned counsel for the parties, those are heard together.
CRLREV No.346 of 2022 has been filed by the petitioner Nasim Khan challenging the order dated 06.07.2022 passed by the learned S.D.J.M., Jeypore in Misc. Case No.108 of 2022 which arises out of CIS No. N.D.P.S. Case 01 of 2022 in rejecting the petition filed by the petitioner under section 457 of Cr.P.C. read with section 52-A of the N.D.P.S. Act for release of four wheeler i.e. Innova Motor Car bearing registration No.CG-10F-1101 in his favour mainly on the ground that a Single Judge Bench of this Court (Hon'ble Shri Justice S. Pujahari) in paragraph 5 and 6 of CRLREV No.404 of 2020, CRLREV No.185 of 2021 and CRLREV No.177 of 2021 has been pleased to hold that the prayer of release of the vehicle in question filed by the petitioner in the case no more survives as the same is subject to pre-trial disposal as per section 52-A of the N.D.P.S. Act. Learned Single Judge placed reliance on the Division Bench judgment of this Court in the case of State of Odisha -Vrs.- Registrar General, Orissa Page 3 of 11 // 4 // High Court in Writ Petition (Civil) No.32580 of 2021.
In other revision petitions i.e. CRLREV No.205 of 2022, CRLREV No.253 of 2022, CRLREV No.266 of 2022, CRLREV No.353 of 2022 and CRLREV No.356 of 2022, the prayer for release of the vehicles under section 457 of Cr.P.C. in connection with the offence under N.D.P.S. Act have been rejected basing on the aforesaid decisions rendered in the revision petitions by the Hon'ble Shri Justice S. Pujahari.
Learned counsel appearing for the petitioners in different revision petitions argued that so far as Writ Petition (Civil) No.32580 of 2021 is concerned, in the judgment, there is nothing to show that a petition under section 457 of Cr.P.C. cannot be entertained under any circumstances for release of the vehicle in a case under N.D.P.S. Act. It is submitted that the said Division Bench judgment mainly focuses on section 52-A of the N.D.P.S. Act and certain directions have been issued to speed up the process under section 52-A (2) to (4) of the N.D.P.S. Act. It is further submitted that though in the Division Bench judgment, a reference has been made to the case of Jitendra Kumar Digal -Vrs.- State of Odisha (which is judgment dated 22.10.2020 passed in Criminal Revision No.281 of 2020) wherein it was held that when the accused is the owner of the seized vehicle carrying the narcotic goods, the vehicle should not be released in Page 4 of 11 // 5 // his favour but in the said decision, the Hon'ble Single Judge (Hon'ble Shri Justice D. Dash) has been pleased to hold in paragraph 18 that the interim release of the vehicle is permissible only when the petitioner- owner of the vehicle prima facie satisfies the Court as to the fulfillment of the requirements of becoming successful in discharging the reverse burden of proof as placed on him by virtue of sections 35 and 54 of the N.D.P.S. Act and thus show that there is reasonable ground for believing that the petitioner-owner is not guilty of the said offence of carrying/transporting the narcotic drugs and psychotropic substances himself.
Learned counsel further argued that on the very day the judgment in Writ Petition (Civil) No.32580 of 2021 was pronounced by the Division Bench, another judgment was pronounced by the same Division Bench in the case of Ashis Ranjan Mohanty (Adv.) -Vrs.- State of Odisha and others in W.P.(C) No.31622 of 2021 wherein it was specifically held that so far as the vehicles are concerned, it may be released either to the rightful owner or any person authorized by the rightful owner and the procedure has been laid down regarding steps to be taken before releasing such vehicles.
Learned counsel further submitted that section 36-C of the N.D.P.S. Act clearly indicates regarding application of Cr.P.C. to proceedings before a Special Court save as otherwise provided under N.D.P.S. Act and section 51 of Page 5 of 11 // 6 // the N.D.P.S. Act further states that the provisions of Cr.P.C. shall be applied to warrants, arrests, searches and seizures under this Act.
Learned counsel further submitted that the observation made by the learned Single Judge of this Court in CRLREV No.404 of 2020, CRLREV No.185 of 2021 and CRLREV No.177 of 2021 relying on the judgment rendered in Writ Petition (Civil) No.32580 of 2021 that after the pronouncement of such judgment, the prayer for release of the vehicle of the petitioner in question no more survives as the same is subject to pre- trial disposal as per section 52-A of the N.D.P.S. Act nowhere flows from the Division Bench decision.
Learned counsel further submitted that in section 52-A of the N.D.P.S. Act, there is nothing which debars about the applicability of section 457 of Cr.P.C. Reference was also placed on the decision of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai -Vrs.- State of Gujarat reported in (2002) 10 Supreme Court Cases 283 wherein the Hon'ble Court after analyzing the relevant provisions of the Cr.P.C. held as follows:
"17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and Page 6 of 11 // 7 // guarantee as well as security for return of the said vehicles, if required at any point of time.
This can be done pending hearing of applications for return of such vehicles.
18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."
Reliance was also placed on the decision of the Hon'ble Supreme Court in the case of General Insurance Council and others -Vrs.- State of Andhra Pradesh reported in (2010) 6 Supreme Court Cases 768, wherein it was directed as under:
Page 7 of 11// 8 // "14. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only do they occupy substantial space in the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its roadworthiness if it is kept stationary in the police station for more than fifteen days.
Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/ Union Territories/ Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the division/Commissioner of Police concerned of the cities/Superintendent of Police concerned of the district concerned."
Page 8 of 11// 9 // Reliance was also placed on the decision of this Court in the cases of Basanta Kumar Behera -Vrs.- State of Orissa reported in (2013) 54 Orissa Criminal Reports 876 and Balabhadra Nayak -Vrs.- State of Orissa reported in 2012 SCC OnLine Ori
312. In view of the decisions of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai (supra), General Insurance Council (supra) and the Division Bench of this Court in the case of Ashis Ranjan Mohanty (supra) so also Single Bench of this Court in the case of Jitendra Kumar Digal (supra), I respectfully disagree with the view taken by my learned and esteemed Brother Hon'ble Justice S. Pujahari in the aforesaid Criminal Revision petitions i.e. CRLREV No.404 of 2020, CRLREV No.185 of 2021 and CRLREV No.177 of 2021 that the prayer for release of the vehicle in question under section 457 of Cr.P.C. no more survives as the same is subject to pre-trial disposal as per section 52-A of the N.D.P.S. Act.
Law is well settled as held in the case of N. Ratnakumari -Vrs.- State of Odisha reported in (2014) 58 Orissa Criminal Reports 1050 that in view of section 5 of Cr.P.C., if the Special Act does not indicate the specific provision for enquiry into, trial or otherwise dealing with such offences then the procedure of Cr.P.C. would be applicable. Thus, when a Special Law Page 9 of 11 // 10 // prescribes for a special form of procedure, the procedure enumerated under the Cr.P.C. is not to be followed. Only when a Special Law or Local Law does not provide the procedure or dealing with the offence under the said Special or Local Act, the procedure contained in the Cr.P.C. is to be followed.
When there is no specific provision in the N.D.P.S. Act which debars applicability of section 457 of Cr.P.C. relating to the release of the vehicles during investigation or pendency of trial rather there are provisions in the N.D.P.S. Act regarding application of Cr.P.C. to proceedings before Special Court so also to the searches and seizures etc. and particularly keeping in view the consequences likely to follow if the vehicles are kept in the police stations after its seizure for a longer period, it cannot be said that in view of the provision under section 52-A of the N.D.P.S. Act, the prayer for release of the vehicle under section 457 of Cr.P.C. no more survives.
It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of different arguments or otherwise on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than Page 10 of 11 // 11 // legal propriety forms the basis of judicial procedure and it must be respected at all costs. One Bench of this Court does not sit in appeal over the other Bench particularly when it is a coordinate Bench.
For the aforesaid reasons, I direct the matters be placed before Hon'ble the Chief Justice to constitute an appropriate Bench to examine the question as to whether the provision under section 457 of Cr.P.C. will have no application in a case of release of the vehicle seized under the N.D.P.S. Act during investigation or trial of the case.
( S.K. Sahoo) Judge RKM Page 11 of 11