Orissa High Court
Snehalata Sahoo vs State Of Odisha .... Opposite Party on 22 November, 2021
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 999 of 2021
Snehalata Sahoo .... Petitioner
Mr. B.K.Mohanty, Advocate
-Versus -
State of Odisha .... Opposite Party
Mr. Priyabrata Tripathy,
Addl. Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER_
22.11.2021
Order No.
4. 1. This matter is taken up through hybrid mode.
2. In the present application filed under Section 482
Cr.P.C., the petitioner assails the order dated 10.02.2021
passed by the learned Sessions Judge, Puri in Crl. Misc. Case
No.10 of 2020 arising out of Special G.R. Case No. 104/2020
in rejecting his application for release of his vehicle under the
provisions of Section 457 Cr.P.C..
3. The petitioner claims to be the registered owner of a
SWIFT DEZIRE DIESEL VDI Car bearing Registration No.
OR-02-AG-1094, which was seized on 17.08.2020 by the
police in connection with Baselisahi P.S. Case No. 213/2020
for the alleged commission of offence under Section
21(C)/29 of N.D.P.S. Act. After seizure, the vehicle is said to
be kept in the Baselisahi Police Station premises being
exposed to sun and rain. The petitioner filed a petition under
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Section 457 of Cr.P.C. before the learned Sessions Judge,
Puri with prayer to release the vehicle in her favour. Learned
Sessions Judge, however, taking note of the provisions under
Section 60(3) of the N.D.P.S. Act held that there is no prima
facie material on record that the petitioner had no knowledge
of the conveyance being used for transporting the narcotic
drug and that she he had taken precaution against such use is
a matter to be decided during trial. It was further held that the
vehicle was found carrying contraband articles and the
petitioner had not furnished any materials to indicate that the
vehicle was used for hire. Thus, taking into account the
amount of contraband articles recovered and seized, which is
coming under the purview of commercial quantity, learned
Sessions Judge dismissed the petition vide order dated
10.02.2021, which is impugned in the present application.
4. Heard Mr. B.K. Mohanty, learned counsel for the petitioner and Mr. P. Tripathy, learned Addl. Standing Counsel for the State.
5. It is submitted by Mr. Mohanty that the impugned order is patently illegal since there is no provision in the NDPS Act for initiation of confiscation proceeding simultaneously with the trial of the case as is available in other statutes like the Forest Act and the Excise Act etc. Therefore, reference to Section 60(3) of the N.D.P.S. Act by the learned Sessions Judge is entirely misconceived.
6. Mr. P. Tripathy, learned Addl. Standing Counsel on the other hand has fairly submitted that the NDPS Act does Page 2 of 5 Page 2 of 5 not have any provision for interim release of the vehicle, for which the provisions under the Cr.P.C. alone are to be considered.
7. The confiscation referred to in Section 60 is an exercise to be resorted to after trial of the case, whereby, the owner is called upon to prove that the vehicle carrying the contraband was so used without his knowledge or connivance or of his agent or the person in-charge of the vehicle and that each of them had taken all reasonable precaution against such use.
8. As has been rightly submitted by learned counsel for the petitioner, there is no provision in the NDPS Act for interim release of the vehicle. The resultant effect of absence of such a provision is that the owner of the vehicle shall have to wait till conclusion of the trial to make an effort to take possession of his vehicle and till such time, the vehicle would be left at the mercy of the police or other authorities as the case may be, who had seized the vehicle. Such a situation would run directly contrary to the settled position of law as laid down by the apex court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002)10 SCC 283 that every effort should be made to prevent wear and tear of the vehicle and that under the normal circumstances, the vehicle ought to be released in favour of its owner albeit by imposing certain conditions. The above view has also been taken by this court in the case of Kishore Kumar Choudhury vs. State of Orissa reported in 2017 Page 3 of 5 Page 3 of 5 (Supp.-I) OLR, 1052. Thus, the position that emerges is that in the absence of any provision in the NDPS Act for interim release of the vehicle seized under other provisions of the said Act, the provisions under Section 457 of the Cr.P.C. can be invoked to order interim release of the vehicle in favour of its rightful owner.
9. In such view of the matter, the reasoning adopted by learned Sessions Judge with reference to Section 60(3) of the N.D.P.S. Act is entirely misconceived and hence, cannot be sustained in the eye of law. Moreover, the quantity of contraband alleged being carried in the vehicle in question, also cannot be a ground to reject the prayer for its interim release.
10. For the forgoing reasons therefore, this Court is of the view that the learned Sessions Judge, Puri committed an error in not directing release of the vehicle in favour of the petitioner, who claims to be its rightful owner. As such, the impugned order warrants interference by this court.
11. In the result, the CRLMC is allowed. The impugned order is quashed. It is directed that the learned Sessions Judge shall pass necessary orders for interim release of the seized vehicle after satisfying himself with regard to its ownership etc. and by imposing such conditions as he may deem fit and proper in the facts and circumstances of the case. It is further directed that since the vehicle has been lying exposed to the elements since 17.08.2020, learned Sessions Judge, Puri shall do well to pass necessary order afresh as directed above, Page 4 of 5 Page 4 of 5 within a period of 15 days from the date of receipt of certified copy of this order.
12. 1ssue urgent certified copy as per rules.
(Sashikanta Mishra) Judge A.K. Rana Page 5 of 5 Page 5 of 5