The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.644 of 2023 Mr. Bijaya Kumar Ragada State of Odisha ..……. Petitioner Additional Government Advocate -Versus- Dinesh Sagar ..……. Opposite Party
Legal Reasoning
Mr. Basudeb Pujari, Advocate CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 13.02.2024 Order No. 03. 1. The present petition is filed by the D.F.O., Kalahandi, North Division, Bhawanipatna, inter alia, challenging the order dated 12.10.2022 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in Criminal Revision No.17 of 2022 whereby the order dated 08.04.2022 and 13.04.2022 passed by the learned S.D.J.M., Bhawanipatna in CMC No.14 of 2022 was assailed. The Revisional Court has dismissed the Revision Petition filed by the petitioner-State. 2. The present petition is arising out of an application moved by the opposite party under Section-457 Cr.P.C. for releasing of the vehicle. 2 Learned S.D.J.M., Bhawanipatna, vide its order dated 08.04.2022, has been pleased to direct release of the vehicle with the following conditions:- tamper the colour nor He shall not change The petitioner will produce the seized vehicle as and when “(i) required by the Court. (ii) the identification mark of the vehicle in any manner and before taking possession he will submit the photocopy of seized vehicle from all sides. (iii) He shall not transfer the vehicle by way of sell or any other mode and keep it in good condition. (iv) He shall keep the vehicle in running condition with proper third party insurance. (v) (vi) He shall pay a cash security of Rs.10,000/- (Rupees ten thousand)” He will not utilize the vehicle for any illegal purpose. 3. The aforementioned order of the learned S.D.J.M. was assailed by the petitioner before the Revisional Court. The Revisional Court, while dismissing the revision, inter alia, stated as follows: “6. I have carefully perused the LCR in 2(b) c.c. case No.01 of 2022 and CMC No.14 of 2022 of the court of the learned S.D.J.M., Bhawanipatna with reference to the contentions raised on behalf of both the parties. In this case, the alleged Mahindra Bolero Pick-up vehicle as alleged was detected by the Forest staff while transporting 60 nos. of Sal sawn sizes near Tetelpada village and the O.P. Dinesh Sagar was transporting the forest produce in his vehicle. Moreover, the vehicle was neither detected nor seized by the Forester inside any protected reserve forest or any wild life sanctuary nor there is also any allegation by the prosecution to that effect. In this case the vehicle was seized on N.H.26 near Tetelpada village. 7. While conducting enquiry in a Confiscation Proceeding under Section 56(2-a) of the Orissa Forest Act, 1972, the Authorized Officer has perhaps no business to delve into the matter relating to ownership of the seized vehicle, allegedly used in commission of the Forest offence and the scope of enquiry thereunder is restricted to find out as to if the owner of the vehicle had knowledge regarding use of his vehicle for commission of any forest offence or if he had connivance with the offenders in using the vehicle for such purpose. When the Forester submitted the matter before the Authority for initiation of a proceeding in terms of Section 56 of the Orissa Forest Act, 1972, it is 3 apparent that he was prima facie satisfied that O.P. Dinesh Sagar is the owner thereof. Moreover, even till date, no other person has come forward to claim ownership over the seized Mahindra Bolero Pick-up vehicle. So, in my considered opinion, the matter relating to the ownership of the seized vehicle of this case is prima facie with the present O.P. Dinesh Sagar, who is claiming its ownership. The O.P. in his petition before the lower Court has stated that his vehicle has been kept outside of the Range Officer in an open place exposed to air and light and its condition is deteriorating day by day. It is found from the materials on record, so also from the documents filed by the petitioner, particularly registration certificate particulars of the seized vehicle that the present O.P. is its owner and the said vehicle was purchased under financial assistance from Mahindra Finance. 8. In the present case, there is no denial from the side of the prosecution that no confiscation proceeding has been started in respect of the seized vehicle in question, but there is no intimation regarding the date of initiation of the Confiscation Proceeding. There is also nothing on record to show that the ACF, Kalahandi North Division, Bhawaniptana has been declared as an Authorized Officer to initiate Confiscation Proceeding in respect of the seized vehicle and other properties. Hence, the Authorized Officer concerned cannot be said to have been seized with the matter of confiscation. 9. Now, coming to the legality of the order passed by the learned S.D.J.M., Bhawanipatna for release of the seized vehicle of this case, it is found from the materials on record as well as the conclusion arrived at by the learned lower Court that it is based on settled principles of law and facts and the same cannot be overturned. Accordingly, the impugned order dated 08.04.2022 & 13.04.2022 passed by the learned S.D.J.M., Bhawanipatna in CMC No.14/2022 is liable to be confirmed and needs no interference. Hence, order:” 4. Mr. Pujari, learned counsel on advance notice has appeared for the opposite party. 5. Mr. Ragada, learned Additional Government Advocate appearing for the petitioner-State, inter alia, contended that there is specific bar under Section 52(c) of the Forest Act for release of the vehicle under Section 457 4 Cr.P.C. when the vehicle is involved in the offence related to the Forest Act. 6. Perusal of the provision contained in Section 52(c) of the Forest Act indicates that the bar would only operate once the confiscation proceeding is initiated and informed to the Magistrate. However, in the instant case, when the application under Section 457 Cr.P.C. was pending before the Court of the learned S.D.J.M., Bhawanipatna, admittedly at that point in time, no confiscation proceeding was initiated, therefore, the bar under Section-52(c) of the Forest Act indeed was not operating against the Magistrate for dealing with the application under Section 457 Cr.P.C. 7. Learned S.D.J.M., Bhawanipatna accordingly allowed the application and imposed various conditions as stated above. When the matter was taken up to the Revisional Court by the petitioner, the Revisional Court was testing the legality of the order of the Magistrate and accordingly rejected the revision petition. The petitioner is aggrieved by the same. 8. Mr. Ragada, learned Additional Government Advocate relied upon the Judgment dated 30.09.2021 of the Madhya Pradesh High Court in the case of Dilip Buidcon Ltd. vs. Chief Conservator of Forest and others passed in W.P. No.18604 of 2021. He emphasized on paragraph-3 of the said judgment which reads as under: 5 “Primarily, the learned Government Advocate appearing for the respondents/State points out that in view of the law laid down by the Supreme Court in re State of Madhya Pradesh v. Uday Singh (2020) 12 SCC 733 and various other similar cases, once the vehicle is confiscated under the Forest Act, it cannot be released by the direction of the High Court.” 9. Mr. Ragada, learned Additional Government Advocate relying upon the provisions of law in the instant case under the Forest Act and on the strength of the judgment cited above has vehemently contended that the order of the Revisional Court is not sustainable under law. 10. On the contrary, Mr. Pujari, learned counsel for the opposite party took me to the order of the learned S.D.J.M., Bhawanipatna and the Revisional Court and contended that the learned S.D.J.M., while allowing the application under Section 457 Cr.P.C. has imposed various conditions. The petitioner is not prejudiced even if the confiscation proceeding has been initiated. Since the condition for release of the vehicle mandates the opposite party to produce the vehicle as and when required and he has also filed indemnity bond to that effect. He would be participating in the confiscation proceeding and contest the proceeding on merit. Since the condition of release of the vehicle makes it mandatory for him to produce the vehicle as and when required pending outcome of the Confiscation Proceeding, he would produce the vehicle before the authority, if in the event, he will not succeed in the confiscation proceeding. 6 11. Therefore, there is no infirmity in the impugned order, as the same is neither bar under law nor prejudicial to the Confiscation Proceeding stated to have been initiated by the petitioner against the opposite party. 12. With the aforementioned observation, the CRLMC is dismissed. (S.S. Mishra) Judge Subhasis/P.A. Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 15-Feb-2024 18:55:00