Pravat Kumar Swain v. State of Odisha passed in CRLMC N
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1577 of 2024 Prabhanjan Kanhar …. Petitioner Mr.Amulya Ratna Panda, Advocate State of Odisha …. Opp. Party -versus-
Legal Reasoning
Mr.S.K.Mishra, ASC CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 28.08.2024 1. The petitioner is an accused in connection with Phiringia P.S. Case No.111 of 2022 corresponding to C.T. Case No.46 of 2022 for the offence punishable under Section 20(b)(ii)C/25/20 of the N.D.P.S. Act pending in the court of the learned District & Sessions Judge, Phulbani. 2. The petitioner is aggrieved by the order dated 14.03.2024 passed by the learned S.D.J.M., Phulbani in Misc. Case No.16 of 2024, whereby his prayer for release of the Bolero Pick-up Van bearing Registration No.OD-33AD-1361 has been turned down. Page 1 of 5 Order No. 02. 3. It is alleged that the petitioner, being the owner of the vehicle, was carrying the contraband in the subject vehicle. Therefore, the said vehicle has been seized. 4. The petitioner moved an application under Section 457 of Cr. P.C. for release of the said vehicle. Vide impugned order dated 14.03.2024, learned Court below has rejected the application, inter alia, stating as under: “In the sum & substance of the above discussion, it reveals that the power conferred on this Court can be invoked only by the investigating agency by filing applications U/s.- 52A, NDPS Act, which is not the case in the present facts & circumstances. Further the vehicle in question has been used for transportation of ganja, which is a grievous offence and is triable by Hon’ble Special Court of NDPS. Hence as the parent case record is not triable by this court, I am of the opinion that this court is not the court of competent jurisdiction and it shall not be appropriate on my part to come to a conclusion whether the alleged vehicle will be required at the time of trial for identical and other ancillary process. Therefore, taking into account the discussion made above, the nature & gravity of the offence for which the alleged vehicle in question has been used and the provision enshrined in Sec.52-A of NDPA act, this court is not inclined to release the vehicle in favour of the petitioner and hence the petition filed U/s.-457, Cr.P.C. stands rejected being devoid of merit.” 5. Learned trial Court apparently rejected the application of the petitioner under Section 457 of the Cr. P.C. relying upon Section 52-A of the NDPS Act. Page 2 of 5 6. Learned counsel for the petitioner has relied upon the judgment dated 23.11.2022 of this Court in the case of Lipu @ Pravat Kumar Swain vs. State of Odisha passed in CRLMC No.2924 of 2022. He has emphasized paragraphs-9 & 10 of the said judgment which read as under: “9. In response to the above, Mr. Mishra, learned counsel for the petitioner submits that Section 60 of the NDPS Act does not create any bar and that apart, Section 63 of the NDPS Act merely prescribes that the confiscation and orders in respect thereof shall be directed by the court itself either at the end of the trial. While contending so, the relevant provisions of Section 63 under NDPS Page Act are referred to by Mr. Mishra. That apart, Mr. Mishra learned counsel for the petitioner cites the following decisions, such as, Basudev Singh v. State of Odisha (2022) 87 OCR 161; Kalim Khan v. State of Odisha (2022) 87 OCR(SC) 188; and Ramakrushna Panda v. State of Odisha (2022) 87 OCR-196 which are in respect of release of the vehicles seized in connection with offences committed under the NDPS Act. two decisions 10. In Basudev Singh (supra), this Court directed release of vehicle which was found carrying contraband substance of commercial quantity in terms of Section 457 Cr.P.C. and has taken reference of Section 60(3) of the NDPS Act. The in Kalim Khan and other Ramakrushna Panda also deal with disposal of vehicles as against the objection being the subject of confiscation by taking cue of Section 60 of the NDPS Act. In so far as Section 60 of the NDPS Act is concerned, it specifies as to the substances and all other items which are seized in connection with transportation of the contraband substance to be liable to confiscation. As to Section 63(1) of the said Act, its stipulates that the Court either at the end of trial or when at the stage of framing of charge while discharging the accused direct confiscation the of articles including conveyances. In fact, sub- section (2) of Section 63 of the NDPS Act deals and includes all the articles including conveyances as Page 3 of 5 there is a reference therein to Section 60 of the NDPS Act. In fact, the Court does not find any bar in Section 63 from releasing a vehicle involved in the illicit transportation of contraband substance. Indeed, Section 60 and Section 63 of the NDPS Act reflect upon and envisage that the articles as well as the conveyances to be liable to confiscation but subject to orders of the court.” 7. In the said case as well, the petitioner was the owner of the vehicle and also the accused. The coordinate Bench of this Court by relying upon the judgment in the case of Basudev Singh vs. State of Odisha, reported in (2022) 87 OCR 161 has observed that even if Section 60(3) of the NDPS Act contemplates confiscation at the conclusion of the trial, the application under Section 457 of the Cr. P.C. for release of the vehicle in the interregnum period is not barred. Accordingly, release of the vehicle was directed in that case. 8. Having taken into consideration the facts of the present case and the judgment relied upon, I am of the considered view that the petitioner is entitled to the relief sought for by him. 9. Accordingly, the impugned order dated 14.03.2024 passed by the learned S.D.J.M., Phulbani in Misc. Case No.16 of 2024 arising out of C.T. Case No.46 of 2022 pending in the Court of the learned District & Sessions Judge, Phulbani is set aside. The Court below is directed to issue appropriate direction for release of the vehicle in subject with such Page 4 of 5 condition as deem fit and proper and subject to the confiscation proceeding, if any, to be initiated against the petitioner. 10. The Court below is also directed to follow the direction contained in the order of this Court in W.P.(C) No.32580 of 2021 in the case of State of Odisha vs. the Registrar General, High Court of Orissa, Cuttack, while passing the direction for release of the vehicle. 11. With the aforementioned observation, the CRLMC is disposed of. Judge (S.S. Mishra) Subhasis Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 02-Sep-2024 19:40:15 Page 5 of 5