The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2301 of 2023 & CRLMC No. 2639 of 2023 Applications under Section 482 of the Code of Criminal Procedure, 1973. AFR CRLMC No. 2301 of 2023 State of Odisha & another ...… Petitioners --------------- -Versus- Kalandi Behera ...… Opp.Party CRLMC No. 2639 of 2023 Kalandi Behera ……. Petitioner -Versus- State of Odisha & another ...… Opp.Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner
Legal Reasoning
of a Coordinate Bench of this Court in Arun Kumar Agrawal vs. State of Odisha [ CRLREV No. 52 of 2022 decided on 20.05.2022] and directed release of the vehicle imposing certain terms and conditions. It is stated that said order of the learned District and Sessions Judge has not been Page 3 of 8 implemented as yet. The owner has therefore, filed the application under Section 482 Cr.P.C. with prayer to direct the authorities to implement the order by releasing the vehicle. The State, on the other hand questions the legality and correctness of the order referring to the statutory bar under Section 56 of the Odisha Forest Act by contending that such release is not permissible in the eye of law. 3. Heard Mr. S.K. Mishra, learned State Counsel (petitioners in CRLMC No. 2301 of 2023 and representing the opposite parties in CRLMC No. 2639 of 2023) and Mr. Laxmidhar Dash, learned counsel for the petitioner in CRLMC No. 2639 of 2023 and opposite party in CRLMC No. 2301 of 2023. 4. Mr. Mishra, learned State Counsel has referred to the proviso to sub-Section(3) of Section 56 of the Odisha Forest Act, 1972 to contend that there being a bar for release of the vehicle during pendency of the confiscation proceeding, learned District Judge could not have passed the impugned order contrary to the same. He further submits that the confiscation proceeding has since concluded with direction for confiscation of the vehicle to the State and the petitioner Page 4 of 8 has preferred appeal against such order in F.A.O. No. 3 of 2023 before the learned District Judge, Jajpur. 5. Per contra, Mr. Laxmidhar Dash would argue that appeal being a continuation of the trial, the confiscation proceeding cannot be treated as having been finally concluded because of pendency of the appeal filed by the petitioner. He further submits that the entire confiscation proceeding is contrary to the statute being only a paper proceeding as the statutory formalities have not been complied therein. In any case as on the date of application filed by the petitioner before the learned S.D.J.M. on 25.11.2021, no confiscation proceeding was pending since the show cause notice issued to the petitioner by the authorized officer on 26.11.2021 did not contain the confiscation proceeding number. 6. I have heard learned counsel for the parties at length and have also gone through the impugned order and the relevant statutory provisions. I have also taken note of the case laws cited at the bar. The question whether the confiscation proceeding initiated by the authorized officer could be treated as a valid proceeding in the eye of law is a Page 5 of 8 matter to be decided in the appeal pending before the learned District Judge (FAO No. 3 of 2023) and therefore, this Court would not like to make any observations as regards the contentions raised. Learned District Judge despite noting the fact that the confiscation proceeding was pending, directed release of the vehicle by relying upon the ratio of the cases referred to hereinbefore. It would be apposite at this stage to refer to the relevant statutory provision viz., Section 56 of the Odisha Forest Act, which is quoted below. xx 56. Seizure of property liable to confiscation. Xx (3) The property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received. xx Provided that the seized property shall not be released during pendency of the confiscation proceeding or trial even on the application of the owner of the property for such release.” Undoubtedly, the proviso places a bar for release of the vehicle during pendency of the confiscation proceeding. The proviso was inserted by way of Odisha Amendment No. 12 of 2023 as published in the Odisha Gazette Extraordinary No. 660 dated 05.05.2003. Page 6 of 8 7. In the case of Sundarbhai Ambala Desai (supra), the Apex Court held as follows; “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 taking appropriate bond and immediately by guarantee as well as security for return of the said vehicles, if required at any point of time.” 8. There is no gainsaying that the judgment of the Apex Court is the law of the land as per Article 141 of the Constitution of India and binding on all. It is also to be noted that the appellant has specifically contended that he used to run the vehicle for commercial purposes for his own sustenance earning Rs.2,000/- to Rs.3,000/- as income from the vehicle, which has been lost because of the seizure of the vehicle. This obviously affects his right to livelihood, which is guaranteed under Article 21 of the Constitution of India. 9. Taking all these factors into consideration as also the statutory bar referred to hereinbefore, this Court is of the considered view that the release of the vehicle if at all during pendency of the confiscation proceeding or the appeal can only be subject to the final outcome thereof and not absolute. In other words, the order for release of the vehicle shall have to abide by the final order passed in the confiscation Page 7 of 8 proceeding or the appeal. Since there is no guarantee of the proceedings attaining finality within a short period of time, it would enure to the benefit of no one in keeping the vehicle idle and stationary allowing thereby its value to depreciate. 10. For the foregoing reasons therefore, both the
Arguments
: Mr. S.N. Das, Addl. Standing Counsel [ in CRLMC No.2301 of 2023] M/s. Laxmidhar Dash, P.K. Das D. Sahoo, A.C. Lenka, Advocates [in CRLMC No. 2639 of 2023] For Opp. Party : M/s. Laxmidhar Dash, P.K. Das D. Sahoo, A.C. Lenka, Advocates [in CRLMC No. 2301 of 2023] Mr. S.N. Das, Addl. Standing Counsel [ in CRLMC No.2639 of 2023] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 8 JUDGMENT 18th August, 2023 SASHIKANTA MISHRA, J. Both these application filed under Section 482 Cr.P.C. are directed against the same order i.e., 16.03.2023 passed by the learned District & Sessions Judge, Jajpur in Criminal Revision No. 11/2022. The State of Odisha is the petitioner in CRLMC No. 2301 of 2023, wherein the prayer is to quash the aforementioned order, whereby the seized vehicle was directed to be released in favour of the petitioner, Kalandi Behera. On the other hand, CRLMC No. 2639 of 2023 has been filed with prayer for a direction to the concerned authorities to implement the aforementioned order passed by the learned District & Sessions Judge, Jajpur. 2. The facts, relevant only to decide the present applications are that the petitioner, Kalandi Behera claims to be the registered owner of a Ashok Leyland Pick-up Van bearing Registration No.OD-34J-6406, which was seized by the Deputy Range Officer, Jajpur Road Range for being allegedly used for committing a forest offence. A forest offence case being 2(b)CC Case No. 3 of 202 has been initiated in the Court of learned S.D.J.M., Jajpur. The petitioner filed an Page 2 of 8 application before the learned S.D.J.M., Jajpur being Crl. Misc. Case No. 213 of 2021 arising out of the aforementioned forest case for release of the seized vehicle in his favour as per Section 457 of Cr.P.C.. The application came to be rejected by learned S.D.J.M. on the ground that confiscation proceeding in respect of the vehicle had already been initiated. The petitioner carried the matter in revision to the Court of Session. By the order impugned, learned District and Sessions Judge, despite taking note of the fact that the confiscation proceeding had already been initiated, nevertheless directed release of the vehicle relying upon the judgment of the Apex Court in the case of Sundarbhai Ambala Desai vs. State of Gujarat, reported in (2003) 24 OCR (SC) 444 and of a Division of this Court in the case of Ashis Ranjan Mohanty vs. State of Odisha [W.P.(C) No. 31622 of 2021 decided on 31.01.2022] as also the judgment
Decision
CRLMCs are disposed of by directing the concerned authority to release the vehicle in favour of the petitioner, Kalandi Behera on the terms and conditions imposed by the learned District Judge in the impugned order but such order shall be subject to the final order in FAO No. 3 of 2023. 11. The CRLMCs are disposed of accordingly. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 18th August, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Aug-2023 17:53:16 Page 8 of 8