JUDGMENT

A. K. PARICHHA, J. : Petitioner has challenged the order dated 28.8.2006 passed by the learned S.D.J.M., Angul in C.T. No.1108 of 2006 rejecting his prayer for release of the Maruti Van bearing Registration No.OR-13-0242 in his interim zima.

2. The above noted Maruti Van which is under the registered ownership of the petitioner, was seized by the police authorities on 16.6.2006 at about 3.30 A.M. from the possession of Md. Imran, Md. Phiroj and Fakir Kansa when those persons were transporting 2.5 quintals of Kendu leaf in the said vehicle. After the seizure of the vehicle and Kendu leaf Nalco Nagar P.S. Case No.56 of 2006 was registered for commission of offence u/ss. 379, 411/34 of the I.P.C., Sec.4 of the Kendu Leaf Act and Sec¬tions 4, 14 and 21 of the Orissa Timber and other Forest Produce Transit Rules. The fact of Seizure was intimated to the learned Magistrate, but the vehicle was given in the custody of the Forest Range Officer as the vehicle was involved in a Forest offence and liable for confiscation u/s 56 (1) of the Orissa Forest Act. When the matter stood thus, the petitioner filed an application u/s 457 of the Cr.P.C. to release the seized vehicle in his interim custody on the plea that he is the registered owner of the vehicle and the alleged offences were committed without his knowledge or consent. The State strongly resisted the prayer of the petitioner mainly on the plea that vehicle involved in commission of forest offences is not to be released during the pendency of the confiscation proceeding and that when confisca¬tion proceeding is pending before the forest authorities the Magistrate in seisin of the criminal case has no jurisdiction to release the vehicle.

3. Learned S.D.J.M., Angul after hearing the learned counsel for the parties by the impugned order rejected the prayer of the petitioner with the observation that during the pendency of the confiscation proceeding he cannot assume jurisdiction to release the vehicle and that the vehicle involving commission of forest offence is not to be returned to the party liberally as that would encourage commission of forest offence resulting ultimately in destabilization of the environment and society.

4. Mr. S. S. Swain, learned counsel for the petitioner stated that the seizure having been made by the police authori¬ties, and the criminal case pending before the learned S.D.J.M., Angul, confiscation proceeding was not a bar and learned S.D.J.M. had every authority to exercise the power u/s. 457 of the Cr.P.C. He further stated that the petitioner being the registered owner of the vehicle and not being involved in the criminal case, the seized vehicle ought to have been released in his interim custody as other wise the vehicle will be completely damaged lying in the forest office campus exposed to sun and rain. In support of his contention Mr. Swain relied on the cases of State of Orissa v. Basant Nayak and others, (2000) 18 OCR-4; Sudhansu Kumar Das v. State of Orissa, (2000) 19 OCR-63 and, Section Forester and another v. Mansur Ali Khan (2004) 27 OCR (SC) 368.

5. Mr. S. Behera, learned Addl.Govt. Advocate per contra contended that jurisdiction of criminal Court stood ousted once confiscation proceeding u/s. 56(1) of the Orissa Forest Act was initiated. According to him, when any forest produce together with the vehicle used in commission of any forest offence is seized and subjected to a proceeding u/s 56 of the Orissa Forest Act, the power to release the property seized lies with the forest authority and not with the Magistrate in exercise of its power u/s. 457 of the Cr.P.C. In support of his stand Mr. Behera cited the cases of State of West Bengal and others v. Sujit Kumar Rana, AIR 2004 SC 1851; State of Karnataka v. K. Krishnan, AIR 2000 SC 2729; Sarat Kumar Malu v. The State of Orissa, 57 (1984) CLT 381 and Divisional Forest Officer, Territorial Division, Sambalpur v. Manjit Kaur Raina and two others, (1995) 9 OCR 526.

6. In the case of Sarat