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2017 Supreme(Ori) 64
IN THE HIGH COURT OF ORISSA : CUTTACK
S.K. SAHOO, J.
Sri Khageswar Parida - Petitioner
Versus
State of Orissa - Opposite Party
Criminal Revision No. 679 of 2016
Decided On : 20-01-2017
For the Petitioner: Mr. R.R. Bhattacharya, Mr. R.K. Behera
For the State of Orissa : Mr. Deepak Kumar
The competent Court has the jurisdiction to consider the application for release of seized property under section 457 Cr.P.C. and the need for reporting the seizure to the Court.
Headnote:
Seizure - Criminal Procedure - Section 457 Cr.P.C. - 21(4) of the MMDR Act - 21(4-A) of the MMDR Act - Section 457 Code of Criminal Procedure - Rule 12 of the Orissa Mineral (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 - Section 21(4) of the Mines & Minerals (Development & Regulation) Act, 1957
Fact of the Case:
The petitioner filed a petition for the release of his seized truck, which was carrying coal without valid documents. The petition was rejected by the Magistrate, citing lack of jurisdiction due to non-reporting of the seizure.
Finding of the Court:
The Court directed the Mining Officer to submit a report on the seizure and allowed the petitioner to file a fresh application under section 457 Cr.P.C. for the release of the truck, to be adjudicated by the Magistrate in accordance with the law.
Issues: Jurisdiction of the Magistrate to entertain the application under section 457 Cr.P.C. and the non-reporting of the seizure to the Court.
Ratio Decidendi: The Court emphasized the need for reporting the seizure to the competent Court and directed the Magistrate to consider the application for release in accordance with the law.
Final Decision: The Criminal Revision petition was disposed of with directions for the submission of a report on the seizure and adjudication of the fresh application for release.
JUDGMENT :
S.K. Sahoo, J.
This revision has been filed by the petitioner Khageswar Parida challenging the impugned order dated 16.08.2016 passed by the learned J.M.F.C. (Rural), Cuttack in Criminal Misc. Case No. 129 of 2016 in rejecting the petition under section 457 Cr.P.C. filed by the petitioner for release of Truck bearing registration no. OR-06-J-1592, Engine no. 697TC68PZY134181, Chassis no. MAT452027A1P39144 which was seized by the opposite party Mining Officer, Cuttack Circle, Cuttack.
2. It is the case of the petitioner that on 27.04.2016 at about 4.00 p.m., on a surprise checking of the Mining Officer, Cuttack Circle, Cuttack, it was found that the vehicle in question was parking near Hanuman Petrol Pump, Manguli under Tangi police station being loaded with Coal (Minerals). On the demand of the Mining Officer, since the driver of the vehicle could not produce any valid document in support of the loaded coal in the Truck, the vehicle was seized and it was kept in the custody of the Mining Officer. It is the further case of the petitioner that the petitioner is the registered owner of the vehicle and he was not aware about the transportation of coal in his vehicle without valid document.
3. The petition filed by the petitioner for release of the truck was rejected by the learned Magistrate on the ground that no report has been filed before him in connection with the seizure of the vehicle and more over, the confiscation proceeding has already been started and therefore, he lacks jurisdiction to entertain the said application.
4. The learned counsel for the petitioner challenging the impugned order contended that the observation of the learned Magistrate that he has no jurisdiction to entertain an application under section 457 Cr.P.C. is erroneous and suffers from non-application of mind. He further submitted that even though no report regarding the seizure of the vehicle has been reported to the Court, nonetheless since there is no dispute about the seizure of the vehicle and the petitioner has brought the factum of seizure to the knowledge of the Court, the Court should have verified the same from the concerned authority and should not have rejected the petition in a mechanical manner.
5. Learned counsel for the petitioner placed reliance in the case of Tafzil Sarwar Vs. The Dy. Director, Mines Joda Circle reported in Vol. 120 (2015) Cuttack Law Times 974 wherein this Court held as follows:-
“9. Placing reliance on the law laid down in the case of Baijnath Vs. State of Bihar, A.I.R. 1970 S.C. 1436 so also this Court in the case of M/s. Jai Durga Iron Pvt. Ltd. Vs. Superintendent of Police, Sundergarh and another, (2006) 34 OCrR 655 & M/s. T.R. Chemicals, A.I.R. 2008 Ori 126, this Court is of the view that when the superior legislation specifically empowers a Court, for disposal of the property seized under Section 21(4) of the MMDR Act, the Rule made by the State Government for disposal of such property authorizing another authority besides the Court competent, is inoperative inasmuch as the same is contrary to the statutory provisions under the MMDR Act and the State Government in its rule making power under Section 23-C of the MMDR Act could not have authorized any other authority for confiscation of the same. Therefore, since the competent authority has no power to confiscate the property as aforesaid, the impugned order of confiscation was without jurisdiction and an appeal against such order of confiscation under Rule-12(7) of the Orissa Minerals Rules, 2007 does not lie to the District Judge. Hence, this writ petition stands allowed and the impugned order of confiscation at Annexure-2 stands set-aside. The petitioner is at liberty to seek release of his vehicle in question seized by the competent authority before the appropriate forum, i.e., the Court which is empowered to dispose of the property seized in this case by the competent authority.”
6. Learned counsel for the petitioner further placed reliance in the case o
