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2017 Supreme(Ori) 63
IN THE HIGH COURT OF ORISSA : CUTTACK
S.K. SAHOO, J.
Sri Bijoy Kumar Sahoo – Petitioner
Versus
State of Orissa - Opp. Party
Criminal Revision NO. 681 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 judgment emphasizes the Magistrate's jurisdiction to entertain release applications under section 457 Cr.P.C. and the requirement for the Mining Officer to report seizures to the competent 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(7) of the Orissa Minerals Rules, 2007 - Rule 13 of the Rules, 2007
Fact of the Case:
The petitioner's truck was seized by the Mining Officer for transporting coal without valid documents. The Magistrate rejected the release petition citing lack of jurisdiction due to ongoing confiscation proceedings.
Finding of the Court:
The Court directed the Mining Officer to report the seizure to the Magistrate and allowed the petitioner to file a fresh release application, emphasizing the Magistrate's power to entertain such applications.
Issues: Jurisdiction of the Magistrate to entertain release application under section 457 Cr.P.C.
Ratio Decidendi: The Court clarified the Magistrate's jurisdiction to consider release applications under section 457 Cr.P.C. and emphasized the need for the Mining Officer to report seizures to the competent Court.
Final Decision: The Criminal Revision petition was disposed of with directions for the Mining Officer to report the seizure to the Magistrate and for the Magistrate to consider the release application.
JUDGMENT :
S.K. Sahoo, J.
1. This revision has been filed by the petitioner Bijoy Kumar Sahoo challenging the impugned order dated 16.08.2016 passed by the learned J.M.F.C. (Rural), Cuttack in Criminal Misc. Case No. 106 of 2016 in rejecting the petition under section 457 Cr.P.C. filed by the petitioner for release of Truck bearing registration no. OR-05-AQ-6099, Engine no. JAP102510, Chassis no. MB1CTDYC6BPAA4985 which was seized by the opposite party Mining Officer, Cuttack Circle, Cuttack.
2. It is the case of the petitioner that on 12.01.2016 at about 4.45 a.m., on a surprise checking of the Mining Officer, Cuttack Circle, Cuttack, it was found that the vehicle in question was parking near Tangi 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 -Vrs.-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 -Vrs.-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. -Vrs.-Superintendent of Police, Sundergarh and another : (2006) 34 Orissa Criminal Reports 655 & M/s. T.R. Chemicals : A.I.R. 2008 Orissa 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
