Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ori) 304

IN THE HIGH COURT OF ORISSA, CUTTACK
Savitri Ratho, J.
Ramakrushna Panda - Appellant
Versus
State Of Odisha - Respondent
CRLREV No. 430 of 2021
Decided On : 02-12-2021

Advocates Appeared:
Mr. Anirudha Das, Advocate, for the Appellant; Mr. K.K. Nayak, A.S.C., for the Respondent.

The provisions of the Cr.P.C. providing for interim custody are not inconsistent with the NDPS Act.

Headnote:
OPPO Reno 2F Mobile Phone - Release under Section 401 read with Section 397 of Cr.P.C. - Section 20(b)(ii)(C) of the N.D.P.S. Act - Section 60, 63, 51, 36-C of the NDPS Act - The court discussed the provisions of the NDPS Act, the Code of Criminal Procedure, and relevant case laws to determine the release of the mobile phone used in the commission of the offence. The court referred to the parameters for considering an application for interim custody, the liability of the vehicle to be confiscated, and the guidelines for prompt interim release of the vehicle seized in connection with the commission of an offence. It concluded that the provisions of the Cr.P.C. providing for interim custody are not inconsistent with the NDPS Act, and ordered the release of the mobile phone with specified conditions.
Fact of the Case:

The petitioner filed an application challenging the order refusing to release the OPPO Reno 2F Mobile Phone seized in a case registered for commission of offences punishable under Section-20(b)(ii)(C) of the NDPS Act. The petitioner, not being chargesheeted, sought the release of the phone, claiming ownership and readiness to accept conditions for its release.
Finding of the Court:

The court found that the provisions of the Cr.P.C. providing for interim custody are not inconsistent with the NDPS Act, and ordered the release of the mobile phone in favor of the petitioner with specified conditions.
Issues: The primary issue was the release of the mobile phone used in the commission of the offence, with the petitioner claiming ownership and readiness to accept conditions for its release.
Ratio Decidendi: The court relied on the provisions of the NDPS Act, the Code of Criminal Procedure, and relevant case laws to determine the release of the mobile phone used in the commission of the offence. It concluded that the provisions of the Cr.P.C. providing for interim custody are not inconsistent with the NDPS Act.
Final Decision: The court ordered the release of the mobile phone i.e. OPPO Reno 2F Mobile Phone bearing IMEI (1) No.860527040855059 and (2) 860527040855042 in favor of the petitioner subject to specified conditions.

Judgement Key Points

Key Points: - The court held that Cr.P.C. provisions for interim custody are not inconsistent with the NDPS Act. (!) - The mobile phone OPPO Reno 2F bearing IMEI 860527040855059 and 860527040855042 is ordered to be released in favour of the petitioner subject to specified conditions. (!) - Conditions for release include: production of original ownership documents; undertaking not to claim prejudice if phone is not produced at trial; undertaking to produce the phone when required; furnishing surety of Rs 10,000; and not transferring ownership post-release. (!) (!) (!) (!) (!) - The case involved seizure of three bags of ganja (32.63 kg) and mobile phones used in commission of the offence under NDPS Act; the phone was seized from accused persons. (!) - The order sets aside the lower court's rejection of release and directs interim release of the phone pending trial. (!)

How to determine interim custody release of a mobile phone seized in NDPS case under Cr.P.C. provisions?

What is the conflict or consistency between Cr.P.C. interim custody provisions (Sections 451/457) and NDPS Act provisions (Sections 60/63/51) in relation to release of conveyances or property?

What are the conditions for the release of the OPPO Reno 2F mobile phone to the petitioner pending trial?

ORDER

1. Heard Mr. Anirudha Das, learned counsel for the petitioner and Mr. K.K. Nayak, learned Addl. Standing Counsel for the State through hybrid mode.

2. This is an application under Section 401 read with Section 397 of Cr.P.C. challenging the order dated 14.09.2021 passed in Criminal Misc. Case No.10 of 2021 arising out of T.R. No.49 of 2021 (Special G.R. Case No.126 of 2020) pending before the learned Sessions Judge -cum- Special Judge, Puri rejecting the application of the petitioner filed under Section 457 of the Code of Criminal Procedure refusing to release the OPPO Reno 2F Mobile Phone bearing IMEI (1) No.860527040855059 and (2) 860527040855042 registered in his name which had been seized in Special G.R. Case No.126 of 2020 registered for commission of offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act. The prayer of the petitioner has been rejected on the primary ground that the phone was seized from the accused persons alongwith the contraband articles.

3. The prosecution in brief is that on 15.10.2020 at about 9.00 a.m. while the S.I. of Police of Town Police Station , along with his staff were conducting patrolling duty , they raided the house of the accused persons and recovered three plastic jerry bags containing total quantity of 32 kgs. 630 grams ganja and as the accused persons failed to produce any authority in support of such possession, the I.O. seized the same along with the mobile phones used for commission of the alleged offence, from the possession of the accused persons and on his information, a case was registered for commission of offences punishable under Section-20(b)(ii)(C) of the NDPS Act against one Sarat Kumar panda, Jagannath Panda, Laxminarayan Nanda and Jayakrushna Panda. After completion of investigation, chargesheet has been filed.

4. Mr. A. Das, learned counsel for the petitioner submits that the petitioner is the son of accused Jagannath Panda and he has not been chargesheeted in the case. OPPO Reno 2F Mobile Phone bearing IMEI (1) No.860527040855059 and (2) 860527040855042 has been seized since 15.10.2020 and the petitioner is owner of this phone OPPO Reno 2F Mobile Phone. He files a memo along with copy of invoice which is kept on record. Learned counsel for the petitioner further submits that petitioner is ready and willing to accept any terms and conditions that may be imposed for release of the mobile phones. The learned counsel for the petitioner further states that the screen and battery of the mobile phone are likely to be damaged as the phone is lying idle for so long and no useful purpose will be served by detaining it in custody. His final submission is that the ground of rejection is perverse and liable for interference. He relies on the decisions in case of Sunderbhai Ambala Desai vs. State of Gujarat reported in (2003) 24 OCR (SC) 444 and General Insurance Council and others vs. State of Andhra Pradesh and others reported in 2010 (46) OCR (SC) 437 to submit that the mobile phone be released in his favour.

5. Mr. K.K. Nayak, learned Addl. Standing Counsel objected to the release stating that the mobile phone was used during commission of the offence and trial is yet to start.

6. Section 60 of the NDPS Act provides for confiscation of illicit drugs, substances, plants, materials apparatus, utensils articles and conveyances in respect of which or by means of which such offence has been committed. A detailed procedure for making confiscation under Section 60 of the NDPS Act has been provided in Section 63 of the NDPS Act. Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Section 36-C. of the NDPS Act has interalia made the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) applicable t

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