Mere possession may not require ownership for interim release of property under Cr.P.C.; lawful possession is essential, especially when the property is not liable for post-trial confiscation.

ORDER :

S.PUJAHARI, J.

1. In the wake of the pandemic Covid-19, the case is taken up through V.C.

2. Both the criminal revisions are interlinked inasmuch the orders impugned thereby relate to refusal of release of the cashew kernels seized by the Adava police in connection with Adava P.S Case No.74 of 2020 registered for alleged commission of offence punishable under Sections 20 (b)(ii)(C), 25 and 29 of the N.D.P.S Act. The learned Special Judge- cum-Sessions Judge, Gajapati-Paralakhemundi (under N.D.P.S. Act) has passed the impugned orders in exercise of power under Section 457 of Cr.P.C. and as such both the criminal revisions are taken up together and disposed of by this common order.

3. Heard the learned counsel for the petitioners and the learned counsel appearing for the State.

4. Shorn of unnecessary details, the facts relevant for disposal of both criminal revisions are as follows:

Some cashew nuts processing units in and around Palasa booked different quantities of cashew kernels with the transporter-Parameswari Road Lines, Palasa, to transport the consignment to the respective consignees, which are located in Lucknow and Kanpur in the State of U.P. On receipt of the said cashew kernels, the transporter-Parameswari Road Lines hired a truck bearing registration No.UP-79T- 1718 and got the same loaded in the said truck. When the truck was proceeding from Palasa to the destination in the State of U.P., the police of Adava Police Station on patrolling duty intercepted the truck out of suspicion, on the main road running between village Bachipanka and Mandimera. During search of the said truck, 14 bags of 8Ganja9 weighing 344 Kg. 700 gm. were found in the cabin of the truck, and, as such, after conducting the necessary legal formalities, police effected seizure of the said Ganja and took the driver and cleaner to custody. The truck with the cashew kernels and other documents indicating transport of the cashew kernels were also seized by the police. Thereafter, the case referred to above was registered on the basis of the report lodged by the Police Officer making such seizure, and the investigation was taken up by police. The transporter-Parameswari Road Lines through the petitioner in Criminal Revision No.376 of 2020 filed a petition under Section 457 Cr.P.C. for release of 17814 Kgs. of cashew kernels, which was registered as Misc. Case No.03 of 2020 in G.R. Case No.43 of 2020, in the Court the Special Judge-cum-Sessions Judge, Gajapati, Paralakhemundi and the learned Special Judge-cum-Sessions Judge, Gajapati, Paralakhemundi rejected such prayer of the petitioner assigning the reasons as follows:-

“4. Heard the respected counsels. While sitting over the petition U/s.457 Cr.P.C. for interim release of the article seized liable for confiscation under N.D.P.S. Act wherein the statutory provisions foreclose opportunity for pre-trial release of the goods in the event the person seeking the release of the goods is accused in the case. Though Sec.51 N.D.P.S. Act is applicable in respect of search and seizure as the statute is silent in respect of interim release but those provisions are applicable when the petition is preferred by the accused claiming ownership over the same. In such scenarios while sitting over the 457 Cr.P.C. which statutorily mandates that during an inquiry or trial the magistrate may make such order, if he thinks fit, if the seizure of the property is reported to the magistrate under the provisions of the