GANGADHAR SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is preferred against the order dated 18.06.2011 passed by the learned Authorized Officer, Special Court, Bhubaneswar in Confiscation Case No.3 of 2011 arising out of Cuttack Vigilance P.S. Case No.10 of 1994 rejecting the prayer of the appellant to drop the Confiscation proceeding.

(2.) THE fact as borne out from the appeal memo and the submission made by learned counsel for the appellant, necessary for disposal of the appeal are that on the acquisition of possession of disproportionate properties to his known sources of income of the tune of Rs.5,02,550.86 raise during the period 5.8.1971 to 15.3.1984 by resorting to corrupt means, Cuttack Vigilance P.S. Case No.10 of 1994 was registered against the appellant. After completion of investigation, charge sheet was submitted against him for the offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short 'P.C Act') before the Special Judge (Vigilance) Bhubaneswar. In exercise of power conferred under Section 5 of the Orissa Special Courts Act, 2006 (hereinafter referred as "Act, 2006"), the State Govt. in their Home Department made a declaration on 11.7.2008 published in Extra Ordinary Gazette on 15.7.2008 that while that while holding high public office in the State of Orissa, i.e., Executive Engineer, CADA, Bhubaneswar, the appellant committed an offence under Section 5(i) (e) of Prevention of Corruption Act, 1947 and on scrutiny of relevant materials available on record, prima facie, it was found that he accumulated properties disproportionate to his known sources of income by resorting to corrupt means and that the offence would be dealt with under the Act, 2006. Pursuant to such notification, the case of the appellant was transferred from the Special Court (Vigilance) Bhubaneswar to the Special Court, Bhubaneswar which was registered as T.R. Case No.13 of .2008. Then the Investigating Officer submitted an application under Section 13(1) of the Act, 2006 before the Authorized officer, Special Courts, Bhubaneswar for confiscation of the assets and properties of the appellant, his wife sons, daughter and sister and accordingly Confiscation case No.3 of 2011 was registered, wherein the appellant was summoned to appear and filed his show cause.

(3.) LEARNED counsel appearing for the appellant submits that the appellant was working as Executive Engineer, CADA, Division No.1 Bhubaneswar from 3.7.1980 to 1.7.1993 and thereafter he was put under suspension till end of the check period. Prior to 3.7.1980 he did not hold any high public office. Thus the declaration made by the Govt. under Section 5 (1) of the Act, 2006 being illegal, the proceeding before learned Authorized Officer is not maintainable under law. He further submits that Section 4 of the Act, 2006 provides that the Special Court shall take cognizance and try such cases as are instituted before it or transferred to it under Section 10 of the said Act. In other words, the State Govt. can only issue a declaration in those cases as would be covered under Section 4 of the Act. But the case which had already been instituted in the Court of Special Judge (Vigilance) Bhubaneswar under the provision of the P.C. Act, 1988, the issuance of the declaration made under Section 5(1) of the Act, 2006 is not maintainable. Learned counsel for the appellant further submits that criminal law is never retrospective and that in the present case the alleged offence having been committed prior to coming into force of the Act, 2006, the case of the appellant cannot be covered under the provisions of the said Act. At last learned counsel for the appellant submits that the property in question being under the custody of the trial Court, initiation of the confiscation proceeding before the authorized officer is not permissible, particularly when the trial of the case is sub -judice.