ASWINI KUMAR PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Revision is directed against the order dated 4.11.2004 passed by the S.D.J.M., Bonai in Misc. Case No. 34 of 2004 arising out of G.R. Case No. 299 of 2004 wherein he rejected the petition filed under Section 457 Cr.P.C. by the petitioner for interim release of the tipper bearing registration No. OR -09 -D -9623 in his favour.

(2.) THE factual matrix as found from the F.I.R., impugned order and the Revision petition leading to filing of this Revision in succinct is that on 11.9.2004 at about 3.00 P.M. while the C.I. of police of Karua Circle and his staff were performing patrol duty at Dengula -Kusumdihi road, receiving reliable information ' that manganese ore being illegally raised from Kandarkala hill were transported, they proceeded towards that hill. On the way the police personnel seeing the aforesaid tipper loaded with manganese ore coming along Bandala Panchayat road towards Dengula, intercepted it. In the meantime out of five occupants of the tipper, four including the driver managed to escape. However, the owner of the said vehicle was caught red -handed and on interrogation, admitted to have raised the manganese ore without any valid authority and disclosed the names of the occupants of the tipper who fled away at the sight of the police personnel. So the C.I. of police, Karua Circle drew up plain paper F.I.R., arrested the accused -petitioner (owner of the tipper) for the offence under Sections 379/411/34 I.P.C. read with Section 12 of the O.M.P.T.U. Act, 1989 and on return to Police Station with the accused -petitioner, seized the manganese ore along with the tipper and drew up formal F.I.R. On weighment, the manganese ore were found to be 6.600 M.Ts. worth Rs. 40,000/ -. He reported about the seizure of manganese ore along with the tipper to the S.D.J.M., Bonai. Accordingly G.R. Case No. 299 of 2004 was registered. In the meantime the Forester of Dengula reseized the manganese ore along with the tipper under Sections 37 and 56 of the Orissa Forest Act, 1972 and produced the same before the Authorized Officer -cum -D.F.O., Bonai for initiating a proceeding under Section 56 of the Orissa Forest Act. This fact was intimated to the S.D.J.M., Bonai.

(3.) LEARNED counsel for the petitioner submitted that admittedly the manganese ore along with the tipper were seized by the police personnel and the fact of seizure was intimated to the learned S.D.J.M., Bonai. So even though the said vehicle was produced before the Authorized Officer -cum -D.F.O., it was the S.D.J.M. who ought to have entertained the petition and not the Authorized Officer. In support of his submission he relied upon the decisions' in State of Orissa v. Basant Nayak and Ors.; (2000) 18 OCR 4, Sudhanshu Kumar Das v. State of Orissa; (2000) 19 OCR 63 and Smt. Jasoda Das v. State of Orissa; 2004 (1) OLR 38. In contra learned Additional Standing Counsel submitted that the vehicle in question having been re -seized by a forest official, the aforesaid decisions would not be applicable to the present case. At this stage learned counsel for the petitioner again submitted that even if it was held that the vehicle was seized by a forest official, still then the S.D.J.M. did not cease to have authority to deliver the vehicle in interim custody of the owner thereof. In support of his submission he relied upon the decision in Baikuntha Bihari Mohapatra v. State of Orissa; 2001 CRI.L.J. 4151 wherein this Court has held that even if a vehicle is seized by a forest official and the seizure is reported to the Magistrate and the case has been initiated for commission of a forest offence, the Magistrate has power under Section 457 Cr.P.C. to release the vehicle. This decision was rendered in connection with seizure of one Indica car under Section 39 of the Wild Life Protection Act and not under Section 56 of the Orissa Forest Act. Section 39 of the Wild Life Protection Act lays down that when it is found that a vehicle has been used for committing an offence under the Act and has been seized under the provisions of the said Act, the same shall be the property of the State Government. In this decision the vehicle was not produced before any Forest Officer for confiscation. So strictly speaking the said decision is not applicable to the present case.