BIRENDRA MOHAN GOUDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order dated 28.1.2006 passed by the SDJM, Sambalpur in CMA No. 18 of 2006 arising out of 2(b) CC No. 1 of 2006 is assailed in this case by the petitioner.

(2.) The moot question that needs determination in this case is whether a vehicle seized for alleged commission of an offence under the Wild Life Protection (Amendment) Act, 2002 (hereinafter referred to as the Act') can be released in the Zima of the owner thereof pending final decision in the case. In the present case a Maruti Esteem car bearing registration number OR-05-N- 9239 was seized by the Forest Range Officer, Town Range, Sambalpur for alleged commission of offence in contravention of Section 9 read with Sections 2(20)/39/40/51/ (1) of the Act. The fact of such seizure was reported to the SDJM, Sambalpur on the basis of which the aforesaid complaint case was registered. The learned SDJM on being prima facie satisfied about commission of the alleged offences has taken cognizance thereof. The petitioner claiming to be the^ owner of the said car filed a petition before the SDJM under Section 457 Cr.PC for releasing the said car in his Zima. It was averred in the said petition that the petitioner had absolutely no knowledge about use of the said car in commission of the alleged crime. In fact the driver without the authority of the petitioner had taken the said car on 10.1.2006 and as he did not return for a long time, apprehending any untoward incident the petitioner enquired about him and noticed that the car had been seized by some Forest officials. Learned SDJM relying upon the provision of Section 39(d) of the Act which stipulates that any vehicle, vessel, weapon, trap or tools used for commission of offence and seized under the provision of the said Act becomes a Government property, rejected the said petition filed by the petitioner.

(3.) Mr. Nayak, learned Counsel for the petitioner, relying upon a decision of this Court reported in Baikuntha.Bihari Mohapatra v. State of Orissa submitted that a Magistrate has the power to entertain a petition filed under Section 457 Cr.PC and in a given case to release any vehicle or property seized for an interim period. He further submitted that the facts of Baikuntha Bihari case (supra) are identically same as the facts of the present case and, as such, the learned SDJM acted illegally and with material irregularity in rejecting the petition filed by the petitioner under Section 457 Cr.PC on the ground that Section 39(d) of the Act is a bar for that.