Tapas Mandal Vs. State of Orissa

Tapas Mandal vs State of Orissa

Disposition Revision allowed Court Orissa Decided Mar 09, 2005

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Citation: sooperkanoon.com/527270
Court: Orissa High Court
Judge: R.N. Biswal, J.
Decided On: Mar 09, 2005
Case Number: Criminal Revision No. 881 of 2004
Subject: Criminal
Disposition: Revision allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Outcome / disposition: Revision allowed
Acts & sections: Electric Supply line-materials (Unlawful Possession) Act, 1988 - Sections 3, 6(3) and 7; Code of Criminal Procedure (CrPC) , 1973 - Sections 457; Indian Penal Code (IPC) - Sections 34

Parties & Advocates

Appellant / Petitioner

Tapas Mandal

Advocate R.K. Nayak, ;P.C. Jena, ;S.K. Dash and ;S.P. Dash, Advs.

Respondent

State of Orissa

Advocate Addl. Standing Counsel

Legal References

Acts: Electric Supply line-materials (Unlawful Possession) Act, 1988 - Sections 3, 6(3) and 7; Code of Criminal Procedure (CrPC) , 1973 - Sections 457; Indian Penal Code (IPC) - Sections 34
Cases Referred: Kailash Chandra Sahu v. State of Orissa
Reported In: 2005CriLJ2488; 2005(I)OLR571

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 349 holding that this court has held therein that sub-section (3) of section 6 of the act clearly ousts the jurisdiction of the criminal court to deal with the..........the revision petition and impugned rejection order, the petitioner and five others have been arrayed as accused for the offence under section 3 of the electric supply line-materials (unlawful possession) act, 1988 (hereinafter referred to as the act) read with section 34 of i.p.c. in g.r. case no. 184 of 2001 pending before the s.d.j.m. (sadar), cuttack on the allegation that they were found in illegal possession of some bundles of electric wires. the petitioner claiming to be the owner of the said electric wires filed a petition under section 457 of the cr.p.c. for interim release of the same in his favour. the s.d.j.m. (sadar), cuttack rejected the petition relying on the decision 'kailash chandra sahu v. state of orissa' 2001 (20) o.c.r. 349 holding that this court has held therein that sub-section (3) of section 6 of the act clearly ousts the jurisdiction of the criminal court to deal with the property so seized.2. being aggrieved with this order, the petitioner has preferred this revision.sub-section (3) of section 6 of the act reads as follows :'every police officer seizing electric supply-line material in connection with an offence suspected to have been committed under this act shall, notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974) forward a copy of the seizure list to the authorized officer within seventy-two hours from the time of seizure and shall make over to the said authorized officer the seized property including the tools, chains, ropes, vehicles, vessels and other conveyances seized, for the purpose of initiating confiscation proceeding under this act.'3. in the present case i.i.c. of madhupatna police station made the seizure. so learned counsel for the petitioner submitted that as per section 6(3) of the act the i.i.c. of madhupatna police station ought to have produced the seized articles before the authorized officer within 72 hours of seizure but the same having not been done the court below ought.....

Full Judgment

R.N. Biswal, J.

1. In this revision the petitioner has challenged the legality, propriety and correctness of the order dated 9.11.2004 passed by the S.D.J.M. (Sadar), Cuttack in G.R. Case No. 184 of 2001 wherein he rejected the petition filed under Section 457 Cr.P.C. on the ground that he has no jurisdiction to entertain the matter. As found from the revision petition and impugned rejection order, the petitioner and five others have been arrayed as accused for the offence under Section 3 of the Electric Supply line-materials (Unlawful Possession) Act, 1988 (hereinafter referred to as the Act) read with Section 34 of I.P.C. in G.R. Case No. 184 of 2001 pending before the S.D.J.M. (Sadar), Cuttack on the allegation that they were found in illegal possession of some bundles of Electric wires. The petitioner claiming to be the owner of the said electric wires filed a petition under Section 457 of the Cr.P.C. for interim release of the same in his favour. The S.D.J.M. (Sadar), Cuttack rejected the petition relying on the decision 'Kailash Chandra Sahu v. State of Orissa' 2001 (20) O.C.R. 349 holding that this Court has held therein that Sub-section (3) of Section 6 of the Act clearly ousts the jurisdiction of the Criminal Court to deal with the property so seized.

2. Being aggrieved with this order, the petitioner has preferred this revision.

Sub-section (3) of Section 6 of the Act reads as follows :

'Every Police Officer seizing electric supply-line material in connection with an offence suspected to have been committed under this Act shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) forward a copy of the seizure list to the authorized Officer within seventy-two hours from the time of seizure and shall make over to the said Authorized Officer the seized property including the tools, chains, ropes, vehicles, vessels and other conveyances seized, for the purpose of initiating confiscation proceeding under this Act.'

3. In the present case I.I.C. of Madhupatna Police Station made the seizure. So learned counsel for the petitioner submitted that as per Section 6(3) of the Act the I.I.C. of Madhupatna Police station ought to have produced the seized articles before the Authorized Officer within 72 hours of seizure but the same having not been done the Court below ought have allowed the petition under Section 457 Cr.P.C.

4. Once the articles seized in connection with an offence under Section 3 of the Act are produced before the Authorized Officer the Magistrate concerned ceases to have jurisdiction to entertain a petition under Section 457 Cr.P.C. In the present case even though the electric Wires were seized on 3.2.2001, the Authorized Officer has not yet received the same. Had the seized electric Wires produced before the Authorized Officer soon after the seizure, perhaps the confiscation proceeding under Section 7 of the Act would have been completed by this time. At this stage, learned Addl. Standing Counsel submitted that as per provision under Section 6(3) of the Act it was the duty of the I.I.C. Madhupatna P.S. to make over the seized articles to the Authorized Officer. When he has not done so the Authorized Officer cannot be blamed for the same. As found from the impugned order the Authorized Officer was intimated by the I.I.C., Madhupatna Police Station about the seizure of the electric Wires. If the Authorized Officer was reluctant to go to the police station to collect the electric wires he could have requested the I.O. to produce the same before him. When he has not done so, it appears, the Authorized Officer is not interested to initiate a confiscation proceeding. The articles are lying at the police station premises since 3.2.2001. In the decision Kailash Chandra Sahu (supra) since the seizing officer did not take recourse to Sub-section (3) of Section 6 of the Act till 27.1.2000, even though the vehicle was seized on 15.12.2000 this Court directed that if an application was made by the petitioner before the authorized officer for interim release of the vehicle in question he would release the same in his favour.

5. In the case at hand since the I.I.C. of Madhupatna P.S. did not make over the seized articles to the authorized officer as required under Sub-section (3) of Section 6 of the Act nor the authorized officer took pain to collect the same from the P.S. till date the jurisdiction of the S.D.J.M. is not ousted to entertain the petition under Section 457 of Cr.P.C. It appears that the Court below could not follow the spirit of the decision in the case of Kailash Chandra Sahu (Supra).

6. Accordingly the revision is allowed and the impugned order dated 9.11.2004 passed by the S.D.J.M. (Sadar), Cuttack is set aside. The S.D.J.M., (Sadar) Cuttack shall dispose of the petition on its own merit as expeditiously as possible.

Same Court & Year Orissa · 2005 Same Parties Tapas Mandal vs State of Orissa Same Subject Criminal Same Judge R.N. Biswal, J. Acts & Sections Electric Supply line-materials (Unlawful Possession) Act, 198...

Criminal