Judgment:
B.P. Das, J.
1. This revision application Under Section 401, Criminal Procedure Code (for short 'Cr.P.C') is directed against an order passed by the S.D.J.M., Balasore in Misc. Case No.l of 2000 rejecting the application Under Section 457, Cr.P.C. in which prayer was made to release the vehicle (Maruti van) bearing registration No. OR-2A-4762. seized by the Officer-in-charge, Chandipur P.S. vide Chandipur P.S. Case No. 64 of 1999.
2. The brief facts as reveal from the application are that in the night of 5.12.1999 some unknown culprits committed theft of four bundles of electric wire from Fairodori Fuse Call centre. In course of investigation the police seized four bundles of electric wire along with the vehicle in question at Jhagarpadhi Chhak and a proceeding was initiated Under Section 379. I.P.C. read with Section 3 of the Electric Supply-Line Materials (Unlawful Possession) Act, 1988 (for short 'the Act') and the fact of seizure was intimated to the Authorised Officer-cum-Superintending Engineer, Electric Circle, NESCO, Balasore and Chandipur P.S. Case No. 64 of 1999 was registered accordingly on the written report of Junior Engineer, Electrical, dated 7.12.1999. An application was filed before the S.D.J.M., Balasore for release of the said vehicle. While dealing with the application Under Section 457, Cr.P.C, the learned S.D..I.M. held that as the proceeding was initiated Under Sections 6 and 7 of the Act, the Magistrate lacked jurisdiction to release the vehicle Under Section 457. Cr.P.C. The said order is impugned in this application. In the present facts and circumstances, I have to examine whether the S.D.J.M. has jurisdiction to release the vehicle so seized.
3. On perusal of Section 7 of the Act, it reveals that where an Authorised Officer seizes any electric supply-line material or where any such electric supply-line material is produced before him or is made over to him by the police, he shall, if he is satisfied that an offence under the Act has been committed in respect thereof,order confiscation of the electric supply- line material together with all tools, ropes, chains, vehicles, vessels and other conveyances used in committing such offence within the prescribed time.
4. Section 8 of the said Act provides as follows :
'8. Appeal (1) - Any person aggrieved by an order of confiscation made Under Section 7 may within one month from the date of communication to him of such order, appeal to the Member, Administration of the Orissa State Electricity Board, and the appellate authority after giving an opportunity to the appellant to be heard, may pass such order as he may think fit, confirming. modifying, or annulling the order appealed against.
(2) The appellate order shall be final and notwithstanding the result of the criminal case, if any, the confiscation as confirmed by the appellate authority shall not be questioned in any Civil or Criminal Court of law.'
5. In the case at hand a report has come from the police authority on 10.1.2000 being called for by the S.D.J.M. informing the S.D.J.M. that G.R. Case No. 1481 of 1999 was initiated Under Section 379. I.P.C. read with Section 3 of the Act and the said fact of seizure has been intimated to the Authorised Officer-cum-Superintending Engineer, Electrical Circle. NESCO, Balasore on 16.12.1999, on the other hand, the impugned order is silent regarding the fact whether the material has been handed over to the Authorised Officer by the police in terms of the statutory provisions. But learned counsel for the State on instruction submitted that the vehicle as well as the materials were handed over to the Authorised Officer on 27.1.2000.
Learned counsel for the petitioner submitted that there are similar provisions' in the Orissa Forest Act and there are also decisions of this Court wherein it is held that the Magistrate has got jurisdiction to deal with an application for release of the seized vehicle Under Section 457, Cr.P.C. At this stage it is profitable to quote Section 56 of the Orissa Forest Act, which reads follows :
'56. Seizure of property liable to confiscate :
(1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicle or cattle used in committing any such offence may be seized by any forest officer or police officer.
(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, except where the offender agrees in writing to get the offence compounded, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the 'authorised officer') or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made :
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior and the Divisional Forest Officer.xx xx xx'
6. Learned counsel for the petitioner in course of his argument draws my attention to a decision of this Court reported in (2000) 18 OCR 4 (State of Orissa v. Basant Naik and others), wherein the truck in question was seized by the S.I. of Police, Anandpur P.S. on the allegation of commission of an offence under the Forest Act and the information of seizure was. given to the learned Magistrate. While deciding the aforesaid case this Court relied upon a decision reported in 57 (J984) C.L.T. 381 (Sarat Kumar Malu v. The State of Orissa), wherein it is held that when any forest produce together with vehicle used in committing any forest offence i-s seized by any Forest Officer in exercise of his powers Under Section 56 of the Orissa Forest Act, the power to release the vehicle seized lies with the authorities prescribed in the four corners of the provisions of the Forest Act, and not with a Magistrate in exercise of his powers under the provisions of the Code of Criminal Procedure. Reliance is also placed on the decision of this Court reported in (1988) I, OCR. 116 (Srinibas Panda v. State of Orissa) wherein, it was held that when a seizure is made by the police officer and not by a Forest Officer, application for release of the vehicle would lie before the Magistrate and the Magistrate shall exercise his jurisdiction and shall have powers to pass such order, as deemed just and proper, in exercise of power under the provisions of Cr.P.C.
Relying upon the aforesaid decisions, this Court ultimately held that the truck and the Sal logs being seized by the police officer and intimation thereof was given to the Magistrate, the Magistrate had jurisdiction to deal with the application Under Section 457, Cr.P.C. In my considered opinion the provisions of the Act are quite different from the provisions made in the Forest Act. This is a case where the materials were seized by the police and ultimately the materials and the vehicle were made over by the police to the authorised officer and on a report being called for from the O.I.C., Chandipur P.S. by the Magistrate, the factum of seizure was reported.
7. Sub-section (2) of Section 56 of the Orissa Forest Act provides that every seizing officer that means, forest officer or police officer, as soon as may be, shall either produce the property seized before an authorised officer or make a report of such seizure to the Magistrate having jurisdiction to try the offence.
In Section 6 of the Act there is similar provision to inform the Magistrate having jurisdiction to try the offence.
Sec. 6 of the aforesaid Act reads as follows :
'6. Seizure of electric supply-line materials :
(1) When it is reasonably suspected that an offence under this Act has been committed in respect of electric supply-line material, such supply-line materials together with all tools, ropes, chains and any vehicle, vessels or other mode of conveyance used for transport of such supply-line material, may be seized by any officer of the Board, not below the rank of a Subdi visional Officer (Electrical).
(2) Every Officer seizing any electric supply line materials or tools, chains, vehicles or other modes of conveyance under Sub-section (1) shall, within seventy two hours from the time of seizure, produce the property seized before the Authorised Officer of the area. All officers of the Board including the authorised officer when they seized any electric supply line material shall lodge information with the police along with a copy of the seizure list duly countersigned by the Authorised Officer without producing the seized material.
(3) 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 Authorised Officer within seventy- two hours from the time of seizure and shall make over to the said Authorised Officer the seized property including the tools, chains, ropes vehicles, vessels and other conveyances seized for purpose of initiating confiscation proceeding under this Act.
(4) The seizure list prepared of the materials of the tools, chains, vehicles and other modes of conveyance seized in course of search, shall be signed by the officer making the seizure and the witness present. A report of seizure along with a copy of the seizure list so made shall be sent to the nearest Magistrate having jurisdiction to try any offence under this Act.'
8. The contention of the learned counsel for the State is that Sub-section (3) of the Section 6 of the Act ousts the application of the provisions of Code of Criminal Procedure. Hence, the Magistrate has no jurisdiction to entertain an application Under Section 457, Cr.P.C. The application for release of the vehicle can only be entertained within the four corners of the statutory provisions. Under Sub-section (3) of Section 6 of the Act, every police officer seizing electric supply-line materials in connection with an offence suspected to have been committed under this Act shall have to prepare a seizure list and forward copy of the seizure list to the Authorised Officer and shall make over to the said Authorised Officer the seized property including tools, chains, ropes etc. for the purpose of initiating confiscation proceeding under this Act.
9. In my view, there is force in the contention of the learned counsel for the State. Sub-section (3) of Section 6 of the Act provides that the police authorities have no other option than to make over the property seized, to the authorised officer notwithstanding anything contained in the Code of Criminal Procedure. The aforesaid provision clearly ousts the jurisdiction of the Criminal Courts to deal with the property so seized. The impugned order so passed by the learned Magistrate is correct and legal. But it appears from the impugned order that the vehicle was seized on 15.12.1999. by the police authority. Admittedly, on 10.11.2000, a report was produced before the learned Magistrate. The fact of seizure was communicated to the authorised officer on 16.12.1999. But from the CD. so produced before me by the State counsel it reveals that the seized vehicle was handed over to the S.D.O., Electrical Construction, Aradbazar, Balasore on 27.1.2000 by the police on Zimanama. The Magistrate passed the impugned order on 13.1.2000 rejecting the application Under Section 457, Cr.P.C. on which date the vehicle was in the custody of the police authorities, which is in contravention of the mandate of Sub-section (3) of Section 6 of the Act.
10. Learned counsel for the petitioner prays that this aspect should be considered by this Court and the vehicle be released on such conditions as this Court deems fit and proper. While I have no hesitation to hold that the material was seized under the provisions of the Act together with the vehicle by a police officer, the power to release the property lies which the authorities to be dealt with within the four corners of the said Act. But considering the peculiar facts and circumstances of this particular case where the seizing officer has not taken recourse to Sub-section (3) of Section 6 of the Act till 27.1.2000,1 direct that if an application is made by the petitioner before the Authorised Officer for interim release of the vehicle in question and if the confiscation proceeding is still pending, he shall release the vehicle, subject to the conditions that the owner of the vehicle shall furnish a cash security to the tune of Rs. 30.000/- (rupees thirty thousand) and a property security of Rs. 1,00,000/- (rupees one lakh) with an undertaking that he shall not sell or transfer the vehicle during pendency of the confiscation proceeding and shall produce the same as and when required by the Authorised Officer.
The Criminal Revision is disposed of accordingly.