Full Judgment
R.N. Biswal, J.
1. This revision has been preferred against the order dated 2.3.2005 passed by the learned J.M.F.C., Barbil in C.M.C. No. 33 of 2005 arising out of G.R. Case No. 32 of 2005 wherein he rejected the petition filed under Section 457, Cr.P.C. by the petitioner holding that he lacked jurisdiction to release the tipper bearing Registration No. OR-09C-9111 in his interim custody.
2. A nub of the facts leading to filing of this revision are that on 22.1.2005 during night hours while the aforesaid vehicle was being used in transportation of 15 metric tons of iron ores from Karakhandra Jungle, the S.I. of Police, Barbil Police Station intercepted it. On demand when the driver failed to produce any authority for transportation of the said iron ores, the S.I. seized the same alongwith the tipper and registered P.S. Case No. 12 dated 22.1.2005 for the offence under Sections 379/411/34, IPC read with Section 12 of the Orissa Minerals (Prevention of Theft, Smuggling and Other Unlawful Activities) Act (hereinafter referred to as 'the Act'), giving rise to the aforesaid G.R. Case.
3. During pendency of the said case, the petitioner, claiming himself to be the owner of the tipper, filed a petition under Section 457, Cr.P.C. before the J.M.F.C., Barbil with a prayer to release it in his interim custody. The Magistrate rejected the petition since by the time of passing the impugned order, the vehicle had already been handed over to the Deputy Director of Mines, Joda (Competent Authority) for necessary action at his end and as such it was no more there at the P.S. and because of the provision of confiscation contained under Section 16 of the Act.
Being aggrieved with the said order, the petitioner has preferred this Criminal revision.
4. Learned counsel appearing for the petitioner submitted that the application under Section 457, Cr.P.C. was filed before the learned J.M.F.C, Barbil on 2.2.2005 when the vehicle was very much lying at Barbil P.S. premises. Instead of releasing it in interim custody of the petitioner the Magistrate directed the S.I. of Police, on 28.2.2005 to hand over it to the Deputy Director of Mines, Joda which is illegal.
5. In this context it will be profitable to quote Sub- sections (1), (2) and (3) of Section 16 of the Act, which read as follows :
'16. Seizure of property liable to confiscation -
(1) When there is reason to believe that an offence has been committed in respect of any mineral, such mineral, together with all tools, vehicles or other conveyances used in committing any such offence may be seized by an officer authorised by the Government in that behalf (hereinafter referred to as the authorised officer) or a Police Officer.
(2) Every officer seizing any property under this section shall place on such property a mark in such manner as may be prescribed, indicating that the same has been so seized and shall as may be, except where the offender agrees in writing to get the offence compounded, either produce the property seized before the competent authority 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.
(3) Where any mineral seized under Sub-section (1), produced before the competent authority under Sub-section (2) and he is satisfied that an offence has been committed in respect thereof, he may order confiscation of the mineral so seized and produced, together with tools, vehicles or other conveyances used in committing such offence.'
6. So, as per Sub-section (1) of Section 16 of the said Act if there is reason to believe that any offence has been committed in respect of any mineral an Authorised Officer or a Police Officer can seize the minerals together with the vehicle, tools etc. used for commission of the offence. As per Sub- section (2) where the offence is not compounded the officer seizing the minerals and the vehicle, tools etc. used for commission of the offence shall either produce the same before the competent authority or make a report of such seizure to the Magistrate having jurisdiction to try the offence. If the minerals alongwith the vehicle or tools etc. seized are produced before the competent authority and he is satisfied that an offence has been committed in respect thereof he may order for confiscation of the same under Sub-section (3) of Section 16 of the Act. So, the authorised officer or police officer as the case may be seizing the mineral, vehicle and tools etc. is not bound to produce the same before the competent authority. He may either produce the same before him or report about the seizure to the Magistrate having jurisdiction to try the offence.
7. In the case at hand, as it appears after seizure of the minerals alongwith the tipper the S.I. of Police reported about it to the J.M.F.C., Barbil. He did not prefer to produce the seized properties before the competent authority (Deputy Director of Mines, Joda). So, the J.M.F.C. ought not to have ordered him to hand over the said property to the competent authority after 22 days of filing of the petition under Section 457, Cr.P.C. As such, the said order being illegal on the very face of it, deserves to be set aside. Accordingly, order dated 28.2.2005 of the J.M.F.C., Barbil directing the S.I. of Police, Barbil to hand over the seized properties to the Deputy Director of Mines, Joda is hereby set aside.
8. Learned Addl. Standing Counsel submitted that the competent authority appointed under Section 5 of the Act alone is authorised under Section 17 of the said Act to release any tools, vehicle or other conveyance seized, in interim custody of the owner thereof. The Criminal Court has no such authority.
Section 17 of the Act reads as follows :
Power to release property seized on bond - The competent authority, who has seized any tools, vehicles or other conveyances under Section 16 and where a report of such seizure has been made to the Magistrate under Sub-section (2) of that section, may release the same on the execution by the owner thereof a bond for production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of such seizure has been made.
9. As per Section 2 (a) 'competent authority' means a competent authority appointed under Section 5 of the Act. In exercise of the power under Section 5 of the Act the Government of Orissa appointed some officers of the Department of Steel and Mines on 10 November 1998 vide S.R.O. No. 699/98. The said officers are not competent to seize tools, vehicle etc. under Section 16 of the Act. As mentioned earlier an authorised officer or a police officer alone is competent authority to seize those properties under that provision. So, in my opinion 'competent authority' under Section 17 of the Act would mean authorised officer or police officer as the case may be and not the competent authority appointed under Section 5 of the Act. Where an authorised officer or a police officer has seized any tool, vehicle or other conveyance under Section 16 of the Act and reported about such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made may release the same in favour of the owner thereof on execution of a bond for its production before the Magistrate as and when required.
10. Sections 19 and 20 of the Act read as follows :
'19. Action after seizure - Upon receipt of any report under Sub-section (2) of Section 16, the Magistrate shall except where the offence has been compounded, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.
20. Minerals, tools, etc. liable to confiscate by Courts -The mineral which are the property of Government and in respect of which an offence has been committed and all tools, vehicles and other conveyances used in committing the offence, shall be liable to confiscation unless an order of confiscation has already been passed in respect thereof under Section 16.'
11. A combined reading of the aforesaid two provisions shows that the Magistrate has power to pass order for disposal as well as confiscation of the properties including vehicles seized under the Act. As discussed earlier a police officer or an authorised officer as the case may be can release tools, vehicles or conveyances in interim custody of the owner thereof on execution of a bond for production of the same as and when required, before the Magistrate. Under Section 102, Cr.P.C. a police officer has also similar power of release, still then Section 457 of the said Code authorises the Criminal Courts to release the property seized, in the interim custody of the owner. So, the provision under Section 17 of the Act is not inconsistent with the provision contained under Section 457 of Cr.P.C. Both can operate side by side particularly because of the provisions contained under Sections 19 and 20 of the Act. Under such situation it is held that where a police officer seizes any property and makes a report of such seizure to the Magistrate having jurisdiction to try the offence, in connection with which the property is seized under Section 16 of the Act, the Magistrate can release the said property in interim custody of the owner thereof. So, the finding of the Court below that he lacked jurisdiction to entertain the petition under Section 457 of Cr.P.C. because of the provision of confiscation contained under Section 16 of the Act is incorrect and accordingly, the same is set aside.
12. Learned counsel for the petitioner submitted that the petitioner has filed an affidavit before this Court inter alia stating therein that the seized vehicle had not been physically handed over to the competent authority till 11.4.2005. According to him most likely it has not yet been handed over to it. As per the affidavit, the vehicle has not been handed over till 11.4.2005. The possibility that it has been handed over to the competent authority in the meantime cannot be ruled out. If so, the J.M.F.C., Barbil shall direct the O.I.C. of Joda Police Station to bring it to his (O.I.C. of Joda Police Station) custody within shortest possible time to be fixed by him at the cost of the petitioner. The J.M.F.C., Barbil shall release the tipper bearing registration No. OR-09C-9111 in interim custody of the petitioner, if he is satisfied that the petitioner is the owner thereof on suitable terms and conditions, as would be deemed just and proper, in an early date.
Accordingly the revision is allowed.