Sudip Kumar Routray Vs. State of Oriasa

Decided On : Nov-05-2008

Court : Orissa

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Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  State of Orissa reported in (2004) 27 OCR 17, it was contended by the learned Counsel for the petitioner that even if the motorcycle is liable to be confiscated upon enquiry and trial, it ought to be kept in safe custody in order to ensure maintenance and care. 4. Before deivelng interim custody of the motor cycle to the petitloner, a copy of the Registration Certificate of the motorcycle and at least colour photographs from different angles clearly making the motor cycle identifiable, to be furnished by the petitioner at his expenses, be kept on record.',
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			'judgement' => 'ORDER<p style="text-align: justify;">1. In this revision the petitioner assails the legality of the order dated 4.2.2008 passed by the learned Judge, Special Court, Angul in Special Case No. 8 of 2007 rejecting the application filed under Section 457 of the Code of Criminal Procedure for release of Honda Unicorn motorcycle bearing registration No. OR-19E-1367.</p><p style="text-align: justify;">2. It appears that the petitioner's father accused Pradeep Kumar Routray has been charge sheeted for commission of offence under Section 20(b) of the N.D.P.S. Act for having allegedly found to be .transporting 3 kg. 600 gms. of ganja in an Air bag in the above said motorcycle on 15.12.2007. The petitioner does not appear to have been implicated in any manner in commission of the alleged offence, it was submitted by the learned Counsel for the petitioner that the motorcycle, registration in respect of which stands in the name of the petitioner, having been left lying open and unattended, exposeo to the vagaries of nature, in the police station, shall be subjected to deterioration unless taken care of. It was urged that as the petitioner is entitled to possession thereof, the motorcycle should be released in his interim custody pending disposal of the proceeding before the learned Judge, Special Court. Relying on the decisions of this Court in Abhaya Kumar Satpathy v. State of Orissa reported in (2002) 22 OCR 362; Ganesh Chandra Nayak v. State of Orissa, 2003 (Supp.) OLR 296 reported in , and 2003 (Supp.) OLR 860 Balakrushna Das v. State of Orissa reported in (2004) 27 OCR 17, it was contended by the learned Counsel for the petitioner that even if the motorcycle is liable to be confiscated upon enquiry and trial, it ought to be kept in safe custody in order to ensure maintenance and care.</p><p style="text-align: justify;">3. Having heard from both sides and taking into account the principles indicated in the decisions cited by the learned Counsel for the petitioner and the ratio of the decision of the Hon'ble Supreme Court in Sundarbhai Ambala Deaal v. State of Gujarat reported in (2003)24 OCR 444, learned Judge,Special Court, Angul is directed to release the above said motorcycle in the interim custody of the owner of the vehicle on furnishing property eecurity of Rs. 40,000/- (Rupees lofty thousand) and cash security of Rs. 10,000/ to the satisfaction of that Court subject to further conditions that the petitioner shall undertake</p><p style="text-align: justify;">(i) not to transfer the vehicle and to produce it before the Court or any authority as and when required;</p><p style="text-align: justify;">(ii) not to change colour chassis number or englno number of the motorcycle; and</p><p style="text-align: justify;">(iii) not to allow the vehicle to be used for any unlawful purpose.</p><p style="text-align: justify;">4. Before deivelng interim custody of the motor cycle to the petitloner, a copy of the Registration Certificate of the motorcycle and at least colour photographs from different angles clearly making the motor cycle identifiable, to be furnished by the petitioner at his expenses, be kept on record.</p><p style="text-align: justify;">5. The CRLREV is, accordingly, disposed of.</p><p style="text-align: justify;">6. Urgent certified copy of the order be granted on proper application.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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 -  State of Orissa reported in (2004) 27 OCR 17, it was contended by the learned Counsel for the petitioner that even if the motorcycle is liable to be confiscated upon enquiry and trial, it ought to be kept in safe custody in order to ensure maintenance and care. 4. Before deivelng interim custody of the motor cycle to the petitloner, a copy of the Registration Certificate of the motorcycle and at least colour photographs from different angles clearly making the motor cycle identifiable, to be furnished by the petitioner at his expenses, be kept on record.',
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Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
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			'judge' => ' B.K. Patel, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">1. In this revision the petitioner assails the legality of the order dated 4.2.2008 passed by the learned Judge, Special Court, Angul in Special Case No. 8 of 2007 rejecting the application filed under Section 457 of the Code of Criminal Procedure for release of Honda Unicorn motorcycle bearing registration No. OR-19E-1367.</p><p style="text-align: justify;">2. It appears that the petitioner's father accused Pradeep Kumar Routray has been charge sheeted for commission of offence under Section 20(b) of the N.D.P.S. Act for having allegedly found to be .transporting 3 kg. 600 gms. of ganja in an Air bag in the above said motorcycle on 15.12.2007. The petitioner does not appear to have been implicated in any manner in commission of the alleged offence, it was submitted by the learned Counsel for the petitioner that the motorcycle, registration in respect of which stands in the name of the petitioner, having been left lying open and unattended, exposeo to the vagaries of nature, in the police station, shall be subjected to deterioration unless taken care of. It was urged that as the petitioner is entitled to possession thereof, the motorcycle should be released in his interim custody pending disposal of the proceeding before the learned Judge, Special Court. Relying on the decisions of this Court in Abhaya Kumar Satpathy v. State of Orissa reported in (2002) 22 OCR 362; Ganesh Chandra Nayak v. State of Orissa, 2003 (Supp.) OLR 296 reported in , and 2003 (Supp.) OLR 860 Balakrushna Das v. State of Orissa reported in (2004) 27 OCR 17, it was contended by the learned Counsel for the petitioner that even if the motorcycle is liable to be confiscated upon enquiry and trial, it ought to be kept in safe custody in order to ensure maintenance and care.</p><p style="text-align: justify;">3. Having heard from both sides and taking into account the principles indicated in the decisions cited by the learned Counsel for the petitioner and the ratio of the decision of the Hon'ble Supreme Court in Sundarbhai Ambala Deaal v. State of Gujarat reported in (2003)24 OCR 444, learned Judge,Special Court, Angul is directed to release the above said motorcycle in the interim custody of the owner of the vehicle on furnishing property eecurity of Rs. 40,000/- (Rupees lofty thousand) and cash security of Rs. 10,000/ to the satisfaction of that Court subject to further conditions that the petitioner shall undertake</p><p style="text-align: justify;">(i) not to transfer the vehicle and to produce it before the Court or any authority as and when required;</p><p style="text-align: justify;">(ii) not to change colour chassis number or englno number of the motorcycle; and</p><p style="text-align: justify;">(iii) not to allow the vehicle to be used for any unlawful purpose.</p><p style="text-align: justify;">4. Before deivelng interim custody of the motor cycle to the petitloner, a copy of the Registration Certificate of the motorcycle and at least colour photographs from different angles clearly making the motor cycle identifiable, to be furnished by the petitioner at his expenses, be kept on record.</p><p style="text-align: justify;">5. The CRLREV is, accordingly, disposed of.</p><p style="text-align: justify;">6. Urgent certified copy of the order be granted on proper application.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'PERSON' => array(
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		(int) 1 => 'Kumar Satpathy v. State',
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		(int) 3 => 'Sundarbhai Ambala Deaal',
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	'QUANTITY' => array(
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  State of Orissa reported in (2004) 27 OCR 17, it was contended by the learned Counsel for the petitioner that even if the motorcycle is liable to be confiscated upon enquiry and trial, it ought to be kept in safe custody in order to ensure maintenance and care. 4. Before deivelng interim custody of the motor cycle to the petitloner, a copy of the Registration Certificate of the motorcycle and at least colour photographs from different angles clearly making the motor cycle identifiable, to be furnished by the petitioner at his expenses, be kept on record.',
		'caseanalysis' => null,
		'casesref' => 'Sundarbhai Ambala Deaal v. State of Gujarat;',
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		'counselplain' => '',
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		'court' => 'Orissa',
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		'decidedon' => '2008-11-05',
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		'judge' => ' B.K. Patel, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">1. In this revision the petitioner assails the legality of the order dated 4.2.2008 passed by the learned Judge, Special Court, Angul in Special Case No. 8 of 2007 rejecting the application filed under Section 457 of the Code of Criminal Procedure for release of Honda Unicorn motorcycle bearing registration No. OR-19E-1367.</p><p style="text-align: justify;">2. It appears that the petitioner's father accused Pradeep Kumar Routray has been charge sheeted for commission of offence under Section 20(b) of the N.D.P.S. Act for having allegedly found to be .transporting 3 kg. 600 gms. of ganja in an Air bag in the above said motorcycle on 15.12.2007. The petitioner does not appear to have been implicated in any manner in commission of the alleged offence, it was submitted by the learned Counsel for the petitioner that the motorcycle, registration in respect of which stands in the name of the petitioner, having been left lying open and unattended, exposeo to the vagaries of nature, in the police station, shall be subjected to deterioration unless taken care of. It was urged that as the petitioner is entitled to possession thereof, the motorcycle should be released in his interim custody pending disposal of the proceeding before the learned Judge, Special Court. Relying on the decisions of this Court in Abhaya Kumar Satpathy v. State of Orissa reported in (2002) 22 OCR 362; Ganesh Chandra Nayak v. State of Orissa, 2003 (Supp.) OLR 296 reported in , and 2003 (Supp.) OLR 860 Balakrushna Das v. State of Orissa reported in (2004) 27 OCR 17, it was contended by the learned Counsel for the petitioner that even if the motorcycle is liable to be confiscated upon enquiry and trial, it ought to be kept in safe custody in order to ensure maintenance and care.</p><p style="text-align: justify;">3. Having heard from both sides and taking into account the principles indicated in the decisions cited by the learned Counsel for the petitioner and the ratio of the decision of the Hon'ble Supreme Court in Sundarbhai Ambala Deaal v. State of Gujarat reported in (2003)24 OCR 444, learned Judge,Special Court, Angul is directed to release the above said motorcycle in the interim custody of the owner of the vehicle on furnishing property eecurity of Rs. 40,000/- (Rupees lofty thousand) and cash security of Rs. 10,000/ to the satisfaction of that Court subject to further conditions that the petitioner shall undertake</p><p style="text-align: justify;">(i) not to transfer the vehicle and to produce it before the Court or any authority as and when required;</p><p style="text-align: justify;">(ii) not to change colour chassis number or englno number of the motorcycle; and</p><p style="text-align: justify;">(iii) not to allow the vehicle to be used for any unlawful purpose.</p><p style="text-align: justify;">4. Before deivelng interim custody of the motor cycle to the petitloner, a copy of the Registration Certificate of the motorcycle and at least colour photographs from different angles clearly making the motor cycle identifiable, to be furnished by the petitioner at his expenses, be kept on record.</p><p style="text-align: justify;">5. The CRLREV is, accordingly, disposed of.</p><p style="text-align: justify;">6. Urgent certified copy of the order be granted on proper application.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 457, Section 20(b, the N.D.P.S. Act

CARDINAL: 4.2.2008, 600, 22, 362, 296, 860, 27, 17, 2003)24

ORG: Special Court, Honda Unicorn, Air, Special Court, Court, Supp, Supp, the Hon'ble Supreme Court, OCR 444, Special Court, Court, Court, the Registration Certificate, of.6

WORK_OF_ART: Angul in Special Case

DATE: 2007, 15.12.2007, 2002, 2003, 2003, 2004

PERSON: Kumar Routray, Kumar Satpathy v. State, Chandra Nayak, Sundarbhai Ambala Deaal, purpose.4

QUANTITY: 3 kg

GPE: Abhaya, Orissa, Orissa, Orissa, Gujarat, Angul