Allowed

Bishnu Priya Panda@Bishnu Priya Nanda v. State of Odisha

Orissa HC2 Dec 2021CRLREV/433/2021

Case brief

AI extract

What is this about?

This order allowed an application under Sections 451 and 457 CrPC to release two seized mobile phones belonging to the petitioner, who is the wife of an accused but not chargesheeted, subject to conditions including furnishing a surety and undertaking to produce the phones during trial.

What did the court decide?

Release of seized Samsung J6 mobile phones bearing specified IMEI numbers in favour of the petitioner subject to furnishing surety of Rs. 10,000/ and giving undertakings.

Bishnu Priya Panda@Bishnu Priya Nanda Vs… — Pension and Retirement Benefits | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLREV No. 433 of 2021

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Bishnu Priya Panda @ Bishnu Priya Nanda

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…. Petitioner

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Mr. Anirudha Das, Advocate

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Versus

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State of Odisha

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…. Opposite Party

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Mr. K.K. Nayak, A.S.C.

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CORAM:

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JUSTICE SAVITRI RATHO

ORDER

Order No.

02.12.2021

1. Heard Mr. Anirudha Das, learned counsel for the petitioner and Mr. K.K. Nayak, learned Addl. Standing Counsel for the State through hybrid mode.

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This is an application under Section 401 read with Section 397 of Cr.P.C. challenging the order dated 14.09.2021 passed in Criminal Misc. Case No.15 of 2021 arising out of T.R. No.49 of 2021 (Special G.R. Case No.126 of 2020) pending before the learned Sessions Judge -cum- Special Judge, Puri rejecting the application of the petitioner filed under Section 457 of the Code of Criminal Procedure refusing to release the Samsung J6 Mobile Phone bearing IMEI No. (1) 358461093779470 and IMEI No. (1) 358462093779478 registered in her name which had been seized in Special G.R. Case No.126 of 2020 registered for commission of offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act. The prayer of the petitioner has been rejected on the primary ground that the phone was seized from the accused persons alongwith the contraband articles.

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The prosecution in brief is that on 15.10.2020 at about 9.00 a.m. while the S.I. of Police of Town Police Station , along with his staff were conducting patrolling duty , they raided the house of the accused persons and recovered three plastic jerry bags containing total quantity of 32 kgs. 630 grams ganja and as the accused persons failed to produce any authority in support of such possession, the I.O. seized the same along with the mobile phones used for commission of the alleged offence, from the possession of the accused persons and on his information, a case was registered for commission of offences punishable under Section-20(b)(ii)(C) of the NDPS Act against one Sarat Kumar panda, Jagannath Panda, Laxminarayan Nanda and Jayakrushna Panda. After completion of investigation, chargesheet has been filed.

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Mr. A. Das, learned counsel for the petitioner submits that the petitioner is the wife of accused Laxminarayan Nanda and she has not been chargesheeted in the case. Samsung J6 Mobile Phone bearing IMEI No. (1) 358461093779470 and IMEI No. (1) 358462093779478 has been seized since 15.10.2020 and the petitioner is owner of this phone Samsung J6 Mobile Phone. He files a memo along with copy of invoice which is kept on record. Learned counsel for the petitioner further submits that petitioner is ready and willing to accept any terms and conditions that may be imposed for release of the mobile phones. The learned counsel for the petitioner further states that the screen and battery of the mobile phone are likely to be damaged as the phone is lying idle for so long and no useful purpose will be served by detaining it in custody. His final submission is that the ground of rejection is perverse and liable for interference. He relies on the decisions in case of Sunderbhai Ambala Desai vs. State of Gujarat reported in (2003) 24 OCR (SC) 444 and General Insurance Council and others vs. State of Andhra

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Pradesh and others reported in 2010 ( 46) OCR (SC) 437 to submit that the mobile phone be released in her favour.

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Mr. K.K. Nayak, learned Addl. Standing Counsel objected to the release stating that the mobile phone was used during commission of the offence and trial is yet to start.

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Section 60 of the NDPS Act provides for confiscation of illicit drugs, substances, plants, materials apparatus, utensils articles and conveyances in respect of which or by means of which such offence has been committed. A detailed procedure for making confiscation under Section 60 of the NDPS Act has been provided in Section 63 of the NDPS Act. Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Section 36-C. of the NDPS Act has interalia made the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) applicable to the proceedings before a Special Court and this is of course subject to the specific exceptions contained in the Act .

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The Supreme Court in Sunderbhai Ambalal Desai (supra)

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has laid down the parameters for considering an application for interim custody expeditiously so that the owner of the article would not suffer because of it lying unused or by its misappropriation and court or the police would not be required to keep the vehicle in safe custody. It has observed as under:-

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“7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

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1.Owner of the article would not suffer because of its remaining unused or by its misappropriation;

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2. Court or the police would not be required to keep the vehicle in safe custody;

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3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

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4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.”

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In the case of General Insurance (supra), the petitioner therein had approached the Court with the submission that despite the directions passed by this Court in Sunderbhai Ambalal Desai ( supra), as also in W.P.(C) No. 282 of 2007 titled General Insurance Council and Others vs. State of Andhra Pradesh and Others, decided on 09.07.2007 , there has not been full and complete compliance of the same. Therefore, they have once again approached this Court for issuing further directions so that national waste with regard to the seized vehicles involved in commission of various offences may not become junk and their road worthiness be maintained , as by the time the recovered vehicles are released, the same are reduced to junk at the respective police stations.

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This Court in the case of Balabhadra Nayak vs. State of Orissa : (2013) 54 Orissa Criminal Reports 893 : 2012 SCC OnLine Ori 312 : 2013 Cri LJ 3972 has observed as follows while allowing an application for release of a motorcycle of the petitioner who was not an accused .

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…“8. Section 60(3) of the NDPS Act is no bar for interim release of the vehicle as the said provision is only substantive

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in nature and speaks of the liability of the vehicle to be confiscated where the owner fails to prove that it was used without his knowledge or connivance or the knowledge and connivance of his agent in charge of the vehicle.”..

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This Court in Kishore Kumar Choudhury vs. State Of Orissa: (2017) 66 OCR 1124 :-

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….“A cursory reading of the aforesaid provision in Section 51 of the Act makes it clear that the provisions of the Cr.P.C. will not apply if they are inconsistent with the provision of the Act in respect of warrants issued, arrests, searches and seizures made under the Act. There is provision in Section 55 of the Act interdicting an Officer-in-charge of a Police Station to take charge of and keep in Safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of the Police Station and which may be delivered to him. There is no express provision in the act for release of the property like vehicle or conveyance in interim custody of a rightful owner. Provision contained in Section 51 of the Act does not expressly bar operation of the provision of the Cr.P.C. if they are not inconsistent with the provision of the Act. Taking into consideration the stage of the confiscation proceeding in the scheme of the trial as provided under Section 60(3) o f the Act, safe custody of the articles seized and delivered to a police officer under Section 55 of the Act pending order of the Magistrate, absence of any specific provision in the Act for release of valuable articles like vehicle etc. in the interim custody of the registered owner and especially in view of the mandate for confiscation of a vehicle or conveyance after the trial is concluded and further fact that

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the commercial price of such an article is to be protected in the interest of justice, I have no hesitation to hold that operation of Sections 451 and 457 Cr.P.C. is not specifically excluded by Section 51 of the Act. In my view, I am supported by the decisions rendered in the case of B.S. Rawant vs. Shaikh Abdul Karim, 1989 Criminal Law Journal 1998; Madanlal vs. State NCT of Delhi, 2002 Criminal Law Journal 2605; and Sujeet Kumar Biswas vs. State of U.P. 2001 Criminal Law Journal 4431 .”…

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In the case of Basanta Kumar Behera vs. State of Orissa : reported in (2013) 54 OCR 876 , this court while analyzing Section 63 of the NDPS Act , has held as follows:-

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…" From the above provision, it is clear that a vehicle used in the commission of the offence is liable for confiscation, which means that on proof of commission of offence and that the vehicle was used in such commission, at the conclusion of trial, the vehicle in question shall be confiscated. The confiscation of a vehicle ensures to the benefit of the State. If not confiscated, the property in question has to be returned or released in favour of the rightful owner entitled for possession or to the person from whom it was seized. In case the property is not released and the trial continues for long time, its value gets diminished due to damage caused by exposure to sun and rain and in that even whether it is confiscated or not confiscated, no body gains anything and, on the contrary, in the event of confiscation, the State would stand to lose and in the event of no confiscation, the owner will be the loser. This is the reason for which in the case of Sunderbhai Ambala Desai -Vrs.- State of Gujurat, (2003) 24 OCR (SC) 444 , the Hon'ble Supreme Court has stipulated

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guidelines for prompt interim release of the vehicle seized in connection with the commission of an offence.

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No provision in the N.D.P.S. Act has been brought to the notice of the Court which bars interim release of the vehicle where the owner has been implicated in the offence as one of the accused ."

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From a reading of the relevant provisions and the aforesaid decisions, it is apparent that the provisions contained in Sections 451 and 457 of the Cr.P.C. providing for interim custody in so far as they relate to passing of order for custody of conveyance or property pending conclusion of trial, are not inconsistent with any of the provisions including Sections 60(3) and 63 of the NDPS Act nor has their application been excluded by any of the provisions of the NDPS Act. Question of confiscation will arise at the end of the trial. It can therefore safely be concluded that in appropriate cases, order for its release of conveyances and property pending conclusion of trial can be made under Section 451 and Section 457 of the Cr.P.C. No useful purpose will therefore be served by keeping the article in question in the Police malkhana as because even if it has to be ultimately confiscated, its value will have plummeted by then.

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In view of the above, I am inclined to set aside the order dated 14.09.2021 passed by the learned Sessions Judge -cum- Special Judge, Puri and I direct release of the mobile phone i.e. Samsung J6 Mobile Phone bearing IMEI No. (1) 358461093779470 and IMEI No. (1) 358462093779478 in favour of the petitioner subject to the following conditions:-

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