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TMI Blog2024 (3) TMI 1420X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the police upon seizure of property. The first sub-Section provides whenever the seizure of the property is reported to a Magistrate and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may pass such order as he thinks fit respecting the disposal or delivery of such property to the person entitled to the possession thereof, and if such person cannot be ascertained, respecting the custody and production of such property. A duty is cast upon the Magistrate to pass necessary orders once the property is seized and reported to such Magistrate. Moreover, discretion has been vested with the Magistrate for disposal of such property or delivery of such property to the person entitled to the possession thereof. If the owner of the property is known, then the order shall be passed with regard to the disposal of such property and if the owner is unknown, then such order shall be passed with regard to the custody and production of such property. In the instant case, since the owner of the property is known, the Magistrate is duty bound to pass an order with respect to the disposal of such property or delivery of such property to the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olving offence under the provisions of the NDPS Act. Therefore, any property/ vehicle seized in connection with such cases can very well be dealt with by the trial court by resorting to the provisions contained under Sections 451 and 457 of the Cr.P.C. Conditions imposed by the learned trial court while releasing the vessel in question - HELD THAT:- As to the value of the vessel, it is no doubt a difficult proposition to accurately assess the exact value of the vessel involved in the present case. Keeping in view the law involved through various judgments of the Hon'ble Supreme Court as well as this Court, the learned trial court while directing interim release of the vehicle/ property is duty bound to ensure that while taking on Zima, the person concerned secures the property/ vehicle/ vessel in question and further gives an undertaking that he shall not sell, transfer, alienate or part with possession of such property till conclusion of the trial and shall further give an undertaking to the effect that he shall produce such property/ vehicle/ vessel before the trial court as and when required by the trial court within a reasonable period of time. Furthermore, the learned Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g CRLMC No.441 of 2024 has been filed by the Petitioner, i.e. the owner of the Shipping Company, by invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. In such application the Petitioner, being aggrieved by a part of the order dated 12.02.2024 passed by the learned Special Judge, Kujang in Misc. Case No.02 of 2024 arising out of Case No.Spl. G.R. (N) 65 of 2023, although the Petitioner does not challenge the order dated 12.02.2024 in toto on merits, the Petitioner has approached this Court seeking partial modification of order dated 12.02.2024. However, the entire endeavour of the learned counsel appearing for the Petitioner is directed towards modification of order dated 12.02.2024 specifically, towards reducing the quantum of the Bank Guarantee as well as Indemnity Bond as has been directed by the learned Special Judge, Kujang. 2. Similarly, the Union of India has approached this Court by filing CRLREV No.93 of 2024 by invoking the jurisdiction of this Court under Section 401 Cr.P.C. read with Section 397 of Cr.P.C., 1973. The Union of India represented by the Superintendent, Customs (Preventive) Commissionerate, Bhubaneswar has prayed for quashing of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing was concluded and judgment was reserved. Order No.10, dated 15.05.2024 reveals that when the matter was reserved for judgment, a mention was made before the learned Coordinate Bench on 09.05.2024 requesting for early pronouncement of the judgment. The same further reveals that one Mr. Lue Manh Chang, purported to be an official of the Petitioner company, has addressed a letter to this Court. Finally, taking serious note of the language used in such letter, the learned Coordinate Bench recused itself from the present case and the Registry was directed to place the matter before the Hon'ble Chief Justice for necessary orders. Thereafter, the matter was placed before this Bench with the consent and permission of the Hon'ble Chief Justice of the Orissa High Court on 26.11.2024. 5. With the regard to the preliminary objection raised by learned D.S.G.I. representing the Union of India, that no opportunity of hearing was provided to the Union of India while passing order dated 12.02.2024 by the learned Additional District & Sessions Judge, Kujang and considering the seriousness of the allegation made by Mr. D.R. Bhokta, learned C.G.C. which has been taken note of by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of the present case in short. The present matter involves a vessel, namely M.V. DEBI, which was under charter agreement with charter DAVA and was on a Voyage from Gresik Port, Indonesia to Paradeep Port, India. The vessel reached at Paradeep on 29.11.2023 and commenced loading of cargo on 30.11.2023 and was supposed to discharge to Fredericia Port, Denmark. During the process of loading of cargo, a malfunctioning of the vessel was detected i.e. an oil leakage on crane no. 3 of the vessel. As a result, the master of the vessel sent the Chief Officer as well as the second engineer to inspect it. During such inspection, it was found that some strange packets were present. Further, similar packets were also detected on crane no.2 of the vessel. After detection of the suspicious packets on the crane of the vessel, the master of the vessel immediately sent a mail to the charter agent and also informed the Govt. authorities about the incident through mail. Thereafter, the Paradeep police station informed about the incident to the offices of Paradeep Custom Division. Basing upon such information, the offices of Paradeep Custom Division conducted a search and seizure in the vessel. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Although the vessel was detained following discovery of suspicious materials on-board the ship, the Petitioner argued that the vessel owner and the crew have no involvement in the recovery of alleged contraband articles from the above named ship. Moreover, the present application has been filed specifically challenging the conditions imposed by the learned Additional District & Sessions Judge, Kujang while directing the interim release of the vehicle. On the contrary, the Union of India has challenged the interim release of the vehicle by the learned court below vide order dated 12.02.2024. 10. Heard Shri Prateik Parija, learned counsel appearing for the Petitioner in CRLMC No.441 of 2024 and Shri P.K. Parhi, learned D.S.G.I. along with Mr. D.R. Bhokta, learned C.G.C. for the Union of India. Similarly, Shri P.K.Parhi, learned D.S.G.I. along with Mr. D.R. Bhokta, learned C.G.C. advanced their argument on behalf of the Petitioner in CRLREV No.93 of 2024 whereas Mr. Parija, learned counsel defended the impugned order in the above noted CRLREV. Perused the materials on record. 11. Mr. Parija, learned counsel for the Petitioner, raised the following major grounds - recorded below in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence cannot be destroyed. VII. The Petitioner being a Vietnamese Company is having no direct banking relations with India. Thus, securing a Bank Guarantee in India through a Nationalized Indian Bank would be highly inconvenient for the Petitioner. VIII. The Petitioner-Company is ready and willing to furnish an undertaking to the extent that the status, condition or ownership of the vehicle shall remain unchanged by the Petitioner during the trial. Therefore, the apprehension of the Opposite Parties with regard to disposal of the vessel or change of ownership holds no water. 12. On the legal aspects of the matter the following points were advanced by the learned counsel appearing for the Petitioner:- I. Neither the owners of the vessel nor its crew members had any knowledge about the contraband articles on-board the vessel or that they are in anyway involved in the trafficking of such contraband articles. Even though such contraband articles were detected while repairing crane no. 3 of the vessel, such fact was intimated to the authorities by the master of the vessel. Moreover, the packets containing the contraband articles were kept in a concealed manner in an inaccessible ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are still under suspicion as they had access to the crime scene on-board the vessel during their routine work and that some of the deleted data from their mobile phones have not been recovered as of now. The note of submission submitted by the learned D.S.G.I, which has been submitted under the signature of Assistant Commissioner Customs (Prev.) Commissionerate, Bhubaneswar, supports the aforesaid contention of the learned D.S.G.I. Further, such note of submissions reveals that no incriminating evidence, data, messages, charts, e-mail etc. indicating involvement of the crew members could be found as of now. However, they apprehend that they might get something from the deleted data from the mobile devices of the crew members which has been sent to the Central Forensic Science Laboratory, Hyderabad for examination. 14. The note of submission of the Opposite Party-Customs authorities further reveals that the narcotic substances were found to be affixed at a height of 57 feet to the ceiling beam of the crane operator cabin inside the sheep crane nos.2 and 3 which is a highly restricted place on-board the vessel in question. The vessel, MV DEBI is privately owned and used for conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f now. On such ground, learned counsel for the Union of India as well as the custom authorities contended that the interim release of the vehicle at this stage of the investigation would have an adverse impact not only on the investigation but also on the entire trial. Therefore, the order dated 12.02.2024 passed by the learned Additional District and Sessions Judge, Kujang, thereby directing the interim release of the vehicle under Section 457 Cr.P.C, is highly illegal and the same is liable to be set aside. 16. In view of the aforesaid analysis of the factual background of the present case, further keeping in view the order dated 12.02.2024 passed by the learned Additional District & Sessions Judge, Kujang, the question that false for determination in the above noted two cases, involving identical facts, i.e. 1) as to whether the learned Additional District & Sessions Judge, Kujang has committed any illegality in considering the application of the Petitioner-Shipping Company under Section 457 of Cr.P.C. for interim release of the vessel and accordingly, has passed an order thereby directing interim release of the vehicle in favour of the shipping company? 2) whether the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, a duty is cast upon the Magistrate to pass necessary orders once the property is seized and reported to such Magistrate. Moreover, discretion has been vested with the Magistrate for disposal of such property or delivery of such property to the person entitled to the possession thereof. If the owner of the property is known, then the order shall be passed with regard to the disposal of such property and if the owner is unknown, then such order shall be passed with regard to the custody and production of such property. In the instant case, since the owner of the property is known, the Magistrate is duty bound to pass an order with respect to the disposal of such property or delivery of such property to the person entitled to the possession thereof. 18. So far the sub-Section of Section 457 of Cr.P.C. is concerned, the same provides that if the person so entitled to the property is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. Similarly, if the person is unknown, it is within the discretion of the Magistrate to detain such property and issue a proclamation specifying the articles which the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be kept in police custody for an indefinite period unless it is essential for the investigation. If the property is not required as evidence, it should be returned to the rightful claimant upon furnishing appropriate security or bond. The Hon'ble Supreme Court stressed the importance of safeguarding the interests of the owner while ensuring that the property remains available for trial if needed. 21. In Sunderbhai Ambala Desai v. State of Gujarat reported in (2002) 10 SCC 283, the Hon'ble Supreme Court was dealing with an issue with regard to disposal of seized property under Sections 451 and 457 of the Cr.P.C. While addressing the prolonged retention of seized property in the custody of police authorities, the Hon'ble Supreme Court observed that timely disposal of such property is very much essential. Further, emphasis was given to the fact that the seized property should not be kept indefinitely in police custody, as the same leads to unnecessary deterioration and loss of value. In the context of the vehicle it was observed that the same should be released quickly and that the seized vehicle should be returned to the rightful owner upon furnishing security and ensuring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adjoining the police station. The vehicles lying exposed in an open area, and turning to junk, as a result the value of the property decreases rapidly. The Hon'ble Division Bench has also taken note of the seized articles lying in the malkhanas of the police stations. Accordingly, the directives were issued by the Hon'ble Division Bench for disposal of such seized property. 25. In a similar fashion, in Basudev Singh v. State of Odisha, reported in 2022 (I) ILR-CUT-887, initially the Petitioner had filed an application under section 457 of the Cr.P.C before the learned trial court which was rejected without assigning any reason for the rejection. Aggrieved, the petitioner preferred a criminal revision wherein a coordinate bench of this Court set- aside the impugned order of the lower court with a direction to consider the matter afresh. After the matter was remanded back, the learned Court below again rejected the application of the Petitioner under section 457 of Cr.P.C. Finally, the Petitioner approached this Court seeking relief in the matter. This Court, while adjudicating the matter, had the occasion to deal with the following three issues; vis-a-vis, Whether the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts necessary for identification of the vehicle. With a further condition that the appellant shall not sell or part with the ownership of the vehicle till conclusion of the trial and shall furnish an undertaking to the trial court that he shall surrender the vehicle within one week of such direction or pay the value of the vehicle if so ultimately directed by the court. 27. A Division Bench of this Court in Criminal Revision No. 503 of 2022 (in the matter of Rabindra Kumar Behera vs. State of Odisha) & a batch of similar other applications were required to consider the reference by the learned Single Judge Bench of this Court. The reference to the Division Bench by the learned Single Judge Bench has been quoted hereinbelow:- "To examine the question as to whether the provision under Section 457 of the Cr.P.C. will have no application in a case of release of such vehicle seized under the NDPS Act during investigation or trial of the case." 28. The Hon'ble Division Bench, while answering the aforesaid question, has taken note of several judgments of the Hon'ble Supreme Court including Bishwajit Dey's case (supra). Further, analyzing the provisions contained in Section 451 as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion of the impugned order dated 12.02.2024, the learned trial court has directed the Petitioner to furnish Bank Guarantee to the tune of Rs.10 crores to be executed in any Nationalized Bank within the jurisdiction of that Court. Further, he has also assailed the condition with regard to furnishing an indemnity bond to the tune of valuation of the vessel of Rs.100 crores with one solvent surety for the like amount. So far the condition Nos.3 to 7 are concerned, learned counsel for the Petitioner submitted that the Petitioner- Shipping Company has no objection to such conditions. In summary, the arguments of learned counsel for the Petitioner are entirely directed against the condition Nos.1 and 2 in the ordering portion of the order dated 12.02.2024. 30. As to the value of the vessel, it is no doubt a difficult proposition to accurately assess the exact value of the vessel involved in the present case. Keeping in view the law involved through various judgments of the Hon'ble Supreme Court as well as this Court, the learned trial court while directing interim release of the vehicle/ property is duty bound to ensure that while taking on Zima, the person concerned secures the proper ..... 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