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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 ..... ards 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 very same order dated 12.02.2024 passed by the learned Additional District & Sessions Judge, Kujang in Crl. Misc. Case No.02 of 2024. 3. Since both the matters self-same factual background facts and in both the applications the order dated 12.02.2024 passed in Crl. Misc. Case No.02 of 2024 by the learned Additional District & Sessions Judge, Kujang is under challenge, this Court deems it proper to take up both the matters together for hearing and the same is being disposed of by the following common order. 4. Before discussing the factual aspects of the matter, this Court would like to shed some light on the orders passed in the present proceeding. Initially, the application was listed before the Coordinate Bench on 22.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'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 in para-7 of order dated 29.11.2024, this Court called for a report from the learned Additional District & Sessions Judge, Kujang through the Registry of this Court specifically enquiring as to whether the Custom Dept. was given an opportunity of hearing or not. 6. At the outset, this Court would like to discuss the reply submitted by the learned Additional District & Sessions Judge, Kujang to this Court vide letter No.620 dated 03.12.2024. A copy of such report was placed before this Court by the Registry. Considering the seriousness of the allegation made by the learned C.G.C. it is imperative that this Court should first take up the issue with regard to not providing an opportunity of hearing to the Opposite Party-Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Accordingly, they have seized a total of 22.22 k.g. of white/brown colour hard brittle substance with pungent smell. Such seized material was suspected to be cocaine and the same was kept in a total of 22 number of packets which were recovered from on-board the vessel MV DEBI along with the packing materials and magnet. Subsequently, on 22.12.2023, the vessel MV DEBI was seized vide a seizure memo dated 22.12.2023 under Panchnama dated 22.12.2023. Accordingly, a Special G.R. case was registered and the investigation started. 8. During the aforesaid investigation, the statement of the master of the vessel, 9 nos. of Ship crane operators, the Supervisor of PICT working on-board the vessel and others were recorded. Thereafter, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 a concise form - in course of his argument; I. The master of the vessel had forthwith intimated the charters and customs authority regarding the presence of suspicious material inside crane no. 3 and basing upon such information the contraband articles were seized. II. The vessel in question being used for transportation of public goods can very well be considered as a public vessel and that in the process of loading and unloading of the goods and articles in the vessel several 3rd party operators are involved. Furthermore, several stevedores and charterers have not only loaded the vessel but also operated the cranes and other machineries on the vessel. III. The financial conditions imposed on the Petitioner, vide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 area of the vessel which was beyond the reach of any ordinary human being and without the help of supporting machineries that part of the vessel was inaccessible to every human being on- board the said vessel. II. The assumption by the custom authority of the crew's negligence is not backed by any evidence on record. The vessel being a public goods carrier, had access to 3rd parties, like, stevedores, charterers, etc., who used to manage the crane operation and as such had access to the area where the packets were found. The section 457 Cr.P.C which provides for interim release of the vehicle/ vessel is always subject to reasonable condition. The conditions imposed in the present case however are excessive, arbitrary and unre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 conveyance and commercial purpose by the Petitioner- Shipping Company. Moreover, the entry and exist to the vessel is highly restricted. The vehicle in question was acquired by the Petitioner-company on 16.03.2023 at Panama and after acquiring the vehicle, the same has passed through several ports as has been indicated in the table appended to the note of submission. Learned D.S.G.I, further referring to the International Maritime Traffic prescribed under the Maritime Security Convention vide Resolution adopted on 07.12.2006, contended that the risk in the ports visited by the ships needs to be reviewed regularly by the company and the master, with the security measures being adjusted appropriately as required. Thus, the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 terms and conditions subject to which the vessel was directed to be released interimly in favour of the shipping company are excessive, unreasonable and cause serious prejudice to the Petitioner-Shipping Company? 17. Before making an attempt to answer the above noted two legal issues involved in the present applications, this Court thinks it imperative to first examine the Section 457 of the Cr.P.C. for better understanding of the scope and ambit of the Section, the entire section has been quoted hereinbelow:- "457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled 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 property consists of and require any person who may have a claim thereto to appear before him and establish his claim within six months. On a critical analysis of the provisions contained in Section 457 of Cr.P.C., this Court observes that the law makers, while enacting such a provision, have conferred a vast discretionary power on the Magistrate to take a decision with regard to the release of the property. It is needless to mention here that it is well within the jurisdiction of the Magistrate to pass an order rejecting the application thereby refusing to release the seized property in the event the learned Magistrate is of the opinion that the property is required at the time of inquiry or trial. 19. Applying the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 their availability if required during trial. The Hon'ble Supreme Court also laid emphasis on the fact that the courts dealing with such application should be pragmatic and every endeavour should be made to prevent seized articles from turning into junk. 22. Similarly, in General Insurance Counsel v. State of Andhra Pradesh reported in (2010) 6 SCC 768, the Hon'ble Supreme Court was once again required to decide an issue relating to release of seized vehicles. The Hon'ble Supreme Court was addressing the larger issue of abandoned and unclaimed vehicles lying in police stations for prolonged periods. After a detailed analysis, the Hon'ble Supreme Court emphasized that the vehicle seized in criminal cases should not be left unus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench 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, being the registered owner, is entitled to the interim release of his vehicle? Whether the provisions of the NDPS Act, particularly Section 60(3), bar the release of the vehicle before the trial concludes? And whether the provisions (specifically Sections 451, 457) of Cr.P.C apply to trials under the NDPS Act? Consequently, this court analyzed various provisions of the NDPS Act (specifically sections 51, 60 (3) and 63) along with section 457 of the Cr.P.C and a catena of decisions by the Hon'ble Apex Court and this Court, had ultimately set aside the impugned rejection order and directed the interim release of the vehicle while reaffirming the position that interim release of vehicles under the NDPS Act is permissible under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 as 457 of the Cr.P.C. and further taking note of Section 36 (C) of the NDPS Act and the provisions contained in Section 51, 52 (A) (1), Section 60, Section 63 answered the reference in the following manner:- (I) There is no specific bar/ restriction under the provisions of the NDPS act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim, pending disposal of the criminal case. (II) In the absence of any specific bar under the NDPS Act and in view of Section 51 of the NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for release of the seized vehicle pending final decision in the criminal case. (III) The Court has the discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 Division Bench of this Court in Rabindra Kumar Behera's case, while answering the reference, has laid down the conditions that are required to be fulfilled while directing interim release of the vehicle/ property/ vessel. Another learned Division Bench of this Court in Ashish Ranjan Mohanty's case has also laid down a detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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