B.R. Sarangi, J. -
(1.) The petitioner, by way of this application, seeks direction to the opposite parties to release the SBBL 12 BORE Catridge Gun No. 35002 of Company W.J. Jeffery and Co. Ltd., which was seized in connection with 2(b)CC Case No. 39 of 2006 on the file of learned J.M.F.C, Daspalla, or in alternative pay compensation to him, as the same has been lost in the Court Malkhana.
(2.) As per the prosecution allegation, on 20.05.2006 at 10.30 AM., while the petitioner was proceeding in a Maruti Van, the Forester, namely, Laxman Baral, along with other forest and police staff, stopped the said vehicle. On search, they found a gun, i.e., SBBL 12 BORE Catridge Gun No. 35002 of Company W.J. Jeffery and Co. Ltd. inside the Maruti Van along with some dead birds. The Forester seized the said gun, arrested the petitioner and forwarded him to the Court.
(3.) The case of the petitioner, in brief, is that he is the licence holder of the seized gun and authorized to keep the same for the purpose of safety of his life and protection of his crops, and was permitted a limited area to move with the said gun. The petitioner, along with his brother, was taken by Daspalla Police and then the OIC, Daspalla P.S. called the forest personnel, forwarded the petitioner and his brother, and produced the seized gun in the Court of J.M.F.C., Daspalla, which was kept in the safe custody of Malkhana of the said Court on 20.05.2006. The gun of the petitioner is partly made of iron and partly made of wood, for which frequent service is required for its maintenance or else the gun will be damaged by rust and white ant. Since the seized gun is available in the Court's Malkhana of J.M.F.C., Daspalla, the said Court has jurisdiction to pass an order for its release in the zima of its owner (petitioner) as per the provision of law. Therefore, relying upon the judgment of the apex Court in State of M.P. & Others v. Madhukar Rao,2008 39 OCR 629, an application was filed under Section 451 Cr.P.C. by the petitioner on 01.06.2006 before the learned J.M.F.C., Daspalla, in 2(b)CC Case No. 39 of 2006 for release of the seized gun, and the learned J.M.F.C., Daspalla passed order on 15.05.2018, the effective part of which runs as follows:-
"Hence, taking into account all the above facts into consideration, and the case law that I relied upon, I am of the opinion that the petitioner is the bonafide owner of the said seized gun as per the available documents produced before this Court and has no involvement in the said case leading to seizure of the same. Let the said seized gun bearing SBBL 12 Bore Catridge Ltd., be released in favour of the petitioner by furnishing an indemnity bond of Rs.30,000/- (Thirty thousand Rupees) only or cash of the like amount, subject to the following conditions:
1) The petitioner shall not use the said gun in any criminal activities, and shall not change its colour,
2) He will produce the said gun before the Court during trial as and when required.
3) He shall not change the ownership and alienate the same during the pendency of the case."
In compliance of the said order, the petitioner furnished indemnity bond of Rs.30,000/- along with surety, affidavit, ROR, rent receipt, Aadhar Card and other relevant documents. On perusal of the same, the learned J.M.F.C., Daspalla passed an order on 02.07.2018 directing the Malkhana I/C to release the seized gun forthwith. Even, on the very same day, vide a later order, the Nazir, Malkhana I/C was directed to release the said gun in favour of the petitioner on execution of proper zimanama. On 03.07.2018, on the report noted in the order sheet by the Nazir, Malkhana I/C of that Court, the J.M.F.C., Daspalla passed order that it has to be satisfied about the existence of the said gun of the petitioner in the Court Malkhana only after making inventory, and accordingly directed to put up the matter on 20.07.2018. Thereafter, what has happened in that case, nothing has been placed on record. As the gun in question has not been released in favour of the petitioner, this application has been filed on 11.09.2019 seeking following reliefs:
"(i) Admit the writ application;
(ii) Call for the records;
(iii) Issue rule nisi calling upon the opposite parties to show cause as to why departmental proceeding shall not be initiated against them;
(iv) If the opposite parties fail to show cause or show insufficient cause, make the said Rule absolute by initiating departmental proceeding against the authority concern;
(v) Issue a writ of mandamus or any other appropriate writ/writs, order/orders, direction/directions directing the opposite parties to pay compensation to the petitioner for lost of his gun SBBL 12 BORE Cartridge Gun No. 35002 of Company W.J. Jeffery and Co. Ltd., in the Court Malkhana."
This Court, vide order dated 20.09.2019, noted that despite passing of the order dated 15.05.2018 in 2(b) CC No. 39 of 2006 by the learned J.M.F.C., Daspalla directing release of seized gun styled as SBBL, Bore Gun No. 35002 manufactured by W.J. Jeffery & Col. Ltd. in favour of the petitioner, the same has not yet been released, as the same is not available in the Malkhana of the said Court, and consequentially called for a report from the learned District Judge, Nayagarh. As no report was received, vide order dated 14.11.2019, a reminder was sent. Pursuant to order dated 20.09.2019, the learned District & Sessions Judge, Nayagarh has submitted a report. On perusal of such report, it is observed that the seized gun styled as SBBL 35002, 12 Bore Catridge manufactured by W.J. Jeffery and Company Ltd. has been found missing from Daspalla Court Malkhana during the incumbency of Sri Sukanta Kumar Satapathy, the then Malkhana Clerk. It has also been indicated that after receipt of explanation from Sukanta Kumar Satapathy, the office will initiate both administrative and legal action against him.;