BARENDRA KUMAR CHOUDHURY Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this appeal the only challenge is to the direction given by learned Judge, Special Court, Kalahandi, Bhawanipatna to confiscate the seized rice to the State. The appellant (hereinafter referred to as 'accused') along with three others faced trial for alleged violation of provisions of Sub -clauses (2 and 3) of Clause 10 of Orissa Rice and Paddy Procurement (Levy) and Restriction of Sale and Movement Order, 1982 (in short, the 'Order') attracting punishment under Section 7 of the Essential Commodities Act, 1955 (in short, the 'Act').

(2.) PROSECUTION report was lodged by the Marketing Inspector, Bhawanipatna alleging unauthorised transportation of rice. Allegation related to transportation of 30 quintals of rice in a truck bearing registration No. AAK 5504. As accused -appellant could not produce any licence or permit to possess or transport rice, the same was seized and prosecution report was submitted, and accused faced trial. Three witnesses were examined to further the case of prosecution. A stand was taken before the learned Judge, Special Court that prosecution cannot be maintained and the procedure was vitiated as the basis for initiation of proceeding and cognizance was not a police report as contemplated in Clause (e) of Sub -section (1) of Section 12AA of the Act. Learned Special Judge accepted the plea of accused that Special Court, Kalahandi, Bhawanipatna did not have competence to take cognizance on the basis of prosecution report submitted by the Marketing Inspector (PW 2) and therefore, taking cognizance on the basis of prosecution report has no legal sanction. Learned Special Judge held the prosecution to be misconceived in view of what has been stated by this Court in Khagendra Kumar Swain and Anr. v. The State of Orissa, 59 (1985) CLT 324. Accordingly accused persons were - acquitted under Section 248(1) of the Code of Criminal Procedure, 1973, (in short, 'Cr.PC'). He directed that the truck be released, in favour of the owner, but sale proceeds of seized rice were to be confiscated to the State after expiry of appeal period if no appeal is pending.

(3.) SECTION 452, CrPC deals with order for disposal of property at conclusion of trial. The said provision comes into operation only on conclusion of an enquiry or trial in a Criminal Court. It refers, to four classes of property or document: (a) produced before the Court; (b) in its custody; (c) regarding which any offence is committed; or (d) which is used in committing any offence. These four classes of property are listed disjunctively so that, provided the inquiry or trial has come to an end and the property falls within any of the four categories, the Court has jurisdiction to pass order under the Section. Such property can be disposed of in any of the four following ways : (i) destruction; (ii) confiscation; (iii) delivery to person entitled to its possession; or (iv) otherwise. Stress is on return of the property to the person claiming to be entitled to possession thereof in case property is not for destruction or confiscation. The section authorises the Court to returns the articles, whether or not an offence is committed in respect thereof, to the person claiming to be entitled to possession. The expression' person claiming to be entitled to possession' is important. It does not mean owner. Ownership involves a question of title, whereas possession does not. It is stated that, trial Court should have by resort to the residual provision 'or therwise' directed delivery to the accused. The words 'or otherwise' must be read ejusdem generis to the modes of disposal previously stated and do not confer a general power to make any order of disposal which the Court may deem fit. As appears from the order of learned Special judge' none of the accused persons laid any claim to the seized property. Before me also no material could be placed as to how appellant ' is aggrieved by the direction for confiscation as the claim is not the seized articles belonged to him. Therefore, learned Judge, Special Court was justified in directing return of the truck to the owner and also proceeds of seized rice to be confiscated to the State. The appeal is without any merit and is dismissed.