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1999 SCC OnLine Ori 202 : (1999) 88 CLT 816 : 2000 Cri LJ 1172

Orissa High Court

(BEFORE P.K. MISRA, J.)

Fakira Subudhi … Petitioner;

Versus
State of Orissa & Another … Opp. Parties.
Criminal Misc. Case No. 3123 of 1996, decided on 6-7-1999, in the matter of an
application under section 482, Code of Criminal Procedure, 1973
Criminal Misc. Case No. 3123 of 1996
Decided on July 6, 1999
The Judgment of the court was delivered by
P.K. MISRA, J.:— The petitioner has filed this application under section 482, Code
of Criminal Procedure (hereinafter referred to as the “Cr, P.C. “) seeking for a direction
to the

Page: 817

apposite parties for the release of seized items of properties which bad been seized
from the petitioner under the Essential Commodi-ties Act in connection with 2(c) CC
Case No. 103/75. The seizure-list has been annexed as Annexure-1 which includes,
inter alia, considerable quantity of cocount oil, til oil, groundnut oil, vanaspati and
mustard oil. Certain other items were also seized, but some of those items were earlier
returned and some items were sold, the sale proceeds of which have been deposited in
the Court. These seized articles had been kept in Zima of one Srinibas Pradhan who
was working as the Secretary, Balugaon Regional Co-operative Marketing Society.

2. The petitioner was acquitted in the said case under section 7(1) of the Essential
Commodities Act. Thereafter, on the basis of the application filed by the petitioner, the
appellate court (Additional Sessions Judge, Puri) passed an order directing return of
the seized articles to the petitioner. In spite of the aforesaid order, the articles having
not been returned to the petitioner, another application was filed by the petitioner
before the Sub-Divisional Judicial Magistrate, Khurda, who vide his order dated 18-8-
1990 directed return of the articles which had not been sold and further directed that
the sale proceeds deposited in treasury be returned to the petitioner. In spite of the
above order, the articles could not be returned to the petitioner as the Zimadar had
failed to produce the goods.
3. By order dated 18-8-1990, the Sub-Divisional Judicial Magistrate had exonerated
the proceeding initiated against the ex-Supervisor of Supply, as it was found that the
articles though handed over to the succeed-ing officers, had been applied due to lapse
of time. As already noted, ultimately the Magistrate directed the refund of sale
proceeds deposited vide Treasury Challan No. 4, dated 6-4-1976 and further directed
for return of the various quantities of oil of different kinds seized under the seizure-
list.
4. The prayer of the petitioner in this application is to direct return of the seized
articles. After hearing the counsel for the petitioner and learned counsel for the State
as well as the counsel appearing for the R.C.M.S. and after going through
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the lower court records, it is evident that the articles which had been seized cannot be
returned to the petitioner in specie as the articles have been sold or damanged in the
meantime, but there is no difficulty in regard to the sale proceeds which have been
deposited in the treasury and the same should be refunded to the petitioner, if not
already refunded in the meantime.

5. So far as the various quantities of oil which had been seized are concerned, the
said articles cannot be returned. The question is as to whether the petitioner should be
asked to file a suit claiming damages against the State, or an appropriate direction
should be given for paying an amount approximately representing the money value of
the seized articles. The learned counsel for the petitioner has relied upon the decision
of this Court reported in A.I.R. 1991 Orissa 197 (State of Orissa v. Ramachandra Das),
where direction had been made for return of the articles. The learned counsel for the
State, on the other hand, submitted that even though the articles had been admi-
ttedly seized, since the articles in specie cannot be returned, the application for return
of the articles has become infructuous and, at any rate, a suit for damages may not be
maintainable as cause of action relates to soveroign act of the State. For the aforesaid
purpose, the counsel for the State has relied upon the decision reported in A.I.R. 1965
Supreme Court 1039 (Kastury Lal v. State of Uttar Pradesh), The said decision of the
Supreme Court was also considered in the decision of the Orissa High Court reported
in A.I.R. 1991 Orissa 197. In view of the decision of the Orissa High Court, there
cannot be any doubt that after acquittal, the petitioner is entitled to get return of the
seized articles. £ven though the tins containing oil which had actually been seized
cannot be returned as the same has either been spoiled or lost in the meantime,
similar quantity of oil can be directed to be returned, or the State can be directed to
pay the money value of the articles. The articles had been seized about 24 years back.
A direction to return similar quantity of oil at the present time may not be appropriate
keeping in view the huge difference in the prices of the articles concerned. Having
regard to all these

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aspects and in the focts and circumstances of the case, I think interest of justice
would be served by directing that in addition to the amount deposited in the treasury
as per Challan No. 4, dated 6-4-1976 which should be refunded if not already done in
the mentime, a further sum of Rs. 15,000/- (fifteen thousand) may be paid to the
petitioner by way of compensation. This amount has been arrived at by keeping in
view the prices in the year 1976 and the present prices of oil. Since learned counsel
for the petitioner has prayed for payment of compensation and stated that his client is
not interested to file a suit, this order is passed to avoid any unnecessary litigation. It
is made clear that the petitioner cannot file any suit claiming any further damages.

6. The next question is as to who should pay the afore-said amount, The State was
the prosecutor and the property had been seized by the officer of the State, Even
though it was kept in zima of one employee of the R.C.M.S.. it is no doubt true that
the said employee was a Government servant deputed by the State and the articles
were being handed over to other employees of the State from time to time. Even
otherwise, R.C.M.S. is also an instrumentality of the State. The Society as such was
not the zimadar. Therefore it would be unjust to direct the Society to pay the
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compensation and in the interest of justice, compensation should be paid by the State.
7. For the aforesaid reasons, the Criminal Misc. Case is allowed with the following
directions:—
(i) The deposited amount be refunded to the petitioner, if not already done in the
meantime;
(ii) A sum of Rs.? 5,000/- (fifteen thousand) be paid as compensation;
(iii) Since the said amount is being paid on the basis of specific request of the
counsel of the petitioner on the basis of the submission that no suit would be
filed, it is made clear that petitioner would not be entitled to file a suit claiming
any further damages;
(iv) The amount should be paid within a period of three months from today..
However, if the amount is not paid within three months, it will become payable
with Twelve per cent interest thereafter.

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8. Crl. Misc. Case allowed.

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