Orissa High Court Issues Directions To Deal With 'Ever-Growing' Stock Of Seized Vehicles & Properties In Police Stations

The Court lamented that despite having clear statutory provisions and multiple judgments of the Apex Court on this aspect, implementation has been minimal in the State. It observed:

"Although there exist statutory provisions in the Cr.P.C. and allied statutes to deal with the problem, and orders have been passed by the Supreme Court for their implementation, very little in actual terms has been done in Odisha to ease the pressure on the police malkhanas and thereby the Courts. This area appears to be by and large a neglected one and warrants immediate attention."

In the light of multiple judgments of the Apex Court (infra) and directions issued by the Delhi High Court in Manjit Singh v. State (decision dated 10th September 2014 in CRL.M.C.4485 of 2013), the Court issued the following detailed directions to deal with seized articles/properties and vehicles.

Directions for dealing with articles/properties in general:

(i) Within one week of their seizure, properties seized by the police during investigation or trial are to be produced before the Court concerned;

(ii) the concerned Court shall expeditiously, and not later than two weeks thereafter, pass an order for its custody in terms of the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore, (1977) 4 SCC 358; Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283, and General Insurance Council v. State of A.P., (2010) 6 SCC 768.

(iii) In any event, no property will be retained in the malkhana of the Court or in the police station longer than a period absolutely necessary for the purposes of the case; if it has to be longer than three months, the Court concerned will record the reasons in an order but on no account will the period of retention exceed six months.

(iv) In the event the property seized is perishable in nature, or subject to natural decay, or if cannot for any reason be retained, the Court concerned may, after recording such evidence as it thinks necessary, order the said property to be disposed of by way of sale, as the Court considers proper, and the proceeds thereof be kept in a separate account in a nationalized bank subject to orders of the concerned court.

Directions as regards the vehicles:

(I) Vehicles involved in an offence may be released either to the rightful owner or any person authorised by the rightful owner after

(a) preparing a detailed panchnama;

(b) taking digital photographs and a video clip of not more than 1 minute duration of the vehicle from all angles;

(c) encrypting both the digital photograph and the video clip with a hashtag with date and time stamp with the hash value being noted in the order passed by the concerned court;

(d) preserving the encrypted digital photograph and video clip on a pen-drive to be kept in a secure cover in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court;

(e) preparing a valuation report of the vehicle by an approved valuer;

(f) obtaining a security bond.

(II) the concerned court will record the statements of the complainant, the accused as well as the person to whom the custody of the vehicle is handed over affirming that the above steps have taken place in their presence.

(III) Subject to compliance with (I) and (II) above, no party shall insist on the production of the vehicle at any subsequent stage of the case. The panchnama, the encrypted digital photograph and video clip along with the valuation report should suffice for the purposes of evidence.

(IV) The Courts should invariably pass orders for return of vehicles and/or accord permission for sale thereof and if in a rare instance such request is refused, then reasons thereof to be recorded in writing should be the general norm rather than the exception.

(V) In the event of the vehicle in question being insured, the concerned Court shall issue notice to the owner and the insurance company prior to disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that he has claimed insurance/released his right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in public auction.

(VI) If a vehicle is not claimed by the accused, owner, or the insurance company or by a third person, it may be ordered to be sold by public auction.

General directions:

(i) The concerned Court may impose any other appropriate conditions which it may consider necessary in the facts and circumstances of each case.

(ii) The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.

(iii) If the Court is of the view that evidence in relation to the condition of the vehicle is necessary to be recorded even before its disposal in terms of the directions above, then such evidence be recorded, in the presence of the parties, forthwith and prior to disposal of the property.

(iv) Special features of the property in question could be noted in the Court's order itself in the presence of parties or their counsel. Besides, a mahazar clearly describing the features and dimensions of the movable properties which are the subject matter of trial could be drawn up.

(v) If a person to whom the interim custody of the property/vehicle is granted is ultimately found not entitled to it, and is unable to return it, its value shall be recovered by enforcing the bonds and the security taken from such person or recovering the monetary value from him as arrears of land revenue.

(vi) As regards the directions for vehicles issued under (I)(c) and (d) is concerned, the Registry of the High Court will communicate to each of the District Judges the detailed Standard Operating Procedure ("SoP") that is required to be followed. The directions issued in (I)(c) and (d) will become operational as soon as the said SoP is received by the concerned District Judge.

(vii) Similar directions concerning the encryption of digital photographs and video clips will become effective on receipt of the SoP by District Judge from the registry of the High Court.

Attention of the Court was drawn to the judgment in Ghasana Mohapatra v. State of Odisha, (2019) 1 OLR 275, wherein it was held that in excise cases when the accused is the owner of the seized vehicle, the same cannot be released in his favour. Further, in Ramakrushna Mahasura v. State of Odisha, (2021) 81 OCR 635, it was held that when the vehicle that caused the accident has no third-party insurance, it cannot be released without taking deposit of the money to which the victim is entitled to. At this juncture, the Bench clarified that hereafter as far as release of the vehicle is concerned, the directions issued in this order would prevail over the aforesaid judgments.

The Registry of the High Court was requested to circulate to all the District Judges the detailed SoP to be followed by each of the Magistrates. The Secretary, Odisha State Legal Services Authority and the Director General of Police were directed to co-ordinate with the concerned District Courts and the Superintendents of Police respectively to ensure strict compliance with the order.

Case Title: Ashis Ranjan Mohanty (Adv.) v. State of Odisha & Ors.

Case No.: W.P.(C) 31622 of 2021

Date of Judgment: 31 January 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice A.K. Mohapatra

Citation: 2022 LiveLaw (Ori) 8

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