ORDER
1. Heard learned counsel for the petitioner and the learned Addl. Government Advocate.
2. The petitioner was before this Court in W.P.(CrL) No. 206 of 2005. The said writ application was disposed of by the order dated 4.6.2005 with a direction to Opp. Party No. 2 therein to dispose of the application of the petitioner dated 30.4.2005 filed under Section 17 of the Orissa Minerals (Prevention of Theft, Smuggling and Other Unlawful Activities) Act, 1988 (hereinafter referred to as “the Act”) within a period of two weeks from the date of receipt of certified copy of the said order from the petitioner.
3. The grievance of the petitioner in the present writ application is that in spite of the said specific order passed by this Court to dispose of the application filed by the petitioner under Section 17 of the Act for release of the seized Truck in his favour, the authority under the Act without disposing of the said application and misinterpreting the order of this Court passed orders under Section 16 (3) of the said Act directing confiscation of the Truck alongwith the alleged quantity of coal found therein.
4. Mr. B. P. Ray, learned counsel for the petitioner submits that the said order passed by the competent authority-Deputy Director, Mines, Sambalpur under Section 16 (3) of the Act annexed as Annexure-5 to the writ application being wholly illegal and having been passed without following due process of law inasmuch as without giving any opportunity to the petitioner as per the provisions of the Act for proving his case, is liable to be quashed and he is also entitled to an order for release of the Truck.
5. Mr. P. K. Mohanty, learned Addl. Government Advocate on the contrary submits that even though in the previous writ. application this Court directed to dispose of the application filed by the petitioner under Section 17 of the Act, since the competent authority has disposed of the entire matter pending before him, there is no illegality whatsoever in passing the order of confiscation which is challenged in the present writ application. He further contended that in view of the provisions of Section 23 of the said Act providing appeal against the order of conliscation, this writ application is liable to dismissed as alternative remedy is available.
6. Mr. Ray, learned counsel for the petitioner relying on Sub-section (4) of Section 16 of the Act submitted that the competent authority could not have passed the order impugned without following the procedure laid down under Sub-section (4) of Section 16 of the Act which requires notice in writing mentioning therein the grounds on which it is proposed to confiscate the seized property. He. therefore, submitted that even though there is a provision of appeal in the Act, but in the circumstances of the present case, the said remedy by way of appeal cannot be construed to be an efficacious remedy.
7. On a reading of the order passed by this Court in W.P.(Crl.) No. 206 of 2005, we are satisfied that the competent authority under the Act was directed to dispose of the application filed by the petitioner under Section 17 of the Act for release of the seized truck. Reading of the impugned order under Annexure-5 also clearly shows that the competent authority has misconstrued the order passed by this Court in the aforementioned writ application and has assumed that the said order directed him to dispose of the entire proceeding.
8. Be that as it may, if the competent authority thought of disposing of the entire confiscation proceeding, he would have done so by following the procedure as provided under Section 16(4) of the Act. Ultimately no notice mentioning the grounds on which it is proposed to confiscate the property having been served on the petitioner, the competent authority was not correct in passing the impugned order without issuing such notice to the petitioner. In these circumstances, in our view, even though an alternative remedy is available under the Act against the impugned order, but the said remedy cannot be said to be speedy and efficacious. Further, existence of an alternative remedy ipso facto does not oust the plenary jurisdiction under Articles 226 and 227 of the Constitution of India and in an appropriate case, it is open for the writ Court to exercise jurisdiction under the above Articles of the Constitution for the ends of justice. In our view, it is a fit case where this Court should interfere with the impugned order in spite of the fact that the same is appealable under the provisions of the Act. We further find that the Orissa Minerals (Prevention of Theft, Smuggling and Other Unlawful Activities) Rules, 1990 which have been framed pursuant to the power of the State Government under Section 37 of the Act provide for compounding of the offences by the competent authority under Rule 14 thereof. Rule 14 of the said Rules provides that on receipt of a written application from the accused person, the competent authority may, in exercise of its powers under Section 15 of the Act compound the offence punishable under the Act, either before or after institution of the prosecution. Section 15 of the Act provides that any offence punishable under the Act can be compounded by the competent authority on payment of such sum as the said authority may determine and if the said sum so determined is paid in any proceeding which has already commenced, such proceeding shall not be further proceeded with.
9. In view of the above provisions of the Act and the Rules framed thereunder, the petitioner has a right to notice as stated earlier and further has a right to make an application for compounding the offence. As we find that the impugned order under Annexure-5 has been passed contrary to the above provisions of the Act and the Rules, we have no hesitation to quash the same and we do so accordingly. The matter is remanded back to the competent authority-Opp. Party No. 2 who shall proceed with the matter after duly complying with the provisions of Section 16(4) of the Act and also after duly affording the opportunity to the petitioner to file an application for compounding of the offence.
10. Since in our view the matter will take some time to be finally disposed of and in view of the position of law as pronounced by the Apex Court that a vehicle seized should not be allowed to remain exposed to weather thereby diminishing its value to the benefit of none, we direct that the seized Truck be released in favour of the petitioner on executing a bond for production of the Truck as and when so required as per the provisions of Section 17 of the Act. The amount for which the said bond will be executed, will be determined by the competent authority. The competent authority shall proceed with the matter as directed above on production of the certified copy of this order by the petitioner and on execution of the bond for the quantum as would be directed by the competent authority, the seized Truck shall be released immediately thereafter in favour of the petitioner.
11. The writ application is, accordingly, allowed.
12. Urgent certified copy of this order be granted on proper application.