Allowed

V. Yerriswamy S/O Osrinivasalau v. the State of Karnataka

Karnataka HC13 Jun 2019CRL.RP/100169/2018

Case brief

AI extract

What is this about?

High Court allowed criminal revision petition holding that after acquittal, confiscation of excess iron ore auction proceeds was incorrect. Court directed release of entire auction amount to petitioner, subject to recovery of any outstanding royalty or tax.

What did the court decide?

Impugned orders confirming partial confiscation set aside; direction to release entire auction sale consideration of iron ore to petitioner subject to recovery of royalty/tax.

V. Yerriswamy S/O Osrinivasalau Vs the State of Karnataka — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JUNE 2019

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BEFORE

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THE HON’BLE MR.JUSTICE B.A.PATIL

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CRIMINAL REVISION PETITION NO.100169/2018

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BETWEEN:

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V. YERRISWAMY S/O SRINIVASALU, AGED ABOUT: 38 YEARS, OCC: BUSINESSMAN, R/O: "SRI HARI NILAYA", WARD NO.27, CHAPPARADAHALLI,VALMIKI CIRCLE, DAM ROAD, HOSAPETE, BELLARY, NOW AT URAVAKONDA, STATE: ANDHRA PRADESH.

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... PETITIONER

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(BY SRI. V. M. SHEELVANT, ADVOCATE) AND

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THE STATE OF KARNATAKA GEOLOGIST, MINES AND GEOLOGY DEPART, STATION HOSAPETE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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... RESPONDENT

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(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1) R/W 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS, ALLOW THE REVISION PETITION AND SET ASIDE

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THE ORDER DATED 23.12.2016 PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, HOSAPETE IN C.C.NO.159/2013 AND ORDER DATED 14.06.2018 PASSED BY THE III-ADDL. DISTRICT & SESSIONS JUDGE, BALLARI, IN CRL.A.NO.5004/2018 IN SO FAR ORDER OF CONFISCATION OF PART OF AUCTION SALE CONSIDERATION OF IRON ORE BELONGING TO THE PETITIONER AND DIRECT THE TRIAL COURT TO RELEASE THE ENTIRE AMOUNT OF AUCTION CONSIDERATION OF IRON ORE.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition has been filed by the petitioner being aggrieved by the order passed by the III-Additional District and Sessions Judge, Bellary in Criminal Appeal No.5004/2018, dated 14.06.2018, wherein the order dated 23.12.2016 passed by the Principal JMFC Court, Hospet in C.C.No.159/2013 was confirmed.

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I have heard the learned counsel for the

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petitioner and the learned HCGP for respondent.

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The case of the prosecution is that on

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18.05.2010 the officials of Mines and Geology raided the stockyard of the accused and found excess storage of iron ore than the permitted capacity. It is also alleged that the accused has submitted false and fabricated permit and stored 15013 MT excess iron ore. A case was registered and the accused was tried for the said offence and was acquitted. Though the Court below acquitted the accused, it has permitted to release the amount pertaining to only quantity of 14432 MT iron ore in favour of the accused and remaining amount of the iron ore was ordered to be confiscated to the state by conducting auction. Challenging the same, the petitioner preferred an appeal before the District and Sessions Judge, Ballari (Sitting at Hosapete) but the said order of the Trial Court was confirmed.

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It is the submission of the learned counsel

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for the petitioner that the petitioner was charged for the offences punishable under Section 4(1), 4(1)A, 21(1) to

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21(6) of the M.M.R.D. Act and Section 379 of IPC. The trial Court after conducting trial has acquitted the accused by holding that the prosecution has failed to prove its case beyond all reasonable doubt. When the Court has acquitted the accused, then under such circumstances, it ought to have released the seized articles or the amount worth of the said iron ore, which is the property in the offence in favour of the accused. It is further contended that no other claimants are there. It is further submitted that if at all there was no permit to transport the said iron ore, at the most the government can recover the royalty.

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He further submitted that no other special circumstances have also been made out to confiscate the said property, which is the subject matter of prosecution’s case. The Court has to dispose off the property in any of the three modes specified under section 452 of Cr.P.C., The choice of the mode or manner of disposal is not to be made arbitrarily, but it

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is to be done judiciously and in accordance with sound principles founded on reason and justice. In order to substantiate the said contention he has relied upon on the decision of the Hon’ble Apex Court in the case of N.

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Madhavan v. State of Kerala, reported in (1979) 4 SCC 1 . On these grounds, he prayed to allow the petition and to set aside the impugned orders and the trial Court may be directed to release the amount to the extent of seized property in favour of the accused. It is

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his further submission that the remaining iron ore, which was confiscated, has already been auctioned and the said amount has to be released in favour of the accused.

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Per contra, the learned HCGP has

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vehemently argued and contended that the order of the Trial Court clearly goes to show that the accusedpetitioner is having permit to store only 14432 MT of iron ore and if any excess iron ore is found in the stockyard of the accused, the same belongs to the state.

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The Trial Court and the First Appellate Court after considering the said facts and circumstances have ordered for confiscation of excess quantity of iron ore and also ordered to release 14432 MT of iron ore in favour of the petitioner. He further submitted that the iron ore which was seized is the state property. In the absence of material produced by the accused, the said property has been confiscated and sold by way of auction. On these grounds, prayed to dismiss the petition.

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I have carefully and cautiously gone through the submissions made by the learned counsel appearing for parties and perused the records.

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As could be seen from the records, the accused was charged for the offences punishable under section 4(1), 4(1)A, 21(1) to 21(6) of the M.M.R.D. Act and Section 379 of IPC. It is further alleged that the accused was found with excess storage of iron ore than the permit, which he has obtained. It is not in dispute that the accused has been tried for the above offences. Since

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the prosecution has failed to prove its case beyond all reasonable doubt, the Trial Court by its judgment dated 23.12.2016 has acquitted the accused. However, while passing the judgment, the Trial Court further ordered that the accused is entitled to get auction sale consideration to the permitted quantity of 14432 MT iron ore and sale consideration amount of remaining iron ore was ordered to be confiscated to the state. Section 452 of Cr.P.C., speaks about the disposal of the property after conclusion of trial. Said section reads as under:

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452. Order for disposal of property at conclusion of trial.- (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

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(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under subsection (1) is modified or set aside on appeal or revision.

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(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.

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(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

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(5) In this section, the term"property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession

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or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

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On close reading of the above section the ordinary rule to be followed is that whether an order has to be made for return of the property under section 452 of Cr.P.C., after the accused is discharged or acquitted. Admittedly, in the instant case on hand, the property has been seized from the possession of the accused. The main allegation is that he stored excess quantity of iron ore than the permit, but when the Court has given honourable acquittal to the accused, it ought to have passed an order to release the entire property or the amount which was secured by way of auction sale of the iron ore. This principle of law has been also laid down by the Hon’ble Apex Court in the case of N.Madhavan ( stated supra ) at para No.9 and 10, which reads as under:

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“9. In the case before us, the gun in question does not fall either under class (c) or class (d) because

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it is neither “property" regarding which any offence appears to have been committed, "nor” “which has been used for the commission of any offence". The acquittal of the accused on the ground that this gun was used in causing the fatal injury to the deceased, only in self-defence, necessarily involved a finding that the gun was not used in the commission of any offence for which the accused was tried. The gun was obviously property falling under class (b).

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10. The words "may make such order as it thinks fit" in the Section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such well-recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary Rule of practice is not to be lightly made, when there is no dispute

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or doubt-as in the instant case-that the property in question was seized from the custody of such accused and belonged to him.”

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Keeping in view the above said facts and circumstances and the law laid down by the Hon’ble Apex Court, I am of the considered opinion that both the courts below without keeping in view the provisions of section 452 of Cr.P.C., have passed the order to confiscate the remaining iron ore. Both the Courts below have not passed correct and legal order that too when no other claims have been made either by the state or by any third party. Even against the order of acquittal, the state has not preferred any appeal challenging the same. The orders of both courts indicate that accused has been convicted and excess amount of iron ore has to be confiscated to the court. It appears to be incorrect. Under such circumstances, the only alternate left open to the Court below is to release the entire amount received by selling of the iron ore in favour of the accused. The petitioner has made out a case and as such, revision petition is allowed

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and the order dated 14.06.2018 in Criminal Appeal No.5004/2018 passed by the learned III-Additional District and Sessions Judge, Ballari (Sitting at Hosapete) is set aside. Consequently the judgment dated 23.12.2016 in CC No.159/2013 passed by the Principal Senior Civil Judge and JMFC, Hospet, insofar as the order of releasing amount of auction sale consideration of permitted quantity is kept intact and the order of confiscation of auction sale consideration of remaining iron ore is modified and it is directed that the amount of auction sale of remaining iron ore, which was seized from the possession of the accused is ordered to be released in favour of petitioner subject to the condition that if any royalty or any tax is balance from petitioner, the same

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may be recovered from him in accordance with law.

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Sd/JUDGE

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yan

V. Yerriswamy S/O Osrinivasalau v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

V. Yerriswamy S/O Osrinivasalau v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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