Dismissed

Basheer Khan v. the State of Kerala and 2 Others

Kerala HC21 Jan 2010Crl.MC/10/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging a Magistrate's order denying interim custody of a seized lorry. The bench held that the vehicle was produced to the District Collector for confiscation, necessitating an approach to the Collector for custody rather than the Magistrate.

What did the court decide?

Petition filed under Section 482 CrPC to quash the Magistrate's order was dismissed.

Basheer Khan Vs the State of Kerala and 2 Others — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931

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Crl.MC.No. 10 of 2010(A)

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----------------------------------(C.M.P. NO. 15526/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KARUNAGAPPALLY IN CRIME NO. 1374/09 OF KARUNAGAPPALLY POLICE STATION)

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PETITIONER:

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-------------------

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BASHEER KHAN, S/O. MUHAMMED KUNJU, RESIDING AT BENGLAVIL THEKKETHIL HOUSE, THAZHAVA SOUTH, THAZHAVA VILLAGE, KARUNAGAPPALLY.

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BY ADVS. MR.M.V.BOSE, SMT.NISHA BOSE.

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RESPONDENTS:

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------------------------

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. THE SUB INSPECTOR OF POLICE, KARUNAGAPALLY.

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3. THE DISTRICT COLLECTOR, KOLLAM.

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R1 TO R3 BY PUBLIC PROSECUTOR MR. S.U. NAZAR.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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prv.

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M.SASIDHARAN NAMBIAR, J.

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Crl.M.C.No.10 of 2010

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Dated this the 21^st day of January, 2010

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ORDER

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Lorry bearing registration No.KL2H/4815 was seized by Karunagappally police and crime 1374/2009 was registered under Section 3 and 7 of Essential Commodities Act. The seized lorry was produced before the District Collector for confiscation. The District Collector directed the police to keep the vehicle in their custody until further orders. Petitioner in the meanwhile filed CMP 15526/2009 under Section 457 of Code of Criminal Procedure for interim custody of the vehicle before Judicial First Class Magistrate, Karunagappally contending that he is the R.C.owner of the vehicle and hence is to be released to him. Petition was opposed by the Assistant Public Prosecutor contending that the lorry was produced before the District Collector for confiscation and in such circumstances, it cannot be released to the petitioner.

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The learned Magistrate by Annexure-A3 order dismissed the petition holding that the vehicle was not produced before the court and was produced before the District Collector for confiscation and Section 6A of the Essential Commodities Act

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provide for confiscation and therefore, the vehicle cannot be released. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A3 order.

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Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard.

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The arguments of the learned counsel is that eventhough the vehicle was produced before the District Collector, no notice to show cause why the vehicle shall not be confiscated was issued as provided under Section 6B of the Essential Commodities Act and in such circumstances, as held by this court in Crl.M.C.2433/2009 (Annexure-4 order) Magistrate has jurisdiction to grant interim custody and hence the order is to be quashed. The learned counsel also argued that even if the vehicle was not produced before the Magistrate he has jurisdiction under Section 457 of the Code of Criminal Procedure to grant interim custody even if factum of seizure was not reported.

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Learned Public Prosecutor pointed out that the facts considered by this court in Annexure-A4 order are entirely different. It is pointed that in that case the vehicle was first produced before the court and only thereafter it was produced

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before the District Collector and finding that no show cause notice as directed under Section 6B of Essential Commodities Act was issued, this court held that Magistrate can exercise the power under Section 451 of Code of Criminal Procedure and hence the said decision cannot be applied to a case where the vehicle was not produced before the Magistrate at all.

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Section 6A of the Essential Commodities Act provides for confiscation of essential commodities, including any animal, vessel or other conveyance used in carrying the essential commodity. Therefore it cannot be disputed that the District Collector has the power to confiscate the vehicle involved in the case as provided under Section 6A, if it was involved in carrying essential commodity as alleged by the prosecution. As distinct from the case considered by this court in Annexure-A4 order, the vehicle involved in this case was not produced before the Magistrate instead it was produced before the District Collector for confiscation. Evenif it is taken that the District Collector has not issued a show cause notice under Section 6B of Essential Commodities Act, petitioner has to approach the District Collector for interim custody. If the petitioner files an application for interim custody, the District Collector to consider

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the same and pass appropriate orders in accordance with law. As I find no reason to interfere with Annexure-A3 order, the petition is dismissed.

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M.Sasidharan Nambiar, Judge

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Basheer Khan v. the State of Kerala and 2 Others

Case brief

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Basheer Khan v. the State of Kerala and 2 Others

Case brief

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