High Court allowed revision regarding failed application for vehicle custody. Court held police must charge; Collector cannot confiscate. Vehicle released to petitioner on bonds subject to final court orders.
Release of vehicle to petitioner on bonds of Rs.5,00,000, copies of documents, and strict conditions for custody pending prosecution.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 2ND DAY OF SEPTEMBER 2014/11TH BHADRA, 1936
Crl.Rev.Pet.No. 1492 of 2014 ()
AGAINST THE ORDER/JUDGMENT IN CMP 3610/2014 of J.M.F.C.-I,ATTINGAL DATED 11-08-2014
REVISION PETITIONER(S)/REVISION PETITIONER/PETITIONER :
BIJU,
S/O.APPU, SHIBU NIVAS, VALAKKADU, MUDAKKAL.P.O TRIVANDRUM.
BY ADV. SRI.M.R.SARIN
RESPONDENTS/STATE/COMPLAINANT :
1. THE STATE OF KERALA, REPRESENTED BY THROUH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
2. THE SUB INSPECTOR OF POLICE, ATTINGAL POLICE STATION REPRESENTED THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.GITHESH.R., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AMV
P. UBAID, J. CR
--------------------------------------Crl.R.P. No. 1492 Of 2014
Dated this the 2nd day of September, 2014
A vehicle belonging to the revision petitioner was seized by the Sub Inspector of Police, Attingal under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'the Act'), when he found red earth being transported in the said vehicle in violation of Section 4(1A) of the Act. On seizure, the Sub Inspector, suo motu, registered a crime against the revision petitioner. However, seizure of the property was not reported to the learned Magistrate having jurisdiction. When nothing proceeded further at the hands of the police, the revision petitioner moved the learned Judicial First Class Magistrate Court-I, Attingal with CMP No. 3610/2014 under Section 457 Cr.P.C, for getting custody of the vehicle seized by the police. The vehicle involved is a tipper lorry bearing No. KL-23-E-3311. Seizure was made by the police on 21.07.2014.
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Section 457 Cr.P.C. was resisted by the prosecution on the contention that the fact of seizure has already been reported to the District Collector, and that the vehicle is liable for confiscation by the District Collector. The legal objection raised by the prosecution is that the court will have no role when the matter is reported to the District Collector for confiscation proceedings.
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position settled by this Court in Joshy v. The State [1986 CRI.L.J. 263(1)] . In the said case, this Court held that when claim for custody of property is made in a situation where no inquiry or trial is pending before the court, the claim will have to be treated as one under Section 457 Cr.P.C., and orders passed under Section 457 Cr.P.C. in such a situation can be questioned in revision under Section 397 Cr.P.C.
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contained in Section 21(4A), that any property seized under Section21(4) shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under Sub Section (1), and shall be disposed of in accordance with the directions of such court. Here is a case where the property was seized by the police under Section 21(4) of the Act, and any order regarding property, including confiscation orders will have to be passed by the court having jurisdiction. In a case where prosecution is pending, and the offence is compounded as provided under Section 23A of the Act, orders regarding property can be passed by the competent court. When the prosecution proceedings stand terminated on composition, the court can pass final orders under Section 452 Cr.P.C. Thus, I find that in no circumstance can the District Collector pass orders regarding custody or confiscation of property seized under Section 21(4) of the Act.
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not known why the police has not so far initiated prosecution under the Act. It appears that the police is waiting for orders from the District Collector, when he is not the authority to pass any orders. Now it is submitted by the learned Public Prosecutor that the police has been making efforts to file prosecution, and that within a few days complaint will be filed by the authorised officer. Complaint, as provided under Section 22 of the Act can be made by any person or authority authorised by the Government. It is submitted that as per G.O.(Ms)No.20/14/ID dated 12.02.2014, the Government of Kerala have authorised so many authorities including the Sub Inspector of Police, Revenue Divisional Officers in the State, and the District Collectors, to exercise powers and perform functions under Sub Section (4) of Section 21 of the Act. Such an authorisation will not empower those authorities to file complaint under Section 22 of the Act. However, it is also submitted that as per G.O.(Ms) No. 917/97, the Government of Kerala have already authorised police officers of and above the rank of Sub Inspector, District Collectors, Senior Geologists etc. to file complaint under Section 22 of the Act. Of course, when such an authorisation is there, the Sub Inspector of
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Police, Attingal can very well file complaint in this case before the appropriate court. Once such a complaint is filed, appropriate orders will have to be passed by the court. Any way, when the property continues in the custody of police without legal action, some orders will have to be passed regarding custody of the property. When there is actually a complaint brought under Section 22 of the Act, the question of interim custody will have to be first decided by the learned Magistrate having jurisdiction. This Court cannot interfere at that stage. But here, there is admittedly no prosecution, and it is submitted that the police has only been thinking of filing a prosecution in the appropriate court. This Court cannot wait indefinitely. It is not known when the police will bring prosecution. The person having right to possess the vehicle, as registered owner or otherwise, will have to be given custody, subject to orders to be passed by the competent court, in case prosecution is brought. If the police does not think of bringing a prosecution, the orders passed regarding custody of property will have force as a final order. However, if prosecution is brought by the police under Section 22 of the Act, final orders will have to be passed by the competent court. Orders passed
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under Section 457 Cr.P.C. to manage the particular situation will not stand in the way of passing appropriate final orders. In case such a prosecution proceeds and a decision comes on full trial, the court can pass orders under Section 21(4A) of the Act, or under Section 452 Cr.P.C. Even in a case where the offence is compounded pending prosecution, the court trying the offence can pass orders regarding property under Section 452 Cr.P.C. when Section 23A(2) provides that no proceeding or further proceeding shall be taken against the offender in respect of offence so compounded.
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below is directed to release the vehicle bearing No.KL-23-E-3311 to the revision petitioner on the following conditions.
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confiscation passed by the competent court, regarding the property.
Sd/P. UBAID, JUDGE
sd
// TRUE COPY // P.A. TO JUDGE
3 issues framed by the court
Whether orders of release of property seized by police under Mines and Minerals Act can be passed by Magistrate under Section 457 Cr.P.C. when District Collector has initiated proceedings.
Whether the District Collector is the authorised officer to pass orders regarding custody or confiscation of property seized under Section 21(4) of the Act.
Whether the impugned order dismissing the application under Section 457 Cr.P.C. can be treated as an order under Section 451 Cr.P.C. and questioned in revision under Section 397 Cr.P.C.
Colour shows how this judgement treated each authority
Joshy v. The StateExplained¶29
Joshy v. The State [1986 CRI.L.J. 263(1)] · Who else cites this
Shri Aswini Kumar Patra v. State of OrissaDistinguished¶31
Shri Aswini Kumar Patra v. State of Orissa [2005(1)OLR 402]
8 provisions across 2 enactments
BIJU
THE STATE OF KERALA
UBAID
As recorded by the court registry
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UBAID
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