Allowed

Suriyakala B v. State Rep. by

Madras HC11 Mar 2024CRL RC/195/2024

Case brief

AI extract

What is this about?

Owner sought return of her Eicher lorry seized for alleged illegal sand transport under Sections 430 and 379 IPC after the Magistrate dismissed her application. Following a recent batch order on release of sand-mining vehicles, the High Court set aside the dismissal and directed return subject to deposit, bond, undertaking and non-alienation conditions.

What did the court decide?

Vehicle TN-87-E-3263 ordered returned to petitioner on conditions (Rs.1,50,000 deposit, bond with two sureties, undertaking, no alienation); impugned order dated 22.01.2024 set aside.

Suriyakala B Vs State Rep. by — Criminal Trial and Appeal | Madras HC (2024)

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Crl.R.C.No.195 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 11.03.2024

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CORAM

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THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

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Crl.R.C.No.195 of 2024

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Suriyakala ... Petitioner

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Vs.

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State Rep by The Inspector of Police, Sriperumpudur Police Station, Kancheepuram District. Crime No.1295/2023 ... Respondent

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PRAYER: Criminal Revision Petition filed under Sections 397 and 401 of Criminal Procedure Code, to set aside the order passed in Crl.M.P.No.210 of 2024 dated 22.01.2024 on the file of the Judicial Magistrate, Sriperumpudur, Kancheepuram District and direct the respondent to release Eicher Vehicle bearing registration No.TN-87-E-3263 which was seized in connection with Crime No.1295 of 2023 on the file of the respondent police to the petitioner.

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Crl.R.C.No.195 of 2024

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For Petitioner : Mr.M.Manimaran For Respondent : Mr.S.Raja Kumar Additional Public Prosecutor

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ORDER

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The petitioner, owner of the Eicher Vehicle bearing registration No.TN-87-E-3263 filed a petition seeking return of property before the learned Judicial Magistrate, Sriperumpudur in Crl.M.P.No.210 of 2024. The Trial Court by order dated 22.01.2024 dismissed the same. Against which, the present revision petition is filed.

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2.The contention of the petitioner is that the petitioner is hiring her

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Eicher vehicle bearing registration No.TN-87-E-3263 and making her earnings. The petitioner purchased the vehicle under hypothecation with Indusind Bank Limited. The petitioner is renting out her vehicle and from the earnings, she is sustaining herself and also paying the monthly EMI. This being so, the vehicle was seized by the respondent police in connection with Crime No.1295 of 2023 on 03.11.2023 for the offence under Sections 430 and 379 IPC. Admittedly, the petitioner was not near the vehicle and she had not given any instruction to use the vehicle to transport the savudu

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sand illegally. He further submitted that the vehicle is kept in open space exposing to vagaries of weather, further detention would make the vehicle unusable, rusted and it would become a scrap. The petitioner is ready to comply with any condition that this Court may impose while granting return of vehicle. He would further submit that due to detention of vehicle, she is unable to continue her routine work and greatly impaired. Further, the petitioner is also forced to pay monthly EMI, otherwise the vehicle would be seized by the Financier. Hence, he prays for return of property.

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3.The Additional Public Prosecutor appearing for the respondent Police on the other hand submitted that on 03.11.2023 at about 1.00 p.m., the Sub-Inspector of Police attached to respondent police along with the police team went on patrol duty, at that time near the grave yard of Vengadu Village, a JCB bearing registration No.TN-87-D-6271 and a tipper lorry bearing registration No.TN-87-E-3263 were excavating and transporting 4 units of savudu sand illegally and on seeing the police, the drivers abandoned the vehicle and ran away. On enquiry, it was found that the vehicle is owned by the petitioner and she is using the vehicle for collecting

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the sand illegally and selling the same at higher rate. Hence, the vehicle was seized. He further submitted that the if the vehicle is handed over to the petitioner, she would indulge in similar offences. Further, the learned Additional Public Prosecutor made his objections based on the orders passed by this Court in Rev.Appl.Writ(MD).Nos.80 to 82 of 2019, W.P(MD).No.19936 of 2017, W.P(MD).Nos.7595 and 21485 of 2018, W.P(MD).No.14341 of 2022 and Crl.RC.(MD).No.470 of 2023. Hence, he prayed for dismissal of the revision petition.

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4.This Court in Crl.O.P.No.646 of 2024 batch dated 29.01.2024 [Annadurai vs. The Inspector of Police, Kurisilapet Police Station, Thirupathur District] , considered the objections and referring to the orders of the Single Judge, Division Bench and Full Bench of this Court and the decisions of the Apex Court, yielding to the command of the Hon'ble Supreme Court under Article 141 of the Constitution of India, has held as follows:

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“ 30.In view of the aforesaid discussion, the legal position can be summarised as under:

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(a)The power to initiate confiscation proceedings and issue directions for release/disposal of the property under Section 21(4-A) of the MMDR Act, 1957 lies with the Court and not with any other authority;

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(b)Section 21(4-A) expressly states that the Court competent to initiate confiscation proceedings and issue directions for the disposal of the seized material is the court competent to take cognizance of the offence under Section 21(1) of the Act;

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(c)The Special Court constituted under Section 30-B of the MMDR Act,1957 is invested with the powers of a Court of Session under Section 30-C. Consequently, the Special Court being a Court of Session cannot directly take cognizance of an offence under the Act in view of the bar contained in Section 193 Cr.P.C and in the light of the law laid down in paragraph 38 of the decision in Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62 ;

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(d)As a consequence, a complaint under Section 21 of the MMDR Act, 1957 can be filed only before the jurisdictional Magistrate empowered to take cognizance of the offence ( State (NCT of Delhi) v. Sanjay , (2014) 9

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SCC 772, Kanwar Pal Singh v. State of U.P., (2020) 14 SCC 331 and Jayant v. State of M.P., (2021) 2 SCC 670), and not before the Special Court;

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(e)Ex-consequenti, the Court for the purposes of Section 21(4-A) is the Court of the Magistrate since it is that Court which is empowered to take cognizance of the offences under Section 21(1). Hence, an application for release of vehicle will lie only before the jurisdictional Magistrate;

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(f) The decisions of this Court in Muthu v District Collector (2018 SCC Online Mad 13985), the order passed in review dated 09.09.2019, the decision of the Full Bench in S. Kumar v District Collector (2023) 3 MLJ (Cri) 536 and that of the learned single judge Ramar v The State (Cr R.C MD 470 of 2023) dated 11.10.2023, to the extent that it is inconsistent with the decisions of the Supreme Court in State (NCT of Delhi) v. Sanjay , (2014) 9 SCC 772, Kanwar Pal Singh v. State of U.P., (2020) 14 SCC 331 and Jayant v. State of M.P., (2021) 2 SCC 670 and paragraph 38 of the decision in Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62, as discussed above, do not lay down the correct law. ”

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5.In view of the above, this Court finds that the vehicle is kept in open space exposing to vagaries of weather get rusted and the value of the vehicle get diminished. Hence, this Court is inclined to return the vehicle to the petitioner. The respondent police is directed to return the vehicle, viz., Eicher vehicle bearing registration No.TN-87-E-3263 to the petitioner on the following conditions:

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(i) The petitioner shall deposit a sum of Rs.1,50,000/(Rupees One Lakh Fifty Thousand only) before the jurisdictional Tahsildar as non-refundable deposit. After receipt of the above said amount, the same will have to be deposited by the Tahsildar, to the credit of the District Mines and Minerals Foundation Trust, Kancheepuram as non- refundable deposit;

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(ii) The petitioner shall execute a personal bond for a sum of Rs.10,000/- [Rupees Ten Thousand only] with two sureties each, for a like sum to the satisfaction of the learned Judicial Magistrate, Sriperumpudur. The petitioner and the sureties shall affix their photographs and give the copies of their Aadhaar Card;

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(iii) The petitioner shall give an undertaking before the respondent/ authority concerned stating that she will not

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use the vehicle in question for any illegal activities in future and shall produce the same as and when required by the respondent and also the trial Court, failing which the respondent/trial Court is at liberty to confiscate the vehicle;

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(iv) The petitioner shall not alienate the vehicle in question till the disposal of the proceedings before the authority concerned;

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(v) The petitioner shall take photograph of the vehicle and submit the same along with Compact Disc duly certified under Section 65-B of the Indian Evidence Act, 1872;

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(vi) The petitioner is also directed to participate in the enquiry to be conducted by the respondent.

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6.Accordingly, the Criminal Revision Petition stands allowed and the impugned order dated 22.01.2024 passed by the learned Judicial Magistrate, Sriperumpudur in Crl.M.P.No.210 of 2024 is set aside.

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11.03.2024

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Index : Yes/No Speaking Order/Non Speaking Order Neutral Citation: Yes/No

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cse

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