Allowed

Susairaj v. the Inspector of Police

Madras HC25 Mar 2024CRL RC/349/2024

Case brief

AI extract

What is this about?

Owner of a tipper lorry seized in an illegal sand transport case sought return of the vehicle after the Magistrate dismissed his interim custody application under Section 451 Cr.P.C. The High Court allowed the revision, set aside that order and directed return of the vehicle on conditions including a non-refundable deposit, bond and undertaking against illegal use.

What did the court decide?

Vehicle TN-36-P-8580 ordered returned to petitioner on conditions including Rs.1,50,000 non-refundable deposit before the Tahsildar, personal bond of Rs.10,000 with two sureties, undertaking, no alien

Susairaj Vs the Inspector of Police — Mining and Natural Resources | Madras HC (2024)

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Crl.R.C.No.349 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 25.03.2024

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CORAM

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THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

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Crl.R.C.No.349 of 2024

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Susairaj ... Petitioner Vs. The Inspector of Police, Thiyagadurgam Police Station, Kallakurichi District. (Crime No.598/2023). ... Respondent

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PRAYER: Criminal Revision Petition filed under Sections 397 r/w. 401 of Criminal Procedure Code, to set aside the order dated 29-01-2024 made in Crl.M.P.No.241 of 2024 on the file of the Judicial Magistrate-II, Kallakurichi and consequently direct the respondent Police to return the petitioner vehicle Ashok Leyland Tipper lorry bearing Registration No.TN36-P-8580, Engine No.LAH653974 and Chassis No.MB1G3NYC9ARKD2258 by allowing this Criminal Revision Petition.

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For Petitioner : Mr.V.Gunasekar For Respondent : Mr.S.Raja Kumar Additional Public Prosecutor

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ORDER

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The petitioner is the owner of the vehicles viz., Ashok Leyland

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Tipper lorry bearing Reg.No.TN-36-P-8580, has filed a petition under Sections 451 Cr.P.C., in Crl.M.P.No.241 of 2024 before the learned Judicial

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Magistrate No.II, Kallakurichi. The learned Magistrate vide order, dated 29.01.2024 dismissed the said petition, against which, the present Criminal Revision Case is filed.

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2.The contention of the petitioner is that the petitioner is hiring his Ashok Leyland Tipper lorry bearing Reg.No.TN-36-P-8580 and making his earnings. The vehicle is under hypothecation with Shreeram Finance Limited. The petitioner is renting out the said vehicle and from the earnings, he is sustaining himself and also paying the monthly EMI. This being so, the vehicle was seized by the respondent Police in Crime No.598 of 2023, for offence under Section 379 IPC r/w 24(1) of Mines & Minerals (Development & Regulation) Act, 1957 on 18.11.2023. The vehicle is said to have transported gravel sand which were available in the surfaces and not by any mining. 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, he is

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unable to continue his 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 learned Additional Public Prosecutor appearing for the respondent Police on the other hand submitted that on 18.11.2023 at about 09.00 hours when the defacto complainant viz., Assistant Geologist, Geology and Mines, Villupuram along with his team had conducted the vehicle checkup at National Highway, Pudhumampattu, the defacto complainant stopped one Ashok Leyland Tipper lorry bearing Reg.No.TN36-P-8580 and on searching, the said vehicle was found in possession of gravel sand which was illegally transported by the accused. On enquiry, it came to know that the tipper lorry belongs to the petitioner. On the complaint, FIR in Crime No.598 of 2023, for offence under Section 21(1) of the Mines and Minerals (Development & Regulation) Act registered on 18.11.2023. On further enquiry, it was found that the petitioner is the owner of the tipper lorry and he hired the same to others for mining river sand and minerals. Hence, the vehicle was seized. He further submitted that the if the

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vehicle is handed over to the petitioner, he 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

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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 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

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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

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the petitioner. The respondent police is directed to return the vehicle,

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Ashok Leyland Tipper lorry bearing Reg.No.TN-36-P-8580 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 and Fifty Thousand only) for Ashok Leyland Tipper lorry bearing Reg.No.TN-36-P-8580 before the jurisdictional Tahsildar as non-refundable deposit. After receipt of the above said two payment, the same will have to be deposited by the Tahsildar, to the credit of the District Mines and Minerals Foundation Trust, Kallakurichi as nonrefundable 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 No.II, Kallakurichi. 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 use the vehicles 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

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respondent/trial Court is at liberty to confiscate the vehicles;

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

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(v) The petitioner shall take photograph of the vehicles 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 29.01.2024 passed by the learned Judicial Magistrate No.II, Kallakurichi in Crl.M.P.No.241 of 2024 is set aside.

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25.03.2024

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

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