Allowed

Panneer v. State Rep.by

Madras HC26 Mar 2024CRL RC/381/2024

Case brief

AI extract

What is this about?

Revision against refusal to return a seized tractor used to transport sediment sand without permit. Following the court's earlier decision on MMDR confiscation jurisdiction, the High Court ordered conditional release of the vehicle to its owner subject to deposit, bond and undertaking.

What did the court decide?

Impugned order set aside; Swaraj 744 XT Tractor TN-15-MA-5164 directed to be returned to petitioner on conditions including Rs.50,000 deposit, bond, undertaking and photographs.

Panneer Vs State Rep.by — Mining and Natural Resources | Madras HC (2024)

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Crl.R.C.No.381 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 26.03.2024

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CORAM

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THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

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Crl.R.C.No.381 of 2024

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Panneer ... Petitioner Vs.

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State rep. By The Inspector of Police, Sankarapuram Police Station, Kallakurichi District. ... 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 by the learned Judicial Magistrate, Sankarapuram, Kallakurichi District in Crl.M.P.No.7565 of 2023 dated 28.12.2023.

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For Petitioner : Mr.S.J.Raja Janakiraman For Respondent : Mr.S.Raja Kumar Additional Public Prosecutor

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Page No.1 of 10

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https://www.mhc.tn.gov.in/judis

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Crl.R.C.No.381 of 2024

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ORDER

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The petitioner is the owner of the vehicle viz., Swaraj Tractor bearing Reg.No.TN-15-MA-5164, has filed a petition under Section 457 of Cr.P.C., in Crl.M.P.No.7565 of 2023 before the learned Judicial Magistrate, Sankarapuram, Kallakurichi District. The learned Magistrate vide order, dated 28.12.2023 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 Swaraj 744 XT Tractor bearing registration No.TN-15-MA-5164 and making his earnings. The vehicle is under hypothecation with MMFSL. The petitioner is renting out his 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.431 of 2023, for offence under Section 379 IPC on 04.07.2023. The vehicle is said to have transported sediment sand without permit. Thereafter, a case in Crime No.431 of 2023 for the offence under Section 379 IPC registered. He

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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 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 filed his counter and submitted that on 04.07.2023, when the Sub Inspector of Police along with this Police team were in patrol duty at Mukkanur Village Ananthangal river, at that time, they stopped JCB bearing registration No.TN-32-AH-9324, Sonalika Tractor bearing registration No.TN-15-T-6719 and Swaraj 744 XT Tractor bearing registration No.TN-15-MA-5164 and conducted search. On seeing the police, A1 to A3 tried to escape from them and thereafter, the complainant seized the vehicle and found that they transported sediment sand without valid permission. During enquiry, A1 to A3 were arrested and

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Crl.R.C.No.381 of 2024

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the petitioner is arrayed as A6. 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

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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 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

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Crl.R.C.No.381 of 2024

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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, viz., Swaraj 744 XT Tractor bearing registration No.TN-15-MA-5164 to the petitioner on the following conditions:

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(i) The petitioner shall deposit a sum of Rs.50,000/(Rupees 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, Kallakurichi 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, Sankarapuram, Kallakurichi District. 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 he will not use the vehicle in question for any illegal activities in future and shall produce the same as and when required by the

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Crl.R.C.No.381 of 2024

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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 28.12.2023 passed by the learned Judicial Magistrate, Sankarapuram, Kallakurichi District in Crl.M.P.No.7565 of 2023 is set aside.

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26.03.2024

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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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1.The Inspector of Police, Sankarapuram Police Station, Kallakurichi District.

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2.The Judicial Magistrate, Sankarapuram, Kallakurichi District

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3.The Public Prosecutor, High Court, Madras.

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Page No.9 of 10

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Crl.R.C.No.381 of 2024

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M.NIRMAL KUMAR, J.

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cse

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26.03.2024

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Page No.10 of 10

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https://www.mhc.tn.gov.in/judis

Panneer v. State Rep.by

Case brief

What is this about?

What did the court decide?

Panneer v. State Rep.by

Case brief

What is this about?

What did the court decide?

What the court decided

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