Allowed

Dineshkumar v. The State rep by its

Madras HC26 Mar 2024CRL RC/412/2024

Case brief

AI extract

What is this about?

Owner sought interim custody of his tipper lorry seized in Crime No.23 of 2024 under Sections 430 and 379 IPC for transporting graval sand without permit. Following the Court's earlier ruling on jurisdiction over release applications, the revision petition was allowed with conditional directions.

What did the court decide?

Vehicle TN-31-AA-4966 ordered returned on conditions including Rs.1,50,000 deposit, bond with two sureties, undertaking, no alienation, certified photographs, enquiry participation.

Dineshkumar Vs The State rep by its — Criminal Trial and Appeal | Madras HC (2024)

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Crl.R.C.No.412 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.412 of 2024

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Dhineshkumar ... Petitioner

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Vs.

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The State rep. by The Inspector of Police, Aladi Police Station, Cuddalore District. Crime No.23 of 2024 ... 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 passed by the learned Judicial Magistrate No.II, Virudhachalam in Crl.M.P.No.4702 of 2024 dated 14.02.2024 and subsequently grant custody of vehicle Ashok Leyland lorry bearing registration No.TN-31-AA-4964.

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For Petitioner : Ms.R.Raji 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.412 of 2024

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ORDER

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The petitioner is the owner of the vehicle viz., Ashok Leyland Tipper Lorry bearing Reg.No.TN-31-AA-4964, has filed a petition in Crl.M.P.No.4702 of 2024 before the learned Judicial Magistrate No.II, Vridhachalam. The learned Magistrate vide order, dated 14.02.2024 dismissed the said petition, against which, the present Criminal Revision Case is filed.

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2.The contention of the learned counsel for the petitioner is that the case projected against the petitioner is that the driver of the lorry, Narayanamoorthy/A1 on 28.01.2024 was found transporting 4 units of graval sand without valid permit. The vehicle was intercepted by the revenue authorities and they found the vehicle transporting graval sand without permit. Further, on enquiry the driver of the vehicle informed that the owner of the vehicle is the petitioner and hence, the petitioner was also arrayed as accused. He would submit that the petitioner was not present when the vehicle is used for such transportation. The petitioner is renting out his vehicle, viz., Ashok Leyland Tipper Lorry bearing Reg.No.TN-31-

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

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Crl.R.C.No.412 of 2024

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AA-4964 and from the earnings, he is sustaining himself. This being so, the vehicle was seized by the respondent Police in Crime No.23 of 2024, for offence under Sections 430 and 379 IPC. 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. Hence, he prays for return of property.

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3.The learned Additional Public Prosecutor filed his counter and submitted that on 29.01.2024 at about 12.00 hours, when the Sub Inspector of Police was in station duty, at that time, the defacto complainant/Village Administrative Officer lodged a complaint stating that on 28.01.2024 at about 11.00 p.m., a special team headed by RDO along with this team conducted vehicle check at Vridhacalam to Palakottai, A.Kottarakuppam nearby Anjaneyar Kovil, at that time, they stopped a vehicle, Ashok Leyland Tipper Lorry bearing Reg.No.TN-31-AA-4964, conducted search and found the vehicle was in possession of 4 units of Graval sand. During

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Page No.3 of 10

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

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Crl.R.C.No.412 of 2024

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enquiry, it came to know that the owner of the vehicle is the petitioner. Thereafter, a case was registered in Crime No.23 of 2024 for the offence under Sections 430 and 379 IPC and the vehicle was seized. 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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Page No.4 of 10

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Crl.R.C.No.412 of 2024

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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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Crl.R.C.No.412 of 2024

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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., Ashok Leyland Tipper Lorry bearing Reg.No.TN-31-AA-4964 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, Cuddalore District 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 No.II, Virudhachalam. 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

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Crl.R.C.No.412 of 2024

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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

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impugned order dated 14.02.2024 passed by the learned Judicial Magistrate No.II, Virudhachalam in Crl.M.P.No.4702 of 2024 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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