IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3953 of 2007()
1. MOOSAKOYA, S/O.MUHAMMED,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :05/12/2007
O R D E R
J.B. Koshy & K.Hema, JJ.
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Crl.R.P. No. 3953 of 2007
—————————————
Dated this the 5th day of December, 2007
Order
Koshy,J.
A learned single Judge of this Court referred this matter
to the Division Bench as in the earlier judgment of this Court in Alavi
P.K. v. District Collector and others (ILR 2007 (4) Kerala 221 = 2007
(4) KHC 142) (same as Abdul Samad v. State of Kerala (2007 (4) KLT
473) while holding that section 102 of the Code of Criminal
Procedure is not applicable when vehicles transporting sand illegally
is seized under section 102 Cr. P.C. it was not brought to the notice
of this Court that under section 24 of the Kerala Protection of River
Banks and Regulation of Removal of Sand Act, 2001 (in short ‘the
Sand Act’) all offences are cognizable. If the offences are
cognizable, the police cannot refuse to register a crime when they
get information regarding the commission of a cognizable offence.
Consequently, police is bound to report the seizure of the vehicle to
the Magistrate having jurisdiction as provided under section 102 Cr.
P.C. At paragraph 6 of the judgment it was held as follows:
Crl.R.P.No.3953/2007 2
“6. Based on the decision of this court in
Rahim v. State of Kerala (2002 (3) KLT 340) it is
argued that as soon as the vehicle is seized,
report should be filed to the court under Section
102 of the Code of Criminal Procedure. We are
afraid that such an interpretation is not possible
because what is to be done with the seized
vehicle is very clearly mentioned under Rules 27
and 28. It is true that for imposition of penalty
like imprisonment and imposition of fine, only
court can take action on a complaint duly filed
and it is the power of the court to impose
imprisonment or fine under Section 20 of the
Act. For that seizure of the vehicle is not
necessary. Hence, vehicles which are
transporting sand illegally can be seized under
Section 23 of the Act and not under under
Section 102 of Cr.P.C. The power to seize is
given to revenue officials and Police officers and
when vehicles are seized under Section 23 of
the Act, the procedure to be followed is also
prescribed in the statutory rules framed under
the Act itself. It is a self contained Act. Further,
under which circumstances police officers
should seize the vehicles is specifically
mentioned in Section 102 Cr.P.C. and conditions
are different with regard to seizure of vehicle
involved in illegal sand mining which is made
illegal by the provisions of the Act and,
therefore, Section 102 Cr.P.C. is not applicable
when the vehicle is seized as per the provisions
of the Act. Hence, the decision in Rahim v.
State of Kerala (2002 (3) KLT 340) is not
correctly decided. As soon as the seizure is
effected, further procedures to be taken are
very specifically mentioned in Rules 27 and 28.
The above power is in addition to the power of
the court in imposing penalty under Section 20
and such offence can be taken cognizance by
the court only if authorised officer as mentioned
in Section 25 files a complaint and those twoCrl.R.P.No.3953/2007 3
provisions are clearly independent as legislature
thought it fit, if necessary to confiscate the
vehicle if the vehicle is involved in illegal sand
mining. Even though District Collector has got
power to confiscate the vehicle, rules provide
that on payment of the amount as fixed under
Rule 27(3), he is bound to release the
vehicle ………………”
In paragraph 5 of the order of reference, the learned single Judge
observed as follows:
“5. It is true that the Division Bench in
Alavi’s case has taken such a view. But then, it
appears that the attention of the Division Bench
was not brought to one aspect of the matter.
Under section 23 of the Act whoever transports
sand without complying with the provisions of
the Act is declared to be liable to be punished
and the vehicle used for the transportation is
also liable for seizure by the police or revenue
officials. The liability for punishment can arise
under section 20 of the Act as per which
whoever contravenes any of the provisions of
the Act or the Rules made thereunder is liable to
be punished with imprisonment for a term of
which may extend to two years or with fine
which may extend to twenty five thousand
rupees or with both. Under section 24 of the Act
all offences under the Act are declared to be
cognizable. Thus any person who is
transporting sand without complying with the
provisions of the Act is committing an offence
punishable under section 20 of the Act and
liable to be punished and so declared under
section 23 itself. Such offence being a
cognizable offence, in my view, the police
cannot refrain from registering a crime if they
happen to stumble upon a vehicle illegally
transporting sand in contravention of theCrl.R.P.No.3953/2007 4
provisions of the Act. If a complaint alleging the
commission of a cognizable offence is given to
an officer in charge of a police station, and such
officer as no other alternative except to register
a crime, then it is all the more necessary that a
police officer who comes across the commission
of a cognizable offence should register a crime.
In other words, every act of transporting of sand
without complying with the provisions of the Act
involves the commission of a cognizable offence
punishable under section 20 of the Act for which
the registration of crime is inevitable. If so, the
police officer who is bound to register a crime is
obliged under section 102 Cr.P.C. to report the
seizure of the vehicle to the Magistrate having
jurisdiction. In areas where the Special Act is
silent section 4 (2) Cr.P.C. should govern the
procedure obliging the police officer to comply
with section 102 Cr. P.C. Otherwise, the
Magisterial control over the police will be
rendered meaningless leading to unbridled
exercise of powers and consequent misuse of
authority by the police. This aspect of the
matter does not appear to have been
highlighted before the Division Bench.”
2. Section 24 of the Sand Act cannot be read in
isolation with section 25. We extract the above sections below:
“24. Offences under this Act to be
cognizable:- Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (Central
Act 2 of 1974), all offences under this Act shall
be cognizable.
25. Cognizance of offences:- No court
shall take cognizance of any offence punishable
under this Act, except upon a complaint in
writing made by a person authorised in this
behalf by the Government or the DistrictCrl.R.P.No.3953/2007 5
Collector or a Geologist of the Department of
Mining and Geology.”
3. A plain reading of the above provision will show that
even though by section 24 all offences under the Act are made
cognizable, no court can take cognizance of the offence except
upon a written complaint made by a person authorised in this behalf
by the Government of the District Collector or a Geologist of the
Department of Mining and Geology. A ‘complaint in writing’ by the
authorised officer etc. is the only condition for taking cognizance as
provided in section 25. If a police officer is authorised by the
Government, he may also file a complaint on the basis of which the
court may take cognizance. But, the court cannot take cognizance
of any offence punishable under the Sand Act on a police report
filed under section 173 (2) of the Cr. P.C. after investigation by
police. Section 20 deals with penalty for the offence. Maximum
period of imprisonment, apart from fine that can be imposed, is only
two years. In Alavi’s case we have considered the scope of section
23 read with The Kerala Protection of River Banks and Regulation of
Removal of Sand Rules (for short ‘the Rules’) and held that the Act
and Rules should be read together and harmoniously interpreted
and Collector has got power to confiscate and sell the vehicle if the
Crl.R.P.No.3953/2007 6
amount fixed by him is not paid to the River Management Fund
within a reasonable time. Statutory rules framed in accordance
with the Act also can be referred in interpreting the Statute so long
as rules are not inconsistent with the Act. (See: Gujarat Pradesh
Panchayat Parishad v. State of Gujarat ((2007) 7 SCC 718). For an
effective understanding, we may extract section 23 of the Act, rule
27 and rule 28 of the Rules:
“Section 23. Confiscation of vehicles:-
Whoever transports sand without complying
with the provisions of this Act shall be liable to
be punished and the vehicle used for the
transaction is liable for seizure by the police or
Revenue officials.”
“Rule 27. Procedure for confiscation of
vehicle:- (1) The police or revenue officials shall
seize the vehicle used for transporting sand in
violation of the provisions of the Act and these
Rules.
(2) In the case of seizure of vehicle under
sub-section (1), a mahazar shall be prepared in
the presence of two witnesses regarding the
vehicle and one copy of the same shall be given
to the person possessing the vehicle at the time
of seizure and one copy to the District Collector.
(3) The vehicle may be returned if the
owner of the vehicle or the possessor remits an
amount towards River Management Fund equal
to the price fixed by the District Collector with
fine within seven days of seizure.”
Crl.R.P.No.3953/2007 7
Rule 28. Sale of the vehicle seized:- (1)
The District Collector shall consider every
objection submitted within seven days of seizure
of any vehicle under rule 27 and the decision of
District Collector thereon shall be final.
(2) In the case of sale of the vehicle under
sub-section (1), if the fine and amount under
sub-section (3) of section 27 of these rules has
not been remitted, the District Collector shall
sell the vehicle by auction.
(3) The amount received from auction
under sub-section (2) shall be credited to the
River Management Fund after deducting the
expenditure of auction.”
Rules 27 and 28 clearly lay down the procedure to be complied with
by the police officer or revenue officer who seizes the vehicle for
illegal transport of sand. The police officers and revenue officials
shall seize the vehicle used for illegal transportation of sand under
Rule 27 of the Rules. Under section 23 not only police officers, but
also revenue officers may seize such vehicles. After seizure what is
to be done with the vehicle and procedure to be adopted by the
officers are clearly laid down in rules 27 and 28. The seizure is,
therefore, to be effected under the provisions contained in the Sand
Act and Rules and not under section 102 Cr. P.C. On seizure, the
following procedures have to be complied with:
Crl.R.P.No.3953/2007 8
1. The officer who who is seizing the vehicle
should prepare a mahazar.
2. The said mahazar should be signed by two
witnesses.
3. A copy of the mahazar should be given to the
person possessing the vehicle at the time of seizure.
4. A copy of the mahazar should be given to the
District Collector.
5. The owner of the vehicle or the person from
whom the vehicle was seized can file objection.
6. The District Collector is bound to consider the
objection filed within seven days of seizure.
7. In Alavi’s case, we have also held that as part
of principles of natural justice, District Collector should
give an opportunity of hearing also to the person who
filed the objection.
8. The District Collector is bound to take a
decision. If the vehicle is not found involved in illegal
transport of the same, he is bound to return the same.
Crl.R.P.No.3953/2007 9
9. If it is found that the vehicle was transporting
sand illegally, he has to fix an amount equivalent to the
prize to be paid to the River Management Fund.
10. The District Collector is bound to return the
seized vehicle if the amount fixed by the Collector is
paid by the owner in possession of the vehicle as the
case may be.
11. If the amount fixed is not paid within a
reasonable time, he can sell the vehicle in auction.
12. The amount realised from the auction shall be
credited to the River Management Fund.
4. A plain reading of the Sand Act and Rules together
will show that in the matter or seizure, no report need be filed to
the Magistrate as special procedure is laid down when seizure is
effected in view of section 23 of the Act. There is no statutory
compulsion for filing such a report or producing the vehicle before
the Magistrate under any of the provisions contained in the Cr.P.C.
5. It is true that ‘offence’ as defined under section 2 (n)
of the Cr.P.C. includes offences mentioned in special law also.
Sections 4 and 5 of Cr.P.C. make the procedure laid down in the
Code applicable to all offences under the Indian Penal Code unless
Crl.R.P.No.3953/2007 10
special statute provides a special or separate procedure. Sections 4
and 5 of Cr. P.C. are as follows:
“4. Trial of offences under the Indian
Penal Code and other laws:- (1) All offences
under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall
be investigated, inquired into, tried, and
otherwise dealt with according to the same
provisions, but subject to any enactment for the
time being in force regulating the manner or
place of investigating, inquiring into, trying or
otherwise dealing with such offences.
5. Saving:- Nothing contained in this Code
shall, in the absence of a specific provision to
the contrary, affect any special or local law for
the time being in force, or any special
jurisdiction or power conferred, or any special
form of procedure prescribed, by any other law
for the time being in force.”
It was held by the Apex Court in Khatri and others v. State of Bihar
and others (AIR 1981 SC 1068) that in view of section 4 of Cr.P.C.
the provisions of the Criminal Procedure Code are applicable when
the offence under the Indian Penal Code or under any other law is
being investigated or enquired or proceeded with trial or otherwise
dealt with. But, if a special law provides a special procedure, that
procedure will prevail as held by the Apex Court in Directorate of
Crl.R.P.No.3953/2007 11
Enforcement v. Deepak Mahajan and another (AIR 1994 SC 1775)
and A.R. Antulay v. Ramdas Sriniwas Nayak and another (AIR
1984 SC 718). Apex Court in Major G.S. Sodhi v. Union of India
(1991 Crl.L.J. 1947 SC) held that when there is a special enactment
in force relating to the manner of investigation, enquiry or
otherwise dealing with the offence, the general power under the
Code is subject to such special enactment and in interpreting the
scope of such statute that dominate purpose of enacting the statute
also has to be borne in mind. (See also: Jomon v. State of Kerala
(1987 (2) Crimes 920) and Sukhdev Singh Sodhi v. The Chief Justice
and Judges of the Pepsu High Court (1954 Crl.L.J.460 SC). When a
special power is conferred under section 23 of the Sand Act read
with Rules 27 and 28 for seizure and a specific procedure to be
followed after the seizure, that procedure has precedence over the
general power and procedure. The application of maxim Generalia
specialibus non derogant (general statements or provisions do
not derogate from special statements or provisions). On the other
hand, specialia derogant generalibus (special provisions
derogate from general). If a special provision or procedure is made
on certain matter, that matter is excluded from general provision as
held by the Supreme Court in Gadde Venkateswara Rao v.
Crl.R.P.No.3953/2007 12
Government of AP and others (AIR 1966 828). In Jasbir Singh v.
Vipin Kumar Jaggi and others (AIR 2001 SC 2734 at page 2743) it
was held by the Apex Court that section 64 of the NDPS Act will
prevail over section 307 Cr.P.C., 1974 as it is a special provision.
Same principle was followed in P.V. Hemalatha v. Kattamkandi
Puthiya Maliackal Saheeda (AIR 2002 SC 2445 at page 2451). In
this connection, we also refer to paragraphs 60 and 61 of the Apex
Court judgment in Ghaziabad Zilla Sahkari Bank Ltd. v. Addl. Labour
Commissioner and others (2007 AIR SCW 956).
6. Now, we shall consider the arguments based on
section 24 of the Sand Act making all offences under the Act
cognizable. A ‘cognizable offence’ is defined in section 2 (c) of
Cr.P.C. as follows:
“(c) ‘cognizable offence’ means an offence
for which, and ‘cognizable case’ means a case in
which, a police officer may, in accordance with
the First Schedule or under any other law for the
time being in force, arrest without warrant;”
Therefore, making the offences under the Sand Act cognizable,
police officers will get the power to arrest without warrant.
Chapter XI of Cr.P.C. deals with preventive action to be taken by
police to prevent cognizable offences. Chapter XII provides the
Crl.R.P.No.3953/2007 13
procedure for information in investigation of the offence by the
police. Section 154 (1) of Cr.P.C. reads as follows:
“154. Information in cognizable cases:-
(1) Every information relating to the commission
of a cognizable offence,if given orally to an
officer in charge of a police station, shall be
reduced to writing by him or under his direction,
and be read over to the informant; and every
such information, whether given in writing or
reduced to writing as aforesaid, shall be signed
by the person giving it, and the substance
thereof shall be entered in a book to be kept by
such officer in such form as the State
Government may prescribe in this behalf.”
Remedy of a person if police is not registering a case is mentioned
in section 154 (3). It was held by the Apex Court in State of
Haryana and others v. Ch: Bhajan Lal and others (AIR 1992 SC 604)
that in a cognizable case police officer is bound to record every
information relating to the commission of a cognizable offence and
to register a case. In paragraph 32, it is held as follows:
“32. It is, therefore, manifestly clear that
if any information disclosing a cognizable
offence is laid before an officer in charge of a
police station satisfying the requirements of
section 154 (1) of the Code, the said police
officer has no other option except to enter the
substance thereof in the prescribed form, that is
to say, to register a case on the basis of such
information.”
Crl.R.P.No.3953/2007 14
This view was reiterated by the Supreme Court in Ramesh Kumar v.
State (NCT of Delhi) and others (2006 AIR SCW 1021). There is
substantial difference between the term ‘cognizable offence’ and
‘cognizable case’ as can be seen from the definition under section 2
(c) of Cr.P.C. Chapter XII of Cr. P.C. provides for proceedings for
information to investigate a case. Section 156 provides for police
officer’s power to investigate and section 157 provides for
procedure for investigation and section 158 provides for filing of
final report. The above would show that police has to make
investigation after registering the case and file report to the
Magistrate. Chapter XIV and XV state how cognizance is taken by
Magistrates. In cognizable cases, cognizance may be taken on a
police report. Here, written complaint is to be filed by District
Collector or Geologist or authorised officer and in the absence of
such written complaint by authorised officer etc., no cognizance can
be taken, even if police registered an F.I.R.
7. It is argued by the learned Government Pleader that
‘cognizable offence’ means an offence for which a police officer may
arrest without warrant. Even if a crime is registered in respect of a
cognizable offence under the Sand Act, the matter cannot be
proceeded with and the offender cannot be punished under section
Crl.R.P.No.3953/2007 15
20 of the Sand Act, because as per section 25 of the Act no court
shall take cognizance of any offence punishable under this Act
except upon a complaint in writing made by a person authorised in
this behalf by the Government or the District Collector or a
Geologist of the Department of Mining and Geology. If the police
officers are also authorised officers, they can very well file a
complaint before the court, but, they need not file a final report
after investigation under section 173 (2) of Cr.P.C. Even when
police officer seizes the vehicle by using the power under section
23, Magistrate cannot take cognizance of the offence unless a
complaint is filed by the authorised officer etc. as provided under
section 25.
8. Assuming that being a cognizable offence in view of
section 24, on getting information by the police officer, he has to
register a case, that will not make obligation to follow section 102.
Seizure of the vehicle under section 23 of the Act can be done
either by the police officer or revenue officials. If revenue officials
seize the vehicle and report the matter to the District Collector
without intimation of police, question of filing F.I.R. or complying
with section 102 of Cr.P.C. will not arise. Section 102 is applicable
in the seizure of vehicle or property whether offence committed is
Crl.R.P.No.3953/2007 16
cognizable or non-cognizable. Section 102 of Cr.P.C. reads as
follows:
“102. Power of police officer to seize
certain property:- (1) Any police officer may
seize any property which may be alleged or
suspected to have been stolen, or which may be
found under circumstances which create
suspicion of the commission of any offence.
(2) Such police officer, if subordinate to
the officer in charge of a police station, shall
forthwith report the seizure to that officer.
(3) Every police officer acting under sub-
section (1) shall forthwith report the seizure to
the Magistrate having jurisdiction and where the
property seized is such that it cannot be,
conveniently transported to the Court or where
there is difficulty in securing proper
accommodation for the custody of such
property, or where the continued retention of
the property in police custody may not be
considered necessary for the purpose of
investigation, he may give custody thereof to
any person on his executing a bond undertaking
to produce the property before the Court as and
when required and to give effect to the further
orders of the Court as to the disposal of the
same.”
But for section 102, under general law, there is no power of the
police officer to seize the vehicle or property involved in a
suspected crime or stolen property. Section 102 confers power and
then prescribes the procedure to be adopted thereafter with regard
to the property seized as per the power conferred under section
Crl.R.P.No.3953/2007 17
102 (1). Here, the vehicle involved in the illegal transport of sand
is seized not under the power of the police or revenue officer under
section 102, but, under section 23 of the Sand Act read with Rule
27. Rules 27 and 28 prescribe the procedure to be adopted with
regard to seizure of vehicles. It is true that we judges while hearing
criminal matters mainly deal with offences under the Indian Penal
Code and there is a chance to be obsessed by the provisions of Cr.
P.C. notwithstanding the specific provisions in the special statute.
We have seen that generally Cr.P.C. is applicable during enquiry,
investigation and trial of offence under special Act also, but, if a
special procedure is provided, only that procedure is to be followed
while exercising power specifically given under the special Act. In
this connection, we refer to the decision of this Court in Sasidharan
v. Forest Range Officer (1999 (2) KLT 836) considering a case of
seizure of vehicle transporting illegal timber. Under section 52 (2)
of the Forest Act, 1961, power is given to the forest officers and
police officers to seize the transported timber or forest produce and
vehicles used for the same. Sub-section (2) specifically provides
that immediately on such seizure, a report of such seizure shall be
made to the Magistrate. Here, such a procedure is significantly
absent. This court held that failure on the part of the authorised
Crl.R.P.No.3953/2007 18
officer to report the seizure of the vehicle and timber to the
Magistrate will not affect the procedure for confiscation of the same
under section 61A of the Forest Act as power to confiscate is an
independent power for achieving the object of the Act. Power of
disposal or forfeiture of the property involved in the offence is
different from confiscation proceedings. Considering the provisions
of section 59-A (3) of the Forest Act, 1927, Apex Court in State of
W.B. v. Gopal Sarkar ((2002) 1 SCC 495) held that power of
confiscation of vehicle exercised by the forest officer is
independent of any proceedings of prosecution initiated in respect
of the forest offence committed. Here also, confiscation
proceedings is an independent power. Power to take criminal
prosecution upon written complaint is entirely different. In
Divisional Forest Officer v. G.V.Sudhakar Rao and others ((1985) 4
SCC 573), Supreme Court observed as follows:
“The conferral of power of confiscation of
seized timber of forest produce and the
implements etc. on the authorised officer under
sub-section (2-A) of section 44 of the Act on his
being satisfied that a forest offence had been
committed in respect thereof, is not dependent
upon whether a criminal prosecution for
commission of a forest offence has been
launched against the offender or not. It is a
separate and distinct proceeding from that of a
trial before the court for commission of anCrl.R.P.No.3953/2007 19
offence. Under sub-section (2) of section 44 of
the Act, where a Forest Officer makes a report of
seizure of any timber or forest produce and
produces the seized timber before the
authorised officer along with a report under
section 44 (2), the authorised officer can direct
confiscation to Government of such timber or
forest produce and the implements etc. if he is
satisfied that a forest offence has been
committed, irrespective of the fact whether the
accused is facing a trial before a Magistrate for
the commission of a forest offence under section
20 or 29 of the Act.”
In State of M.P. v. S.P. Sales Agencies and others ((2004) 4 SCC
448), the Apex Court held as follows:
“11. In the case of State of W.B. Gopal
Sarkar ((2002) 1 SCC 495) while noticing the
view taken in the case of G.V. Sudhakar Rao
((1985) 4 SCC 573) this Court ha reiterated that
the power of confiscation is independent of any
criminal prosecution for the forest offence
committed. This being the position, in our view,
the High Court has committed an error in
holding that initiation of confiscation proceeding
relating to Kattha was unwarranted as no
criminal prosecution was launched.”
9. We have seen that provisions prescribed under
section 20 of the Sand Act and seizure and confiscation proceedings
under section 23 of the Sand Act read with rules 27 and 28 of the
Sand Rules are independent provisions. Prosecution proceedings
can be commenced only upon filing a written complaint by the
authorised officer. Vehicles are seized under section 23 and not
Crl.R.P.No.3953/2007 20
under the powers given to police officer under section 102 and
separate provision is given under the Sand Act and Rules regarding
the procedure to be adopted after the seizure. Let us assume for
the time that being a cognizable offence, police is bound to register
the case and in view of section 102 Cr.P.C., seizure of the vehicle
was to be reported to the Magistrate then also, there is no power
for the Magistrate to release the property to the parties. Petitioner
wants interim release of the vehicle instead of being again
prosecuted apart from facing confiscation proceedings. He has not
approached the court with a request to prosecute him. Even if the
seizure is reported to the Magistrate, Chapter XXXIV is not
applicable. Chapter XXXIV (sections 451 to 459) is applicable to
disposal of property by the Magistrate. Section 457 prescribes that
the magistrate can make appropriate order for disposal of the
property or entrustment of the property to the person entitled
when the seizure is reported to the Magistrate. Here, property
seized under section 23 and Rule 27 (1) can only be disposed of as
provided under rules 27 an 28 of the Sand Rules and is liable to be
sold if the amount fixed by the Collector is not paid within a
reasonable time. In the case of seizure by police, mahazar shall be
prepared and a copy shall be given to the District Collector. The
Crl.R.P.No.3953/2007 21
Rules do not provide that the seizure shall be reported to the
Magistrate. Provision is made for return of the vehicle or its sale
under Rules 27 and 28.
10. In State of Karnataka v. K.Krishnan (AIR 2000 SC
2729), Supreme Court considered a similar question regarding the
seizure of the vehicle and forest produce used in connection with a
forest offence. Even though it was prescribed in the Karnataka
Forest Rules that the seizure of such vehicle and forest produce
should be reported to the magistrate’s court (akin to section 102),
Apex Court held that since there is power of confiscation by the
authorised officer, it cannot be released by the Magistrate until all
proceedings are over. Apex Court held as follows:
“Liberal approach in the matter with
respect to the property seized, which is liable to
confiscation, is uncalled for as the same is likely
to frustrate the provisions of the act. Before
passing an order for releasing the forest produce
or the property used in the commission of the
forest offence, the Authorised Officer or the
Appellate Authority has to specify the reasons
which justify such release, apparently, prima
facie excluding the possibility of such forest
produce or the property being confiscated
ultimately. Generally, therefore, any forest
produce and the tools, boats, vehicles, cattles,
etc., used in the commission of the forest
offence, which are liable to forfeiture, should not
be released. This, however, does not debar the
officers and the authorities under the ActCrl.R.P.No.3953/2007 22
including the Appellate Authority to pass
appropriate orders under the circumstances of
each case but only after assigning valid reasons.
The liberal approach in the matter would
perpetuate the commission of more offences
with respect to the forest and its produce which,
if not protected, is surely to affect the mother-
earth and the atmosphere surrounding it. The
courts cannot shut their eyes and ignore their
obligations indicated in the Act enacted for the
purposes of protecting and safeguarding both
the forests and their produce. The forests are
not only the natural wealth of the country but
also protector of human life by providing a clean
and unpolluted atmosphere. We are of the
considered view that when any vehicle is seized
on the allegation that it was used for committing
a forest offence, the same shall not normally be
returned to a party till the culmination of all the
proceedings in respect of such offence, including
confiscatory proceedings, if any.”
Same view was again expressed by the Supreme Court in State of
Karnataka v. K.A. Kunchindammed ((2002) 9 SCC 90). Apex Court
observed as follows:
“23. The Karnataka Forest Act is a special
statute enacted for the purpose of preserving
the forests and forest produce in the State. The
Scheme of the Act, as expressed in the sections,
is to vest power in the Authorised Officers of the
Forest Department for proper
implementation/enforcement of the statutory
provisions and for enabling them to take
effective steps for preserving the forests and
forest produce. For this purpose, certain powers
including the power of seizure, confiscation and
forfeiture of the forest produce illegally removed
from the forests have been vested exclusively inCrl.R.P.No.3953/2007 23
them. The position is made clear by the non
obstante clause in the relevant provisions giving
overriding effect to the provisions in the Act
over other statutes and laws. The necessary
corollary of such provisions is that in a case
where the Authorised Officer is empowered to
confiscate the seized forest produce on being
satisfied that an offence under the Act has been
committed thereof the general power vested in
the Magistrate for dealing with interim
custody/release of the seized materials under
Cr.P.C. has to give way. The Magistrate while
dealing with a case of any seizure of forest
produce under the Act should examine whether
the power to confiscate the seized forest
produce is vested in the Authorised Officer
under the Act and if he finds that such power is
vested in the Authorised Officer then he has no
power to pas an order dealing with interim
custody/release of the seized material. This, in
our view, will help in proper implementation of
provisions of the special Act and will help in
advancing the purpose and object of the statute.
If in such cases power to grant interim
custody/release of the seized forest produce is
vested in the Magistrate then it will be defeating
the very scheme of the Act. Such a
consequence is to be avoided.
24. From the statutory provisions and the
analysis made in the foregoing paragraphs the
position that emerges is that the learned
Magistrate and the learned Sessions Judge
were right in holding that on facts and in the
circumstances of the case, it is the Authorised
Officer who is vested with the power to pass
order of interim custody of the vehicle and not
the Magistrate. The High Court was in error in
taking a view to the contrary and in setting
aside the orders passed by the Magistrate and
the Sessions Judge on that basis.”
Crl.R.P.No.3953/2007 24
In Shambhu Dayal Agarwala v. State of W.B. ((1990) 3 SCC 549)
the Supreme Court interpreted sub-section (2) of section 6-A of the
Essential Commodities Act vis-a-vis section 6-E thereof and held
that there could be no question of releasing the commodity in the
sense of returning it to the owner or person from whom it was
seized even before the proceeding for confiscation stood
contemplated. The Hon’ble Supreme Court observed that such a
view would render clause (b) of section 7 (1) totally nugatory. It
was opined as follows at paragraph 8:
“It seems to us that section 6-E is intended
to serve a dual purpose, namely (i) to prevent
interference by courts etc. and (ii) to effectuate
the sale of the essential commodity under sub-
section (2) and the return of the animal, vehicle
etc. under the second proviso to sub-section (1)
of section 6-A. In that sense section 6-E is
complementary in nature.”
Following the above in State of W.B. and others v. Sujit Kumar Rana
((2004) 4 SCC 129), it was held that jurisdiction of Magistrate’s
court and High Court under section 482 for giving interim custody of
the vehicle seized, till confiscation proceedings are over is limited.
Same procedure shall apply here also. The Act itself was passed to
prevent illegal mining of sand from river causing environmental
problems. Therefore, Magistrate’s Court cannot grant interim
Crl.R.P.No.3953/2007 25
custody of the vehicle under the provisions of Cr. P.C. It was also
observed in the case that by way of judicial review, High court can
order return of the vehicle if the order of the authorised officer in
not releasing the vehicle is patently illegal resulting in failure of
justice.
11. There is also no reason for the apprehension by the
learned single Judge that if the procedure under section 102 is not
complied with, Magisterial control over the police will be rendered
meaningless leading to unbridlled exercise of power and
consequential misuse of the authority by police. As we have seen
earlier that vehicles involved in the offence under the Sand Act are
not seized by virtue of power under section 102 Cr.P.C. But, it is on
the basis of conferment of power under section 23 of the Sand Act
and Rule 27. Not only the police officers, but also revenue officers
are given power to seize the vehicles involved in illegal sand
transportation. Police or revenue officer on seizing the vehicle is
bound to give copy of the mahazar prepared for seizure to the
District Collector immediately and also to the person in possession
of the vehicle. The person in possession of the vehicle or any
person purported to be the owner has got a right to file objection
before the Collector to decide the matter and to fix the amount to
Crl.R.P.No.3953/2007 26
be paid to the River Management Fund for releasing the vehicle. If
the amount fixed is not paid within a reasonable time, Collector can
sell the property. Here, seizure will be brought to the notice of the
District Collector and there is no reason to apprehend that the
District Collector will not do his duty properly or will allow the police
to misuse the powers. The District Collector who is Executive
District Magistrate is entrusted with various powers under the
Cr.P.C. as well as under various Statutes. (See: Chapter X of Cr.
P.C. and provisions under Electricity Act etc.) It cannot be assumed
that only Judicial Magistrate can effectively control the police or
prevent any misuse of the powers by the police etc. In any event, if
they commit any illegality or impropriety, power of judicial review
is still there.
12. On the facts of this case, Magistrate rightly refused
to order for interim release of the vehicle. We see no reason to
interfere in the same. But, in view of the delay in fixing the amount
to be paid for release of the vehicle by the Collector, we have
already granted interim release of the vehicle on condition of
depositing Rs.25,000/- and executing a bond for producing the
vehicle before the Collector as and when required. It is for the
Crl.R.P.No.3953/2007 27
Collector to pass orders as provided under the Sand Act and Rules
made thereunder as expeditiously as possible.
The Criminal Revision Petition is disposed of.
J.B.Koshy
Judge
K. Hema
Judge
vaa
Crl.R.P.No.3953/2007 28
J.B. KOSHY AND
K.HEMA,JJ.
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Crl.R.P. No. 3953 of 2007
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Order
Dated:5th December, 2007