IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2714 of 2005
1. MOOSAKOYA, S/O.MUHAMMED,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
Dated : 31/08/2005
O R D E R
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Crl.M.C. Nos. 2714, 2716, 2717,@@
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2719, 2724, 2736 & 2748 of 2005.@@
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Dated this the 31st day of August, 2005@@
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O R D E R @@
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((HDR 0
CRMC.2714/05 etc.
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.HE 1
The petitioners are stated to be owners of goods
vehicles which were admittedly seized by the Police for
the alleged violation of the provisions contained in the
Kerala Protection of River Banks and Regulation of
Removal of Sand Act 2001 and the Rules thereunder. The
allegation against the petitioners appears to be that
they had transported sand in violation of the provisions
contained under the Act. However, the petitioners have
raised a definite contention that the transportation was
on the strength of passes issued by the local statutory
authority.
2. It is not in dispute that the vehicles are
now lying in the custody of the Police, though report
under Section 102 of the Code of Criminal Procedure has
been filed before the court of competent jurisdiction.
The petitioners had filed application before the learned
Magistrate for interim custody of their vehicles under
Section 457 Cr.P.C. The learned Magistrate rejected the
plea through a common order which is impugned in these
petitions.
3. The learned Magistrate dismissed the
applications since according to him, it would not be
proper to interfere with the jurisdiction of the District
Collector who has reportedly initiated "confiscation
proceedings" as contemplated under the Act. The learned
Magistrate took the view that the two conditions laid
down under Section 457 of the Code were not satisfied.
In this connection the learned Magistrate placed reliance
on a decision of a learned Single Judge of this Court in
Thimothy v. State of Kerala (1987 (1) KLT 82. The@@
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learned Magistrate went on to hold that since the dictum
laid down in the above decision was not "over ruled or
distinquished, in the later decision in Rahim v. State@@
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of Kerala (2002 (3) KLT 340) the jurisdiction under@@
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Section 457 of the Code cannot be invoked. I am afraid,
the learned Magistrate has proceeded at a palpably wrong
tangent.
4. In this context it is necessary to refer to
the relevant provisions of the Act which deals with the
power of the District Collector to deal with the vehicles
which are allegedly involved in illegal transportation of
sand. Section 23 of the Act reads thus:
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"23. Confiscation of vehicles:- Whoever@@
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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."
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The above provision only postulates that the vehicle used
for transportation of sand without complying with the
provisions of the Act shall be liable for seizure by the@@
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Police or the Revenue Officials, apart from the violator
being liable for punishment. Though the heading of the
section indicates confiscation, the body of the section
refers only to seizure.
5. Rule 27 of the Rules also does not refer to
any power of confiscation, though the heading of the rule
is otherwise. Rule 27 reads thus:
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"27. Procedure for confiscation of vehicle:-@@
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(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."
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Sub-rule (3) of Rule 27 postulates that the vehicle may be
returned to its owner, if he or the possessor thereof
remits an amount towards the River Management Fund, equal
to the price fixed by the District Collector with fine
within 7 days of seizure.
6. A conjoint reading of Section 23 and Rule 27
undoubtedly shows that the District Collector is not
vested with the power to confiscate a vehicle. It is true
that the District Collector can recover from the owner of
the vehicle an amount equal to the price fixed by him
towards the River Management Fund. But the vehicle is
liable to be returned to the owner if he remits the amount
fixed by the District Collector. Thus it is evident that
the Legislature never intended to invest any power with
the District Collector for confiscation of a vehicle, even
if it is found to have been used for illegal
transportation of sand.
7. Confiscation is "the seizure of private
property by the Government without compensation to the
owner, often as a consequence of conviction for crime, or
because possession or use of the property was contrary to
law" (Black's Law Dictionary, Sixth Edition). The term
"seizure" implies taking or removal of something from the
possession, actual or constructive, of another person or
persons." (ibid)
8. I have referred to the above statutory
provisions in the Act and the Rules only to indicate that
the power vested with the District Collector is only to
impose on the owner a liability to pay an amount towards
River Management Fund. However, the learned Magistrate
seems to have proceeded as though the District Collector
is vested with the power to confiscate the vehicle. He
has mentioned in the order that the District Collector has
reportedly initiated "confiscation proceedings". But as
noticed earlier, the Collector does not have any power to
order confiscation. His power is confined to recovery of
amounts towards the River management Fund. In any view of
the matter, it is clear that if a report of seizure has
been made by the Police before the Court under Section 102
Cr.P.C, the court is empowered to deal with it as provided
under the Code. However, the release of the vehicle by
way of interim custody to its owner shall be subject to
the proceedings contemplated under section 23 of the Act,
read with Rule 27 of the Rules.
9. Having heard learned counsel for the
petitioners and the learned Public Prosecutor, I am
satisfied that the petitioners are entitled to get custody
of their respective vehicles under Section 457 of the
Code. The learned Magistrate shall release the vehicles
to the petitioners on appropriate conditions based on the
value of the vehicles, with two sureties in the like sum.
Petitioners shall also file affidavits before the court
below undertaking to produce the vehicles as and when
directed and also not to transfer, alienate or dismantle
the same till the proceedings are completed. It is made
clear that release of the vehicles will be subject to the
proceedings pending before the District Collector or any
other authority under the Act and the Rules.
Crl.M.Cs are disposed of in the above terms.
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