IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2643 of 2008()
1. SINEESH K.S., S/O.SREEDHARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.M.R.SARIN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :15/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------
CRL.R.P. NO. 2643 OF 2008
------------------------------------------
Dated this the 15th day of October, 2008
O R D E R
Learned counsel appearing for petitioner submitted that
District Collector, Ernakulam has no power to impose a fine and
direct release of the vehicle on depositing a fine and therefore
Judicial First Class Magistrate, Aluva should have granted
interim custody of the vehicle in C.M.P.2105 of 2008 filed by the
petitioner. Learned counsel submitted that in such
circumstances the order passed by the learned Magistrate is to
be quashed.
2. Learned public prosecutor submitted that no crime is
registered and the District Collector has already passed an order
imposing fine on the petitioner and directing release of the
vehicle, and if petitioner is aggrieved against that order, he has
to challenge the same and there is no illegality in the order
passed by the learned Magistrate and revision petition is to be
dismissed.
3. Learned counsel relied on the decision of this Court in
Ahammed Kutty v. State of Kerala (2008 (1) KLT 1068)
CRRP2643/08 2
and argued that District Collector is not competent to pass an
order for confiscation and under section 457 of Code of Criminal
Procedure Magistrate is entitled to grant interim custody of the
vehicle and therefore the order is to be quashed. It was also
argued that under section 102(3) of Code of Criminal Procedure,
when the vehicle is seized the matter has to be reported to the
Magistrate and the fact that it is not reported will not disable
the Court to exercise the power under section 457 of Cr.P.C. and
therefore the order is to be quashed.
4. Petition was filed under 457 of Cr.P.C. before the
Magistrate to release the vehicle KL-7/AU 414 contending that
the vehicle was seized by Sub Inspector of police, Thrikkakara
for illegal river sand mining and transportation, on 28.11.2007.
Section 457 of Code of Criminal Procedure provides the
procedure in respect of property seized by police. Under sub
section (1), whenever the seizure of property by any police
officer is reported to a Magistrate under the provisions of the
Code and such property is not produced before a Criminal Court
during an inquiry or trial, Magistrate can pass order as he thinks
fit for disposal of such property or delivery of the property to the
person entitled to be in possession. Sub section (2) of section
457 provides that if the person so entitled is known, the
CRRP2643/08 3
Magistrate may order the property to be delivered to him on
such condition as he thinks fit and if such person is unknown,
Magistrate may detain it and shall in such case issue a
proclamation specifying the articles of which such property
consists and requiring any person who may have a claim thereto,
to appear before him and establish his claim within six months
from the date of such proclamation. This Court in
Ahammedkutty’s case considered the effect of failure to inform
the Magistrate about seizure of a vehicle under the provisions of
the Protection of River Banks and Regulation of Removal of Sand
Act, 2001. This Court held that in the absence of a
corresponding provision in the Sand Act which is a special law,
section 4(2) of Cr.P.C. is automatically attracted and in the
absence of any specific provision under the Special Act,
provisions under sections 451 and 457 of Code of Criminal
Procedure pertaining to interim custody of properties seized will
have their full operation and if the seizing officer is a revenue
official, he will have to hand over the property to the police, who
will have corresponding duty to register a crime and report the
seizure to the Magistrate concerned. The order passed by the
learned Magistrate on 31.7.2008 does not show whether a crime
was registered in respect of the offence. The petition was
CRRP2643/08 4
dismissed for the reason that District Collector had already
passed an order directing a fine and releasing of the vehicle. It
is not for the Magistrate to decide whether the order passed by
the District Collector is legal or not. When it was pointed out by
the prosecutor that District Collector has passed the final order
in that proceedings and no crime was registered and the vehicle
stood ordered to be released, Magistrate did not grant custody
under section 457. In the circumstances the order cannot be
termed illegal. If the case of the petitioner is that the District
Collector is not entitled to pass such an order, remedy of the
petitioner is to challenge that order as by order dated
27.12.2007 the District Collector had already directed release of
vehicle to the petitioner on payment of fine of Rs.3,95,000/-.
I do not find any reason to interfere with the order passed by
learned Magistrate. If the order of the District Collector is
quashed, petitioner is at liberty to approach the Magistrate
under section 457.
Criminal Revision Petition is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-