{"id":53555,"date":"2007-12-05T00:00:00","date_gmt":"2007-12-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moosakoya-vs-the-state-of-kerala-on-5-december-2007"},"modified":"2016-08-22T21:45:58","modified_gmt":"2016-08-22T16:15:58","slug":"moosakoya-vs-the-state-of-kerala-on-5-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moosakoya-vs-the-state-of-kerala-on-5-december-2007","title":{"rendered":"Moosakoya vs The State Of Kerala on 5 December, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Moosakoya vs The State Of Kerala on 5 December, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl Rev Pet No. 3953 of 2007()\n\n\n1. MOOSAKOYA, S\/O.MUHAMMED,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.BABU S. NAIR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice J.B.KOSHY\nThe Hon'ble MRS. Justice K.HEMA\n\n Dated :05\/12\/2007\n\n O R D E R\n<\/pre>\n
                     J.B. Koshy & K.Hema, JJ.\n<\/p>\n
                 ————————————–\n<\/p>\n
                    Crl.R.P. No. 3953 of 2007\n<\/p>\n
                 —————————————\n<\/p>\n
       Dated this the 5th day of December, 2007<\/p>\n
                                Order<\/p>\n
Koshy,J.\n<\/p>\n
             A learned single Judge of this Court referred this matter<\/p>\n
to the Division Bench as in the earlier judgment of this Court in Alavi<\/p>\n
P.K. v. District Collector and others (ILR 2007 (4) Kerala 221 = 2007<\/p>\n
(4) KHC 142) (same as Abdul Samad v. State of Kerala<\/a> (2007 (4) KLT<\/p>\n
473) while holding that section 102 of the Code of Criminal<\/p>\n
Procedure is not applicable when vehicles transporting sand illegally<\/p>\n
is seized under section 102 Cr. P.C. it was not brought to the notice<\/p>\n
of this Court that under section 24 of the Kerala Protection of River<\/p>\n
Banks and Regulation of Removal of Sand Act, 2001 (in short ‘the<\/p>\n
Sand Act’) all offences are cognizable.          If the offences are<\/p>\n
cognizable, the police cannot refuse to register a crime when they<\/p>\n
get information regarding the commission of a cognizable offence.<\/p>\n
Consequently, police is bound to report the seizure of the vehicle to<\/p>\n
the Magistrate having jurisdiction as provided under section 102 Cr.<\/p>\n
P.C. At paragraph 6 of the judgment it was held as follows:<\/p>\n
Crl.R.P.No.3953\/2007                     2<\/span><\/p>\n
                     “6. Based on the decision of this court in
\n               Rahim v. State of Kerala<\/a> (2002 (3) KLT 340) it is
\n               argued that as soon as the vehicle is seized,
\n               report should be filed to the court under Section
\n               102 of the Code of Criminal Procedure. We are
\n               afraid that such an interpretation is not possible
\n               because what is to be done with the seized
\n               vehicle is very clearly mentioned under Rules 27
\n               and 28. It is true that for imposition of penalty
\n               like imprisonment and imposition of fine, only
\n               court can take action on a complaint duly filed
\n               and it is the power of the court to impose
\n               imprisonment or fine under Section 20 of the
\n               Act.   For that seizure of the vehicle is not
\n               necessary.        Hence,     vehicles   which   are
\n               transporting sand illegally can be seized under
\n               Section 23 of the Act and not under under
\n               Section 102 of Cr.P.C. The power to seize is
\n               given to revenue officials and Police officers and
\n               when vehicles are seized under Section 23 of
\n               the Act, the procedure to be followed is also
\n               prescribed in the statutory rules framed under
\n               the Act itself. It is a self contained Act. Further,
\n               under   which     circumstances     police  officers
\n               should    seize    the   vehicles   is  specifically
\n               mentioned in Section 102 Cr.P.C. and conditions
\n               are different with regard to seizure of vehicle
\n               involved in illegal sand mining which is made
\n               illegal by the provisions of the Act and,
\n               therefore, Section 102 Cr.P.C. is not applicable
\n               when the vehicle is seized as per the provisions
\n               of the Act.    Hence, the decision in Rahim v.
\n               State of Kerala<\/a> (2002 (3) KLT 340) is not
\n               correctly decided.      As soon as the seizure is
\n               effected, further procedures to be taken are
\n               very specifically mentioned in Rules 27 and 28.
\n               The above power is in addition to the power of
\n               the court in imposing penalty under Section 20
\n               and such offence can be taken cognizance by
\n               the court only if authorised officer as mentioned
\n               in Section 25 files a complaint and those two<\/p>\n
Crl.R.P.No.3953\/2007                       3<\/span><\/p>\n
               provisions are clearly independent as legislature
\n               thought it fit, if necessary to confiscate the
\n               vehicle if the vehicle is involved in illegal sand
\n               mining.   Even though District Collector has got
\n               power to confiscate the vehicle, rules provide
\n               that on payment of the amount as fixed under
\n               Rule 27(3),      he      is  bound  to  release the
\n               vehicle ………………”\n<\/p><\/blockquote>\n
In paragraph 5 of the order of reference, the learned single Judge<\/p>\n
observed as follows:\n<\/p>\n
                     “5. It is true that the Division Bench in
\n               Alavi’s case has taken such a view. But then, it
\n               appears that the attention of the Division Bench
\n               was not brought to one aspect of the matter.
\n               Under section 23 of the Act whoever transports
\n               sand without complying with the provisions of
\n               the Act is declared to be liable to be punished
\n               and the vehicle used for the transportation is
\n               also liable for seizure by the police or revenue
\n               officials. The liability for punishment can arise
\n               under section 20           of the Act as per which
\n               whoever contravenes any of the provisions of
\n               the Act or the Rules made thereunder is liable to
\n               be punished with imprisonment for a term of
\n               which may extend to two years or with fine
\n               which may extend to twenty five thousand
\n               rupees or with both. Under section 24 of the Act
\n               all offences under the Act are declared to be
\n               cognizable.         Thus     any  person   who   is
\n               transporting sand without complying with the
\n               provisions of the Act is committing an offence
\n               punishable under section 20 of the Act and
\n               liable to be punished and so declared under
\n               section 23 itself.           Such offence being a
\n               cognizable offence, in my view, the police
\n               cannot refrain from registering a crime if they
\n               happen to stumble upon a vehicle illegally
\n               transporting sand in contravention of the<\/p>\n
Crl.R.P.No.3953\/2007                    4<\/span><\/p>\n
               provisions of the Act. If a complaint alleging the
\n               commission of a cognizable offence is given to
\n               an officer in charge of a police station, and such
\n               officer as no other alternative except to register
\n               a crime, then it is all the more necessary that a
\n               police officer who comes across the commission
\n               of a cognizable offence should register a crime.
\n               In other words, every act of transporting of sand
\n               without complying with the provisions of the Act
\n               involves the commission of a cognizable offence
\n               punishable under section 20 of the Act for which
\n               the registration of crime is inevitable. If so, the
\n               police officer who is bound to register a crime is
\n               obliged under section 102 Cr.P.C. to report the
\n               seizure of the vehicle to the Magistrate having
\n               jurisdiction. In areas where the Special Act is
\n               silent section 4 (2) Cr.P.C. should govern the
\n               procedure obliging the police officer to comply
\n               with section 102 Cr. P.C.          Otherwise, the
\n               Magisterial control over the police will be
\n               rendered meaningless leading to unbridled
\n               exercise of powers and consequent misuse of
\n               authority by the police.      This aspect of the
\n               matter    does   not    appear   to   have   been
\n               highlighted before the Division Bench.”<\/p><\/blockquote>\n
               2.   Section 24 of the Sand Act cannot be read in<\/p>\n
isolation with section 25. We extract the above sections below:<\/p>\n
                     “24.    Offences under this Act to be
\n               cognizable:- Notwithstanding anything contained
\n               in the Code of Criminal Procedure, 1973 (Central
\n               Act 2 of 1974), all offences under this Act shall
\n               be cognizable.\n<\/p><\/blockquote>\n
                     25.   Cognizance of offences:-      No court
\n               shall take cognizance of any offence punishable
\n               under this Act, except upon a complaint in
\n               writing made by a person authorised in this
\n               behalf by the Government or the District<\/p>\n
Crl.R.P.No.3953\/2007                  5<\/span><\/p>\n
               Collector or a Geologist of the Department of
\n               Mining and Geology.”<\/p><\/blockquote>\n
               3. A plain reading of the above provision will show that<\/p>\n
even though by section 24 all offences under the Act are made<\/p>\n
cognizable, no court can take cognizance of the offence except<\/p>\n
upon a written complaint made by a person authorised in this behalf<\/p>\n
by the Government of the District Collector or a Geologist of the<\/p>\n
Department of Mining and Geology. A ‘complaint in writing’ by the<\/p>\n
authorised officer etc. is the only condition for taking cognizance as<\/p>\n
provided in section 25.       If a police officer is authorised by the<\/p>\n
Government, he may also file a complaint on the basis of which the<\/p>\n
court may take cognizance. But, the court cannot take cognizance<\/p>\n
of any offence punishable under the Sand Act on a police report<\/p>\n
filed under section 173 (2) of the Cr. P.C. after investigation by<\/p>\n
police. Section 20 deals with penalty for the offence. Maximum<\/p>\n
period of imprisonment, apart from fine that can be imposed, is only<\/p>\n
two years. In Alavi’s case we have considered the scope of section<\/p>\n
23 read with The Kerala Protection of River Banks and Regulation of<\/p>\n
Removal of Sand Rules (for short ‘the Rules’) and held that the Act<\/p>\n
and Rules should be read together and harmoniously interpreted<\/p>\n
and Collector has got power to confiscate and sell the vehicle if the<\/p>\n
Crl.R.P.No.3953\/2007                   6<\/span><\/p>\n
amount fixed by him is not paid to the River Management Fund<\/p>\n
within a reasonable time.        Statutory rules framed in accordance<\/p>\n
with the Act also can be referred in interpreting the Statute so long<\/p>\n
as rules are not inconsistent with the Act. (See: Gujarat Pradesh<\/p>\n
Panchayat Parishad v. State of Gujarat<\/a> ((2007) 7 SCC 718). For an<\/p>\n
effective understanding, we may extract section 23 of the Act, rule<\/p>\n
27 and rule 28 of the Rules:\n<\/p>\n
                     “Section 23. Confiscation of vehicles:-
\n               Whoever transports sand without complying
\n               with the provisions of this Act shall be liable to
\n               be punished and the vehicle used for the
\n               transaction is liable for seizure by the police or
\n               Revenue officials.”\n<\/p><\/blockquote>\n
                     “Rule 27.    Procedure for confiscation of
\n               vehicle:- (1) The police or revenue officials shall
\n               seize the vehicle used for transporting sand in
\n               violation of the provisions of the Act and these
\n               Rules.\n<\/p><\/blockquote>\n
                     (2) In the case of seizure of vehicle under
\n               sub-section (1), a mahazar shall be prepared in
\n               the presence of two witnesses regarding the
\n               vehicle and one copy of the same shall be given
\n               to the person possessing the vehicle at the time
\n               of seizure and one copy to the District Collector.\n<\/p><\/blockquote>\n
                     (3) The vehicle may be returned if the
\n               owner of the vehicle or the possessor remits an
\n               amount towards River Management Fund equal
\n               to the price fixed by the District Collector with
\n               fine within seven days of seizure.”\n<\/p><\/blockquote>\n
Crl.R.P.No.3953\/2007                   7<\/span><\/p>\n
                     Rule 28. Sale of the vehicle seized:- (1)
\n               The District Collector shall consider every
\n               objection submitted within seven days of seizure
\n               of any vehicle under rule 27 and the decision of
\n               District Collector thereon shall be final.\n<\/p><\/blockquote>\n
                     (2) In the case of sale of the vehicle under
\n               sub-section (1), if the fine and amount under
\n               sub-section (3) of section 27 of these rules has
\n               not been remitted, the District Collector shall
\n               sell the vehicle by auction.\n<\/p><\/blockquote>\n
                     (3) The amount received from auction
\n               under sub-section (2) shall be credited to the
\n               River Management Fund after deducting the
\n               expenditure of auction.”\n<\/p><\/blockquote>\n
Rules 27 and 28 clearly lay down the procedure to be complied with<\/p>\n
by the police officer or revenue officer who seizes the vehicle for<\/p>\n
illegal transport of sand.     The police officers and revenue officials<\/p>\n
shall seize the vehicle used for illegal transportation of sand under<\/p>\n
Rule 27 of the Rules. Under section 23 not only police officers, but<\/p>\n
also revenue officers may seize such vehicles. After seizure what is<\/p>\n
to be done with the vehicle and procedure to be adopted by the<\/p>\n
officers are clearly laid down in rules 27 and 28. The seizure is,<\/p>\n
therefore, to be effected under the provisions contained in the Sand<\/p>\n
Act and Rules and not under section 102 Cr. P.C.         On seizure, the<\/p>\n
following procedures have to be complied with:<\/p>\n
Crl.R.P.No.3953\/2007                   8<\/span><\/p>\n
                     1. The    officer who who is seizing the vehicle<\/p>\n
              should prepare a mahazar.\n<\/p><\/blockquote>\n
                      2.  The said mahazar should be signed by two<\/p>\n
               witnesses.\n<\/p><\/blockquote>\n
                      3. A copy of the mahazar should be given to the<\/p>\n
               person possessing the vehicle at the time of seizure.\n<\/p><\/blockquote>\n
                      4. A copy of the mahazar should be given to the<\/p>\n
               District Collector.\n<\/p><\/blockquote>\n
                      5. The owner of the vehicle or the person from<\/p>\n
               whom the vehicle was seized can file objection.\n<\/p><\/blockquote>\n
                      6. The District Collector is bound to consider the<\/p>\n
               objection filed within seven days of seizure.\n<\/p><\/blockquote>\n
                      7. In Alavi’s case, we have also held that as part<\/p>\n
               of principles of natural justice, District Collector should<\/p>\n
               give an opportunity of hearing also to the person who<\/p>\n
               filed the objection.\n<\/p><\/blockquote>\n
                      8.  The District Collector is bound to take a<\/p>\n
               decision. If the vehicle is not found involved in illegal<\/p>\n
               transport of the same, he is bound to return the same.\n<\/p><\/blockquote>\n
Crl.R.P.No.3953\/2007                    9<\/span><\/p>\n
                     9. If it is found that the vehicle was transporting<\/p>\n
               sand illegally, he has to fix an amount equivalent to the<\/p>\n
               prize to be paid to the River Management Fund.\n<\/p><\/blockquote>\n
                     10. The District Collector is bound to return the<\/p>\n
               seized vehicle if the amount fixed by the Collector is<\/p>\n
               paid by the owner in possession of the vehicle as the<\/p>\n
               case may be.\n<\/p><\/blockquote>\n
                     11.   If the amount fixed is not paid within a<\/p>\n
               reasonable time, he can sell the vehicle in auction.\n<\/p><\/blockquote>\n
                      12. The amount realised from the auction shall be<\/p>\n
               credited to the River Management Fund.<\/p><\/blockquote>\n
               4. A plain reading of the Sand Act and Rules together<\/p>\n
will show that in the matter or seizure, no report need be filed to<\/p>\n
the Magistrate as special procedure is laid down when seizure is<\/p>\n
effected in view of section 23 of the Act. There is no statutory<\/p>\n
compulsion for filing such a report or producing the vehicle before<\/p>\n
the Magistrate under any of the provisions contained in the Cr.P.C.<\/p>\n
               5. It is true that ‘offence’ as defined under section 2 (n)<\/p>\n
of the Cr.P.C. includes offences mentioned in special law also.<\/p>\n
Sections 4 and 5 of Cr.P.C. make the procedure laid down in the<\/p>\n
Code applicable to all offences under the Indian Penal Code unless<\/p>\n
Crl.R.P.No.3953\/2007                  10<\/span><\/p>\n
special statute provides a special or separate procedure. Sections 4<\/p>\n
and 5 of Cr. P.C. are as follows:\n<\/p>\n
                     “4.   Trial of offences under the Indian
\n               Penal Code and other laws:- (1) All offences
\n               under the Indian Penal Code (45 of 1860) shall
\n               be   investigated,  inquired   into, tried,  and
\n               otherwise dealt with according to the provisions
\n               hereinafter contained.\n<\/p><\/blockquote>\n
                     (2) All offences under any other law shall
\n               be   investigated,  inquired   into, tried,  and
\n               otherwise dealt with according to the same
\n               provisions, but subject to any enactment for the
\n               time being in force regulating the manner or
\n               place of investigating, inquiring into, trying or
\n               otherwise dealing with such offences.\n<\/p><\/blockquote>\n
                     5. Saving:- Nothing contained in this Code
\n               shall, in the absence of a specific provision to
\n               the contrary, affect any special or local law for
\n               the time being in force, or any special
\n               jurisdiction or power conferred, or any special
\n               form of procedure prescribed, by any other law
\n               for the time being in force.”\n<\/p><\/blockquote>\n
It was held by the Apex Court in Khatri and others v. State of Bihar<\/p>\n
and others (AIR<\/a> 1981 SC 1068) that in view of section 4 of Cr.P.C.<\/p>\n
the provisions of the Criminal Procedure Code are applicable when<\/p>\n
the offence under the Indian Penal Code or under any other law is<\/p>\n
being investigated or enquired or proceeded with trial or otherwise<\/p>\n
dealt with. But, if a special law provides a special procedure, that<\/p>\n
procedure will prevail as held by the Apex Court in Directorate of<\/p>\n
Crl.R.P.No.3953\/2007               11<\/span><\/p>\n
Enforcement v. Deepak Mahajan and<\/a> another (AIR 1994 SC 1775)<\/p>\n
and A.R. Antulay v.      Ramdas Sriniwas Nayak and<\/a> another (AIR<\/p>\n
1984 SC 718).        Apex Court in Major G.S. Sodhi v. Union of India<\/a><\/p>\n
(1991 Crl.L.J. 1947 SC) held that when there is a special enactment<\/p>\n
in force relating to the manner of investigation, enquiry or<\/p>\n
otherwise dealing with the offence, the general power under the<\/p>\n
Code is subject to such special enactment and in interpreting the<\/p>\n
scope of such statute that dominate purpose of enacting the statute<\/p>\n
also has to be borne in mind. (See also: Jomon v. State of Kerala<\/a><\/p>\n
(1987 (2) Crimes 920) and Sukhdev Singh Sodhi v. The Chief Justice<\/p>\n
and Judges of the Pepsu High Court<\/a> (1954 Crl.L.J.460 SC). When a<\/p>\n
special power is conferred under section 23 of the Sand Act read<\/p>\n
with Rules 27 and 28 for seizure and a specific procedure to be<\/p>\n
followed after the seizure, that procedure has precedence over the<\/p>\n
general power and procedure. The application of maxim Generalia<\/p>\n
specialibus non derogant (general statements or provisions do<\/p>\n
not derogate from special statements or provisions). On the other<\/p>\n
hand,     specialia derogant generalibus (special         provisions<\/p>\n
derogate from general). If a special provision or procedure is made<\/p>\n
on certain matter, that matter is excluded from general provision as<\/p>\n
held by the Supreme Court in Gadde Venkateswara Rao v.<\/p>\n
Crl.R.P.No.3953\/2007                   12<\/span><\/p>\n
Government of AP and others (AIR 1966 828). In Jasbir Singh v.<\/p>\n
Vipin Kumar Jaggi and others (AIR<\/a> 2001 SC 2734 at page 2743) it<\/p>\n
was held by the Apex Court that section 64 of the NDPS Act will<\/p>\n
prevail over section 307 Cr.P.C., 1974 as it is a special provision.<\/p>\n
Same principle was followed in P.V. Hemalatha v. Kattamkandi<\/p>\n
Puthiya Maliackal Saheeda (AIR<\/a> 2002 SC 2445 at page 2451). In<\/p>\n
this connection, we also refer to paragraphs 60 and 61 of the Apex<\/p>\n
Court judgment in Ghaziabad Zilla Sahkari Bank Ltd. v. Addl. Labour<\/p>\n
Commissioner and others<\/a> (2007 AIR SCW 956).\n<\/p>\n
               6.   Now, we shall consider the arguments based on<\/p>\n
section 24 of the Sand Act making all offences under the Act<\/p>\n
cognizable.       A ‘cognizable offence’ is defined in section 2 (c) of<\/p>\n
Cr.P.C. as follows:\n<\/p>\n
                     “(c) ‘cognizable offence’ means an offence
\n               for which, and ‘cognizable case’ means a case in
\n               which, a police officer may, in accordance with
\n               the First Schedule or under any other law for the
\n               time being in force, arrest without warrant;”\n<\/p><\/blockquote>\n
Therefore,      making the offences under the Sand Act cognizable,<\/p>\n
police officers will get the power to arrest without warrant.<\/p>\n
Chapter XI of Cr.P.C. deals with preventive action to be taken by<\/p>\n
police to prevent cognizable offences. Chapter XII provides the<\/p>\n
Crl.R.P.No.3953\/2007                  13<\/span><\/p>\n
procedure for information in investigation of the offence by the<\/p>\n
police. Section 154 (1) of Cr.P.C. reads as follows:<\/p>\n
                     “154.   Information in cognizable cases:-
\n               (1) Every information relating to the commission
\n               of a cognizable offence,if given orally to an
\n               officer in charge of a police station, shall be
\n               reduced to writing by him or under his direction,
\n               and be read over to the informant; and every
\n               such information, whether given in writing or
\n               reduced to writing as aforesaid, shall be signed
\n               by the person giving it, and the substance
\n               thereof shall be entered in a book to be kept by
\n               such officer in such form as the State
\n               Government may prescribe in this behalf.”\n<\/p><\/blockquote>\n
Remedy of a person if police is not registering a case is mentioned<\/p>\n
in section 154 (3).       It was held by the Apex Court in State of<\/p>\n
Haryana and others v. Ch<\/a>: Bhajan Lal and others (AIR 1992 SC 604)<\/p>\n
that in a cognizable case police officer is bound to record every<\/p>\n
information relating to the commission of a cognizable offence and<\/p>\n
to register a case. In paragraph 32, it is held as follows:<\/p>\n
                     “32. It is, therefore, manifestly clear that
\n               if any information disclosing a cognizable
\n               offence is laid before an officer in charge of a
\n               police station satisfying the requirements of
\n               section 154 (1) of the Code, the said police
\n               officer has no other option except to enter the
\n               substance thereof in the prescribed form, that is
\n               to say, to register a case on the basis of such
\n               information.”\n<\/p><\/blockquote>\n
Crl.R.P.No.3953\/2007                  14<\/span><\/p>\n
This view was reiterated by the Supreme Court in Ramesh Kumar v.<\/p>\n
State (NCT of Delhi) and others (2006 AIR SCW 1021). There is<\/p>\n
substantial difference between the term ‘cognizable offence’ and<\/p>\n
‘cognizable case’ as can be seen from the definition under section 2<\/p>\n
(c) of Cr.P.C. Chapter XII of Cr. P.C. provides for proceedings for<\/p>\n
information to investigate a case. Section 156 provides for police<\/p>\n
officer’s power to investigate and section 157 provides for<\/p>\n
procedure for investigation and section 158 provides for filing of<\/p>\n
final report.       The above would show that police has to make<\/p>\n
investigation after registering the case and file report to the<\/p>\n
Magistrate. Chapter XIV and XV state how cognizance is taken by<\/p>\n
Magistrates. In cognizable cases, cognizance may be taken on a<\/p>\n
police report.      Here, written complaint is to be filed by District<\/p>\n
Collector or Geologist or authorised officer and in the absence of<\/p>\n
such written complaint by authorised officer etc., no cognizance can<\/p>\n
be taken, even if police registered an F.I.R.\n<\/p>\n
               7. It is argued by the learned Government Pleader that<\/p>\n
‘cognizable offence’ means an offence for which a police officer may<\/p>\n
arrest without warrant. Even if a crime is registered in respect of a<\/p>\n
cognizable offence under the Sand Act, the matter cannot be<\/p>\n
proceeded with and the offender cannot be punished under section<\/p>\n
Crl.R.P.No.3953\/2007                15<\/span><\/p>\n
20 of the Sand Act, because as per section 25 of the Act no court<\/p>\n
shall take cognizance of any offence punishable under this Act<\/p>\n
except upon a complaint in writing made by a person authorised in<\/p>\n
this behalf by the Government or the District Collector or           a<\/p>\n
Geologist of the Department of Mining and Geology. If the police<\/p>\n
officers are also authorised officers, they can very well file a<\/p>\n
complaint before the court, but, they need not file a final report<\/p>\n
after investigation under section 173 (2) of Cr.P.C.      Even when<\/p>\n
police officer seizes the vehicle by using the power under section<\/p>\n
23, Magistrate cannot take cognizance of the offence unless a<\/p>\n
complaint is filed by the authorised officer etc. as provided under<\/p>\n
section 25.\n<\/p>\n
               8. Assuming that being a cognizable offence in view of<\/p>\n
section 24, on getting information by the police officer, he has to<\/p>\n
register a case, that will not make obligation to follow section 102.<\/p>\n
Seizure of the vehicle under section 23 of the Act can be done<\/p>\n
either by the police officer or revenue officials. If revenue officials<\/p>\n
seize the vehicle and report the matter to the District Collector<\/p>\n
without intimation of police, question of filing F.I.R. or complying<\/p>\n
with section 102 of Cr.P.C. will not arise. Section 102 is applicable<\/p>\n
in the seizure of vehicle or property whether offence committed is<\/p>\n
Crl.R.P.No.3953\/2007                   16<\/span><\/p>\n
cognizable or non-cognizable.          Section 102 of Cr.P.C. reads as<\/p>\n
follows:\n<\/p>\n
                     “102.   Power of police officer to seize
\n               certain property:- (1)   Any police officer may
\n               seize any property which may be alleged or
\n               suspected to have been stolen, or which may be
\n               found   under     circumstances    which     create
\n               suspicion of the commission of any offence.\n<\/p><\/blockquote>\n
                     (2) Such police officer, if subordinate to
\n               the officer in charge of a police station, shall
\n               forthwith report the seizure to that officer.\n<\/p><\/blockquote>\n
                     (3) Every police officer acting under sub-
\n               section (1) shall forthwith report the seizure to
\n               the Magistrate having jurisdiction and where the
\n               property seized is such that it cannot be,
\n               conveniently transported to the Court or where
\n               there   is    difficulty  in   securing      proper
\n               accommodation       for the   custody     of  such
\n               property, or where the continued retention of
\n               the property in police custody may not be
\n               considered    necessary   for   the   purpose    of
\n               investigation, he may give custody thereof to
\n               any person on his executing a bond undertaking
\n               to produce the property before the Court as and
\n               when required and to give effect to the further
\n               orders of the Court as to the disposal of the
\n               same.”\n<\/p><\/blockquote>\n
But for section 102, under general law, there is no power of the<\/p>\n
police officer to seize the vehicle or property involved in a<\/p>\n
suspected crime or stolen property. Section 102 confers power and<\/p>\n
then prescribes the procedure to be adopted thereafter with regard<\/p>\n
to the property seized as per the power conferred under section<\/p>\n
Crl.R.P.No.3953\/2007                 17<\/span><\/p>\n
102 (1).      Here, the vehicle involved in the illegal transport of sand<\/p>\n
is seized not under the power of the police or revenue officer under<\/p>\n
section 102, but, under section 23 of the Sand Act read with         Rule<\/p>\n
27. Rules 27 and 28 prescribe the procedure to be adopted with<\/p>\n
regard to seizure of vehicles. It is true that we judges while hearing<\/p>\n
criminal matters mainly deal with offences under the Indian Penal<\/p>\n
Code and there is a chance to be obsessed by the provisions of Cr.<\/p>\n
P.C. notwithstanding the specific provisions in the special statute.<\/p>\n
We have seen that generally Cr.P.C. is applicable during enquiry,<\/p>\n
investigation and trial of offence under special Act also, but, if a<\/p>\n
special procedure is provided, only that procedure is to be followed<\/p>\n
while exercising power specifically given under the special Act. In<\/p>\n
this connection, we refer to the decision of this Court in Sasidharan<\/p>\n
v. Forest Range Officer<\/a> (1999 (2) KLT 836) considering a case of<\/p>\n
seizure of vehicle transporting illegal timber. Under section 52 (2)<\/p>\n
of the Forest Act, 1961, power is given to the forest officers and<\/p>\n
police officers to seize the transported timber or forest produce and<\/p>\n
vehicles used for the same. Sub-section (2) specifically provides<\/p>\n
that immediately on such seizure, a report of such seizure shall be<\/p>\n
made to the Magistrate. Here, such a procedure is significantly<\/p>\n
absent. This court held that failure on the part of the authorised<\/p>\n
Crl.R.P.No.3953\/2007                 18<\/span><\/p>\n
officer to report the seizure of the vehicle and timber to the<\/p>\n
Magistrate will not affect the procedure for confiscation of the same<\/p>\n
under section 61A of the Forest Act as power to confiscate is an<\/p>\n
independent power for achieving the object of the Act. Power of<\/p>\n
disposal or forfeiture of     the property involved in the offence is<\/p>\n
different from confiscation proceedings. Considering the provisions<\/p>\n
of section 59-A (3) of the Forest Act, 1927, Apex Court in State of<\/p>\n
W.B. v. Gopal Sarkar<\/a> ((2002) 1 SCC 495) held that power of<\/p>\n
confiscation of vehicle exercised           by the forest officer is<\/p>\n
independent of any proceedings of prosecution initiated in respect<\/p>\n
of the forest offence committed.             Here also, confiscation<\/p>\n
proceedings is an independent power.          Power to take criminal<\/p>\n
prosecution upon written complaint is entirely different.          In<\/p>\n
Divisional Forest Officer v. G.V.Sudhakar Rao and others<\/a> ((1985) 4<\/p>\n
SCC 573), Supreme Court observed as follows:\n<\/p>\n
                     “The conferral of power of confiscation of
\n               seized timber of forest       produce and the
\n               implements etc. on the authorised officer under
\n               sub-section (2-A) of section 44 of the Act on his
\n               being satisfied that a forest offence had been
\n               committed in respect thereof, is not dependent
\n               upon   whether    a  criminal   prosecution   for
\n               commission of a forest offence has been
\n               launched against the offender or not.     It is a
\n               separate and distinct proceeding from that of a
\n               trial before the court for commission of an<\/p>\n
Crl.R.P.No.3953\/2007                   19<\/span><\/p>\n
               offence. Under sub-section (2) of section 44 of
\n               the Act, where a Forest Officer makes a report of
\n               seizure of any timber or forest produce and
\n               produces    the    seized    timber   before   the
\n               authorised officer along with a report under
\n               section 44 (2), the authorised officer can direct
\n               confiscation to Government of such timber or
\n               forest produce and the implements etc. if he is
\n               satisfied that a forest offence has been
\n               committed, irrespective of the fact whether the
\n               accused is facing a trial before a Magistrate for
\n               the commission of a forest offence under section
\n               20 or 29 of the Act.”\n<\/p><\/blockquote>\n
In State of M.P. v. S.P. Sales Agencies and others<\/a> ((2004) 4 SCC<\/p>\n
448), the Apex Court held as follows:\n<\/p>\n
                     “11. In the case of State of W.B. Gopal
\n               Sarkar ((2002) 1 SCC 495) while noticing the
\n               view taken in the case of G.V. Sudhakar Rao
\n               ((1985) 4 SCC 573) this Court ha reiterated that
\n               the power of confiscation is independent of any
\n               criminal prosecution for the forest offence
\n               committed. This being the position, in our view,
\n               the High Court has committed an error in
\n               holding that initiation of confiscation proceeding
\n               relating to Kattha was unwarranted as no
\n               criminal prosecution was launched.”<\/p><\/blockquote>\n
               9. We have seen that provisions prescribed under<\/p>\n
section 20 of the Sand Act and seizure and confiscation proceedings<\/p>\n
under section 23 of the Sand Act read with rules 27 and 28 of the<\/p>\n
Sand Rules are independent provisions. Prosecution proceedings<\/p>\n
can be commenced only upon filing a written complaint by the<\/p>\n
authorised officer. Vehicles are seized under section 23 and not<\/p>\n
Crl.R.P.No.3953\/2007              20<\/span><\/p>\n
under the powers given to police officer under section 102 and<\/p>\n
separate provision is given under the Sand Act and Rules regarding<\/p>\n
the procedure to be adopted after the seizure. Let us assume for<\/p>\n
the time that being a cognizable offence, police is bound to register<\/p>\n
the case and in view of section 102 Cr.P.C., seizure of the vehicle<\/p>\n
was to be reported to the Magistrate then also, there is no power<\/p>\n
for the Magistrate to release the property to the parties. Petitioner<\/p>\n
wants interim release of the vehicle instead of being again<\/p>\n
prosecuted apart from facing confiscation proceedings. He has not<\/p>\n
approached the court with a request to prosecute him. Even if the<\/p>\n
seizure is reported to the Magistrate, Chapter XXXIV is not<\/p>\n
applicable. Chapter XXXIV (sections 451 to 459) is applicable to<\/p>\n
disposal of property by the Magistrate. Section 457 prescribes that<\/p>\n
the magistrate can make appropriate order for disposal of the<\/p>\n
property or entrustment of    the property to the person entitled<\/p>\n
when the seizure is reported to the Magistrate.      Here, property<\/p>\n
seized under section 23 and Rule 27 (1) can only be disposed of as<\/p>\n
provided under rules 27 an 28 of the Sand Rules and is liable to be<\/p>\n
sold if the amount fixed by the Collector is not paid within a<\/p>\n
reasonable time. In the case of seizure by police, mahazar shall be<\/p>\n
prepared and a copy shall be given to the District Collector. The<\/p>\n
Crl.R.P.No.3953\/2007                   21<\/span><\/p>\n
Rules do not provide that the seizure shall be reported to the<\/p>\n
Magistrate. Provision is made for return of the vehicle or its sale<\/p>\n
under Rules 27 and 28.\n<\/p>\n
               10. In State of Karnataka v. K.Krishnan (AIR<\/a> 2000 SC<\/p>\n
2729), Supreme Court considered a similar question regarding the<\/p>\n
seizure of the vehicle and forest produce used in connection with a<\/p>\n
forest offence.      Even though it was prescribed in the Karnataka<\/p>\n
Forest Rules that the seizure of such vehicle and forest produce<\/p>\n
should be reported to the magistrate’s court (akin to section 102),<\/p>\n
Apex Court held that since there is power of confiscation by the<\/p>\n
authorised officer, it cannot be released by the Magistrate until all<\/p>\n
proceedings are over. Apex Court held as follows:<\/p>\n
                     “Liberal approach in the matter with
\n               respect to the property seized, which is liable to
\n               confiscation, is uncalled for as the same is likely
\n               to frustrate the provisions of the act. Before
\n               passing an order for releasing the forest produce
\n               or the property used in the commission of the
\n               forest offence, the Authorised Officer or the
\n               Appellate Authority has to specify the reasons
\n               which justify such release, apparently, prima
\n               facie excluding the possibility of such forest
\n               produce or the property being confiscated
\n               ultimately.    Generally, therefore, any forest
\n               produce and the tools, boats, vehicles, cattles,
\n               etc., used in the commission of the forest
\n               offence, which are liable to forfeiture, should not
\n               be released. This, however, does not debar the
\n               officers and the authorities under the Act<\/p>\n
Crl.R.P.No.3953\/2007                   22<\/span><\/p>\n
               including   the   Appellate   Authority    to pass
\n               appropriate orders under the circumstances of
\n               each case but only after assigning valid reasons.
\n               The liberal approach in the matter would
\n               perpetuate the commission of more offences
\n               with respect to the forest and its produce which,
\n               if not protected, is surely to affect the mother-
\n               earth and the atmosphere surrounding it.       The
\n               courts cannot shut their eyes and ignore their
\n               obligations indicated in the Act enacted for the
\n               purposes of protecting and safeguarding both
\n               the forests and their produce. The forests are
\n               not only the natural wealth of the country but
\n               also protector of human life by providing a clean
\n               and unpolluted atmosphere.        We are of the
\n               considered view that when any vehicle is seized
\n               on the allegation that it was used for committing
\n               a forest offence, the same shall not normally be
\n               returned to a party till the culmination of all the
\n               proceedings in respect of such offence, including
\n               confiscatory proceedings, if any.”\n<\/p><\/blockquote>\n
Same view was again expressed by the Supreme Court in State of<\/p>\n
Karnataka v. K.A. Kunchindammed<\/a> ((2002) 9 SCC 90). Apex Court<\/p>\n
observed as follows:\n<\/p>\n
                     “23. The Karnataka Forest Act is a special
\n               statute enacted for the purpose of preserving
\n               the forests and forest produce in the State. The
\n               Scheme of the Act, as expressed in the sections,
\n               is to vest power in the Authorised Officers of the
\n               Forest         Department         for        proper
\n               implementation\/enforcement       of the statutory
\n               provisions and for enabling them to take
\n               effective steps for preserving the forests and
\n               forest produce. For this purpose, certain powers
\n               including the power of seizure, confiscation and
\n               forfeiture of the forest produce illegally removed
\n               from the forests have been vested exclusively in<\/p>\n
Crl.R.P.No.3953\/2007                  23<\/span><\/p>\n
               them. The position is made clear by the non
\n               obstante clause in the relevant provisions giving
\n               overriding effect to the provisions in the Act
\n               over other statutes and laws.     The necessary
\n               corollary of such provisions is that in a case
\n               where the Authorised Officer is empowered to
\n               confiscate the seized forest produce on being
\n               satisfied that an offence under the Act has been
\n               committed thereof the general power vested in
\n               the    Magistrate   for  dealing   with   interim
\n               custody\/release of the seized materials under
\n               Cr.P.C. has to give way. The Magistrate while
\n               dealing with a case of any seizure of forest
\n               produce under the Act should examine whether
\n               the power to confiscate the seized forest
\n               produce is vested in the Authorised Officer
\n               under the Act and if he finds that such power is
\n               vested in the Authorised Officer then he has no
\n               power to pas an order dealing with interim
\n               custody\/release of the seized material. This, in
\n               our view, will help in proper implementation of
\n               provisions of the special Act and will help in
\n               advancing the purpose and object of the statute.
\n               If in such cases power to grant interim
\n               custody\/release of the seized forest produce is
\n               vested in the Magistrate then it will be defeating
\n               the very scheme        of the   Act.     Such a
\n               consequence is to be avoided.\n<\/p><\/blockquote>\n
                     24. From the statutory provisions and the
\n               analysis made in the foregoing paragraphs the
\n               position that emerges is that the learned
\n               Magistrate and the learned Sessions Judge
\n               were right in holding that on facts and in the
\n               circumstances of the case, it is the Authorised
\n               Officer who is vested with the power to pass
\n               order of interim custody of the vehicle and not
\n               the Magistrate. The High Court was in error in
\n               taking a view to the contrary and in setting
\n               aside the orders passed by the Magistrate and
\n               the Sessions Judge on that basis.”\n<\/p><\/blockquote>\n
Crl.R.P.No.3953\/2007                  24<\/span><\/p>\n
In Shambhu Dayal Agarwala         v. State of W.B. ((1990) 3 SCC 549)<\/p>\n
the Supreme Court interpreted sub-section (2) of section 6-A of the<\/p>\n
Essential Commodities Act vis-a-vis section 6-E thereof and held<\/p>\n
that there could be no question of releasing the commodity in the<\/p>\n
sense of returning it to the owner or person from whom it was<\/p>\n
seized     even     before  the  proceeding    for   confiscation stood<\/p>\n
contemplated. The Hon’ble Supreme Court observed that such a<\/p>\n
view would render clause (b) of section 7 (1) totally nugatory. It<\/p>\n
was opined as follows at paragraph 8:\n<\/p>\n
                     “It seems to us that section 6-E is intended
\n               to serve a dual purpose, namely (i) to prevent
\n               interference by courts etc. and (ii) to effectuate
\n               the sale of the essential commodity under sub-
\n               section (2) and the return of the animal, vehicle
\n               etc. under the second proviso to sub-section (1)
\n               of section 6-A. In that sense section 6-E is
\n               complementary in nature.”\n<\/p><\/blockquote>\n
Following the above in State of W.B. and others v. Sujit Kumar Rana<\/a><\/p>\n
((2004) 4 SCC 129), it was held that jurisdiction of Magistrate’s<\/p>\n
court and High Court under section 482 for giving interim custody of<\/p>\n
the vehicle seized, till confiscation proceedings are over is limited.<\/p>\n
Same procedure shall apply here also. The Act itself was passed to<\/p>\n
prevent illegal mining of sand from river causing environmental<\/p>\n
problems.       Therefore, Magistrate’s Court cannot       grant interim<\/p>\n
Crl.R.P.No.3953\/2007                  25<\/span><\/p>\n
custody of the vehicle under the provisions of Cr. P.C. It was also<\/p>\n
observed in the case that by way of judicial review, High court can<\/p>\n
order return of the vehicle if the order of the authorised officer in<\/p>\n
not releasing the vehicle is patently illegal resulting in failure of<\/p>\n
justice.\n<\/p>\n
               11. There is also no reason for the apprehension by the<\/p>\n
learned single Judge that if the procedure under section 102 is not<\/p>\n
complied with, Magisterial control over the police will be rendered<\/p>\n
meaningless leading to unbridlled exercise of power               and<\/p>\n
consequential misuse of the authority by police. As we have seen<\/p>\n
earlier that vehicles involved in the offence under the Sand Act are<\/p>\n
not seized by virtue of power under section 102 Cr.P.C. But, it is on<\/p>\n
the basis of conferment of power under section 23 of the Sand Act<\/p>\n
and Rule 27. Not only the police officers, but also revenue officers<\/p>\n
are given power to seize the vehicles involved in illegal sand<\/p>\n
transportation. Police or revenue officer on seizing the vehicle is<\/p>\n
bound to give copy of the mahazar prepared for seizure to the<\/p>\n
District Collector immediately and also to the person in possession<\/p>\n
of the vehicle.       The person in possession of the vehicle or any<\/p>\n
person purported to be the owner has got a right to file objection<\/p>\n
before the Collector to decide the matter and to fix the amount to<\/p>\n
Crl.R.P.No.3953\/2007                 26<\/span><\/p>\n
be paid to the River Management Fund for releasing the vehicle. If<\/p>\n
the amount fixed is not paid within a reasonable time, Collector can<\/p>\n
sell the property. Here, seizure will be brought to the notice of the<\/p>\n
District Collector and there is no reason to apprehend that the<\/p>\n
District Collector will not do his duty properly or will allow the police<\/p>\n
to misuse the powers.        The District Collector who is Executive<\/p>\n
District Magistrate is entrusted with various powers under the<\/p>\n
Cr.P.C. as well as under various Statutes. (See: Chapter X of Cr.<\/p>\n
P.C. and provisions under Electricity Act etc.) It cannot be assumed<\/p>\n
that only Judicial Magistrate can effectively control the police or<\/p>\n
prevent any misuse of the powers by the police etc. In any event, if<\/p>\n
they commit any illegality or impropriety, power of judicial review<\/p>\n
is still there.\n<\/p>\n
               12. On the facts of this case, Magistrate rightly refused<\/p>\n
to order for interim release of the vehicle. We see no reason to<\/p>\n
interfere in the same. But, in view of the delay in fixing the amount<\/p>\n
to be paid for release of the vehicle by the Collector, we have<\/p>\n
already granted interim release of the vehicle on condition of<\/p>\n
depositing Rs.25,000\/- and executing a bond for           producing the<\/p>\n
vehicle before the Collector as and when required. It is for the<\/p>\n
Crl.R.P.No.3953\/2007                 27<\/span><\/p>\n
Collector to pass orders as provided under the Sand Act and Rules<\/p>\n
made thereunder as expeditiously as possible.<\/p>\n
               The Criminal Revision Petition is disposed of.<\/p>\n
                                                     J.B.Koshy
\n                                                       Judge<\/p>\n
                                                     K. Hema
\n                                                       Judge<\/p>\n
vaa<\/p>\n
Crl.R.P.No.3953\/2007    28<\/span><\/p>\n
                                 J.B. KOSHY AND
\n                                        K.HEMA,JJ.\n<\/p>\n<\/p>\n
                           ————————————-\n<\/p>\n
                           Crl.R.P. No. 3953 of 2007\n<\/p>\n
                           ————————————-\n<\/p>\n<\/p>\n
                                     Order<\/p>\n
                           Dated:5th December, 2007<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Moosakoya vs The State Of Kerala on 5 December, 2007 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-53555","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMoosakoya vs The State Of Kerala on 5 December, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/moosakoya-vs-the-state-of-kerala-on-5-december-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moosakoya vs The State Of Kerala on 5 December, 2007 - 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