Ahammed Kutty.K. v. State of Kerala and Tahsildar, Ernad Taluk

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 Crl.MC.No. 543 of 2008() ---------------------------- PETITIONER: ------------ AHAMMED KUTTY.K., S/O.USSAIN, NALAMKANDAM POYIL, KANNIPARAMBU, MAVOOR, KOZHIKKODE DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE: --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THE TAHSILDAR, ERNAD TALUK, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI. M.S. BREEZE, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2008, ALONG WITH CRL. M.C. NOS. 544, 545, 553 OF 2008 & CRL.R.P. NO. 304 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V. RAMKUMAR , J. ============================== CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304 of 2008 =============================== Dated this the 25[th] day of February, 2008. ## **O R D E R** The petitioners in all these Crl.M.Cs and the Crl. R.P are the owners of mini lorries which had been seized by the 2[nd] respondent, Tahsildar, for allegedly transporting river sand illegally without any authority and in contravention of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (“the Sand Act” for short). In all these cases, the respective petitioners moved the Magistrate concerned under Section 457 Cr.P.C for interim custody of the vehicle. In Crl.M.C Nos. 543, 544 and 553 the Magistrate refused to entertain the applications and returned those applications without even registering them. In Crl.M.C. No. 545/2008, even though the Magistrate registered the application as C.M.P.No. 343/2008, as per a separate order the application was returned holding that the Magistrate has no jurisdiction to entertain the application in the light of the decision of the Division Bench in CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 2: ## **P.K. Alavi & others v. District Collector & others (** 2007(4) KHC 142). In Crl.R.P.No. 304/2008, the learned Magistrate dismissed the application which was registered as C.M.P.No. 238/2008 holding that there is no crime registered by the police and the seizure of the mini lorry was not reported to the Magistrate as there was no duty cast on the Tahsildar to report the seizure of the lorry before the Magistrate. The petitioners in all these petitions assail the action of the Magistrate either refusing to entertain the application for interim custody or in rejecting the application. 2. I heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 3. Advocate Shri. M.S Breeze, the learned Public Prosecutor made the following submissions before me in support of the action of the Magistrate:- In **P.K. Alavi & others v. District Collector & others** (2007(4) KHC 142) corresponding to **Abdul Samad v. State of Kerala** (2007(4) KLT 473), a Division Bench of this Court, CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 3: disposing of a batch of cases, has held that the Sand Act and the Rules framed thereunder constitute a self contained code and a vehicle seized either by the police or by the revenue officials is liable to confiscation for which purpose the procedure prescribed is obtained under Rules 27 and 28 of the Kerala Protection of River Banks and Regulation of Sand Rules, 2002. (“the Sand Rules” for short) As per the said procedure, the vehicle can either be returned to the owner or the possessor thereof if such owner or possessor remits an amount towards the River Management Fund equal to the price fixed by the District Collector with fine within 7 days of seizure as provided under sub-Rule 3 of Rule 27 or can be sold by the District Collector by auction under sub-rule 2 of Rule 28 and the sale proceeds can be credited to the River Management Fund after deducting the expenses of auction. The police are not bound to register any crime and they are not bound to report the seizure under Section 102(3) Crl.P.C. Hence, the Magistrate does not possess any power to grant interim custody either under Section 451 or under CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 4: Section 457 Cr.P.C. This position has been further clarified by the Division Bench in **Moosakoya v. State of Kerala** (2008(1) KLT 538). The action of the Magistrate in either refusing to entertain the applications for interim custody or in rejecting such applications, does not call for interference by this Court. 4. I am afraid I cannot agree with the above submissions. No doubt, if the ratio in Alavi's case (Abdul Samad) and Moosakoya's case is to be applied, the learned Public Prosecutor is well founded in his submissions. Moosakoya's case was only a clarification given by the very same Division Bench which ' disposed of Alavi s case. It is now admitted that the operation of the judgment in Alavi's case (which is the same as Abdul Samad's case since the Division Bench was disposing of a batch of cases) has now been stayed by the Supreme Court in C.C. No.2610 of 2008 in Unnumbered S.L.P of 2008 on 22.02.2008. Hence, the decision of the Division Bench in Alavi's case as clarified in Moosakoya's case does not fetter this Court from considering the contentions made in support of the claim for CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 5: interim custody. ## 5. Section 23 of the Sand Act reads as follows:- 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. Unlike the provisions of the Kerala Abkari Act, 1077 M.E and the Kerala Forest Act, 1961, the confiscation of a vehicle seized under Section 23 of the Sand Act is dependent on a prosecution launched under the Sand Act. To put it differently, unless a crime is registered and the person is prosecuted for an offence punishable under Section 20 of the Sand Act, there cannot be a seizure of the vehicle involved in the case, much less, a confiscation of such vehicle. Section 67B(2) of the Kerala Abkari Act, almost corresponding to Section 61A(2) of the Kerala Forest Act provides for confiscation of vehicles etc. whether or not a prosecution is instituted for the commission of an offence under the said Act. Sub-Section (2) of Section 67B of the Abkari Act reads as follows:- CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 6: “Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof.” ## (emphases supplied) 6. The provisions of Section 61A(2) of the Kerala Forest Act are also similarly worded. Thus, irrespective of the question as to whether any prosecution is launched or not the authorised officer under those statutes is given the power to confiscate the vehicles involved in the commission of the offences under those Acts. In contradistinction with the above provisions, Section 23 of the Sand Act provides for confiscation of the vehicles only if there is a prosecution for the offence. In fact, section 23 of the CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 7: Sand Act goes further to indicate that the confiscation of the vehicle is dependent on a successful prosecution for the offence under the Act. 7. It is not disputed that the expression 'seizure' under Section 23 of the Sand Act was really intended for “confiscation”, since the corresponding Section in the original text in Malayalam used the vernacular synonym for the word 'confiscation' which is in conformity with the title of Section 23. Hence, the vehicle which is liable for confiscation under Section 23, going by the earlier part of the Section, should be one involved in the commission of an offence. To put it differently, it is only if a person transports sand in contravention of the provisions of the Act and becomes liable to be punished under Section 20 of the Sand Act, that he incurs the consequential liability for confiscation of the vehicle. Section 20 which is the penal provision reads as follows:- “Whoever contravenes any of the provisions of this Act or Rules made thereunder shall, on conviction be punished with imprisonment for a term of which may extend to 2 years or with fine which may extend to twenty-five thousand rupees or with both and in case of continuing contravention with an additional fine which may extend CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 8: to one thousand rupees for every day during which such contravention continues.” Section 24 of the Act reads as follows:- “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. There is no dispute that pursuant to a notification issued under Section 25 of the Sand Act, Station House Officers have also been authorised to file complaints on which alone the concerned Magistrate can take cognizance of the offence under the Act. Even though a vehicle involved in the commission of an offence under the Act, can be seized either by the police or by the revenue officials, such seizure postulates an act of transportation of sand in contravention of the provisions of the Act and the person who so transports becomes liable to be punished for an offence under Section 20 of the Act which is made cognizable as well. Thus, Section 23 which provides for confiscation of vehicles is dependent on a prosecution for an offence punishable under the Act and it even envisages the person who transports sand becomes liable to punishment under the Act. When such is the CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 9: provision, it cannot be contended that the police are not bound to register a crime in respect of a cognizable offence disobeying the mandate of Section 154 Cr.P.C as interpreted in the ruling of the Supreme Court in **State of Hariana & other v. Ch. Bhajan Lal and others** (AIR 1992 SC 605) which has subsequently been followed both by the Apex Court as well as by this Court in ever so many verdicts. When the commission of a cognizable offence is revealed to the Officer in charge of a police station, he has no option except to register a crime and commence investigation and, as mentioned earlier, the police have since been empowered to file a complaint also under Section 25 of the Sand Act. Even if the seizure is by a revenue official, as was done in these cases, they are bound to hand over the vehicle involved, to the police who in turn are bound to register a crime, and report the seizure to the Magistrate concerned by recourse to Section 102(3) Cr.P.C. Interpreting Section 523 of old Cr.P.C corresponding to Section 457 of the present Cr.P.C, it has been held that even in the absence of any police report regarding the seizure of CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 10: property the Magistrate has jurisdiction to act under the said section. [Vide **M.V. Ramankutty v/s State** (1969 KLT 949)]. Even the application under Section 457 Cr.P.C can be treated as an information to the Magistrate regarding the seizure of the property and all that the Magistrate need do is to confirm the above fact from the police by calling for a report, if necessary. 8. I am not able to find any valid procedure for confiscation under Rules 27 and 28 of the Sand Rules. Rules 27 and 28 of the Sand Rules read as follows:- “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.” “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 CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 11: 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.” In the first place, these rules do not prescribe any fair procedure for adjudication of the rights of the owner of the sand as well as vehicle. It is only if the vehicle seized is found to be involved in the commission of an offence punishable under the Act, can it be said that it is liable for confiscation under Section 23 of the Sand Act. Going by the said provision, a successful prosecution for an offence under the Act is the sine qua non for confiscation of the vehicle involved. Such a provision is not only not sensible but also unworkable. The question as to whether an offence has been committed involving the vehicle and the person concerned is liable to be punished, is one which the competent criminal court alone can decide in a prosecution properly launched. It will, therefore, be inadvisable if not hazardous to entrust that duty with the seizing Police or revenue officer or the District Collector. CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 12: 9. Neither the Sand Act nor the Rules contains a provision enjoining the police or the revenue officer seizing the vehicle, to produce the same before the District Collector. Secondly, all that Rule 27(3) states is that the owner or possessor of the vehicle shall remit an amount towards the River Management Fund equal to the price fixed by the District Collector with fine within 7 days of seizure. The Act or the Rules do not ensure that the vehicle, soon after its seizure, shall be placed in the custody of the District Collector so as to enable the owner or possessor to exercise his right under sub-rule 3 of Rule 27 within 7 days of seizure. That apart, if the sand in a given case is transported legally and not in contravention of the provisions of the Sand Act, why should the owner remit the price of the vehicle to anybody at all? Except giving the District Collector a right to consider objections, there is no corresponding right given by Rule 28(1) either to the owner or to the possessor of the vehicle to file objections. There is also no provision enumerating the defences which are available to such owner or possessor. The CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 13: nature of the decision which can be arrived at by the District Collector under sub-rule 1 of Rule 28 is also not indicated. It is not discernible as to whether the District Collector can refuse to order confiscation under the said sub-rule. It only states that the decision of the District Collector shall be final. The scheme under Rules 27 and 28 do not provide for any appeal or revision from the decision of the District Collector. Similarly, the said rules do not provide for any guidelines to the District Collector for fixing the price of the vehicle. What is still more atrocious is the power given to the District Collector under Rule 27(3) to recover the price of the vehicle with fine within 7 days of seizure. Except Section 20 of the Act which prescribes a maximum fine of Rs. 25,000/-, there is no other provisions either in the Act or in the Rules giving any authority to the District Collector to recover any amounts by way of fine or compounding fee. So, it should be inferred that the fine which is contemplated under Rule 27(3) is the fine which is referred to in Section 20 of the Act. Under Section 20 it is for the competent criminal court to impose the CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 14: appropriate quantum of fine, having regard to the facts and circumstances of each and every case and Rs.25,000/- is the maximum fine imposable under Section 20. The District Collector could not have been invested with a power to recover such fine which could be imposed only by the competent criminal court trying an offence under Section 20 of the Act. 10. It is in the backdrop of the above statutory setting that the question regarding the interim custody of vehicles seized under the Sand Act will have to be examined. First of all, there is no provision in the Act or the Rules providing for interim custody of the vehicle either by the court or by the revenue officials including the District Collector. Rules 27 and 28 envisage a situation where the decision of the District Collector is rendered within 7 days of the seizure of the vehicle which is a virtual impossibility. When as per the provisions of the Act registration of a crime is inevitable for seizure and eventual confiscation of the vehicle, it goes without saying that there is a corresponding obligation on the part of the seizing police officer CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 15: to report the seizure to the Magistrate. The duty of a police officer to report seizure of property to the concerned Magistrate under Section 102(3) Cr.P.C is not confined to offences under the Indian Penal Code alone. Even if it were so, in the absence of any corresponding provision in the Sand Act which is a special law, Section 4(2) Cr.P.C is automatically attracted. Section 4 Cr.P.C reads as follows:- **Trial of offences under the Indian Penal Code and other laws:** - (1) All offences under the Indain 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. 11. Thus, in the absence of any specific provision under the Special Act, provisions under Sections 451 and 457 Cr.P.C pertaining to interim custody of the properties seized under Special laws will have their full operation. If the seizing officer is a revenue official, then he will have to hand over the vehicle to the Police who will have a corresponding duty to register a crime and report the seizure to the Magistrate concerned. Unlike the CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 16: Abkari Act or the Kerala Forest Act, the vehicle cannot be straightaway produced before the District Collector for the purpose of confiscation. 12. It is pertinent in this context to consider Section 39(1) of Wild Life Protection Act, 1972 which reads as follows:- 39. Wild Animals, etc., to be Government property.- (1) Every- (a) wild animal, other than vermin, which is hunted under Section 11 or sub-section (1) of Section 29 or sub-section (6) of Section 35 or kept or (bred in captivity or hunted) in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed [xxxx] by mistake; and (b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed. (c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed. (d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act. It has been held that, notwithstanding the statutory declaration that such vehicle shall be the property of the State Government, the said provision will have application only if it has been held by CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 17: a court of competent jurisdiction that such vehicle was used for the commission of offences under the Act and that until then, the property will be available for disposal on interim custody under Section 451 Cr.P.C. [Vide (2003(7) SCC 589 SC - **Indian Handicrafts Emporium v. Union of India** ), 2004(2) KLT 865- **Mathew v. Range Officer** , 2004(3) KLT 322 **Mohammed Ismail v. State of Kerala** 2004(3) KLT 322 and 2007(3) SCC Crl. 353- **State of U.P and another v. Lalloo Singh.** ] 13. I am, therefore, prima facie, of the view that apart from the fact that the procedure for confiscation in the Sand Act and the Rules is imperfect, ineffective, vague, unworkable and expropriatory in nature, it cannot also be said to be a self contained code excluding the operation of the Cr.P.C with regard to interim custody and related matters. Even the Division Bench in **Alavi's case** and **Moosakoya's case** has justified the interim custody granted in those cases. Seized vehicles lying exposed to the ambient weather and getting deteriorated in value and constituting ugly sights in court compounds, police stations, CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 18: excise courtyards, collectorates, forest offices etc. are avoidable eyesores. I am also fortified in my view by the decision of the Apex Court in **Sunderbhai Ambalal Desai v. State of Gujarat** (AIR 2003 SC 638) corresponding to (2002 (10) SCC 282). 14. The mini lorry in question shall accordingly be released on interim custody by the learned Magistrate to the respective petitioners on their depositing a sum of Rs.25,000/- (Rupees twenty five thousand only) and executing a bond for Rs.5 lakh with two solvent sureties each for the like amount to the satisfaction of the Magistrate concerned (who shall not insist on solvency certificates from the sureties) on the respective petitioners undertaking as follows:- 1. The petitioner shall not permit the user of the lorry for any illicit purpose 2. The petitioner shall not transfer wholly or in part the lorry to any other person. 3. The petitioner shall produce the lorry before the Magistrate as and when directed to do so, in the same condition CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 19: in which it is released to the petitioner. 4. The interim custody of the lorry shall be subject to final orders, if any, to be passed for confiscation. 15. In those cases where the applications have been returned by the Magistrate, the petitioners shall be free to file separate applications for interim custody. In the case of Crl.M.C No. 545/2008, C.M.P. No. 343/2008 and in the case of Crl.R.P. No. 304/2008, C.M.P.No. 238/2008 filed before the learned Magistrate shall stand restored to file and the application for interim custody shall stand allowed on the above terms and conditions. These Crl.M.Cs and Crl.R.P are allowed as above. ## **V. RAMKUMAR, JUDGE.** rv CRL.M.C. Nos. 543, 544, 545, 553 of 2008 & Crl.R.P. No. 304/2008 : 20: