Biju, S/o Appu v. State of Kerala and Sub Inspector of Police, Attingal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 2ND DAY OF SEPTEMBER 2014/11TH BHADRA, 1936** **Crl.Rev.Pet.No. 1492 of 2014 ()** **-------------------------------AGAINST THE ORDER/JUDGMENT IN CMP 3610/2014 of J.M.F.C.-I,ATTINGAL DATED 11-08-2014** **..............................** ## **REVISION PETITIONER(S)/REVISION PETITIONER/PETITIONER :** **-------------------------------------------------------------------------------------------** **BIJU, S/O.APPU, SHIBU NIVAS, VALAKKADU, MUDAKKAL.P.O TRIVANDRUM.** **BY ADV. SRI.M.R.SARIN** ## **RESPONDENTS/STATE/COMPLAINANT :** **----------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THROUH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. THE SUB INSPECTOR OF POLICE, ATTINGAL POLICE STATION REPRESENTED THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.GITHESH.R., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **AMV** ## P. UBAID, J. **CR** --------------------------------------Crl.R.P. No. 1492 Of 2014 --------------------------------------Dated this the 2[nd] day of September, 2014 ## O R D E R A vehicle belonging to the revision petitioner was seized by the Sub Inspector of Police, Attingal under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'the Act'), when he found red earth being transported in the said vehicle in violation of Section 4(1A) of the Act. On seizure, the Sub Inspector, suo motu, registered a crime against the revision petitioner. However, seizure of the property was not reported to the learned Magistrate having jurisdiction. When nothing proceeded further at the hands of the police, the revision petitioner moved the learned Judicial First Class Magistrate Court-I, Attingal with CMP No. 3610/2014 under Section 457 Cr.P.C, for getting custody of the vehicle seized by the police. The vehicle involved is a tipper lorry bearing No. KL-23-E-3311. Seizure was made by the police on 21.07.2014. 2. The application filed by the revision petitioner under **2** _Crl.R.P. No. 1492/2014_ Section 457 Cr.P.C. was resisted by the prosecution on the contention that the fact of seizure has already been reported to the District Collector, and that the vehicle is liable for confiscation by the District Collector. The legal objection raised by the prosecution is that the court will have no role when the matter is reported to the District Collector for confiscation proceedings. 3. Finding that seizure of property has not been reported to the court, or that presently there is no complaint by the police and that the District Collector, Thiruvananthapuram has already initiated proceedings, the learned Magistrate dismissed the application filed under Section 457 Cr.P.C., by order dated 11.08.2014. Aggrieved by the said order, the claimant has come out in revision. 4. On the preliminary legal objection raised by the other side regarding maintainability of revision, the learned counsel submitted that the impugned order passed by the trial court cannot be treated as an order under Section 451 Cr.P.C. because, there is no complainant or enquiry before the court, and that, some definite orders will have to be passed by the court for proper and legal custody of the property in view of the legal **3** _Crl.R.P. No. 1492/2014_ position settled by this Court in **Joshy v. The State [1986 CRI.L.J. 263(1)]** . In the said case, this Court held that when claim for custody of property is made in a situation where no inquiry or trial is pending before the court, the claim will have to be treated as one under Section 457 Cr.P.C., and orders passed under Section 457 Cr.P.C. in such a situation can be questioned in revision under Section 397 Cr.P.C. 5. Pending this proceeding, this Court directed the learned Public Prosecutor to ascertain and report whether the police has initiated legal action, or has filed complaint against the petitioner under the Act. 6. The learned Public Prosecutor cited a decision of the Orissa High Court in **Shri Aswini Kumar Patra v. State of Orissa [2005(1)OLR 402]** under a similar Act, and submitted that once property in such a factual situation is produced before the authorised officer for proper proceedings, orders cannot be passed by the court under Section 457 Cr.P.C. That was a case where the property involved was produced before the authorised officer for appropriate legal proceedings. But here, the District Collector is not the authorised officer in view of the provision **4** _Crl.R.P. No. 1492/2014_ contained in Section 21(4A), that any property seized under Section21(4) shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under Sub Section (1), and shall be disposed of in accordance with the directions of such court. Here is a case where the property was seized by the police under Section 21(4) of the Act, and any order regarding property, including confiscation orders will have to be passed by the court having jurisdiction. In a case where prosecution is pending, and the offence is compounded as provided under Section 23A of the Act, orders regarding property can be passed by the competent court. When the prosecution proceedings stand terminated on composition, the court can pass final orders under Section 452 Cr.P.C. Thus, I find that in no circumstance can the District Collector pass orders regarding custody or confiscation of property seized under Section 21(4) of the Act. 7. The District Collector cannot act on the police report, because the property will have to be produced in court or the fact of seizure will have to be reported to the court, and the police will have to initiate prosecution under Section 21(1) of the Act. It is **5** _Crl.R.P. No. 1492/2014_ not known why the police has not so far initiated prosecution under the Act. It appears that the police is waiting for orders from the District Collector, when he is not the authority to pass any orders. Now it is submitted by the learned Public Prosecutor that the police has been making efforts to file prosecution, and that within a few days complaint will be filed by the authorised officer. Complaint, as provided under Section 22 of the Act can be made by any person or authority authorised by the Government. It is submitted that as per G.O.(Ms)No.20/14/ID dated 12.02.2014, the Government of Kerala have authorised so many authorities including the Sub Inspector of Police, Revenue Divisional Officers in the State, and the District Collectors, to exercise powers and perform functions under Sub Section (4) of Section 21 of the Act. Such an authorisation will not empower those authorities to file complaint under Section 22 of the Act. However, it is also submitted that as per G.O.(Ms) No. 917/97, the Government of Kerala have already authorised police officers of and above the rank of Sub Inspector, District Collectors, Senior Geologists etc. to file complaint under Section 22 of the Act. Of course, when such an authorisation is there, the Sub Inspector of **6** _Crl.R.P. No. 1492/2014_ Police, Attingal can very well file complaint in this case before the appropriate court. Once such a complaint is filed, appropriate orders will have to be passed by the court. Any way, when the property continues in the custody of police without legal action, some orders will have to be passed regarding custody of the property. When there is actually a complaint brought under Section 22 of the Act, the question of interim custody will have to be first decided by the learned Magistrate having jurisdiction. This Court cannot interfere at that stage. But here, there is admittedly no prosecution, and it is submitted that the police has only been thinking of filing a prosecution in the appropriate court. This Court cannot wait indefinitely. It is not known when the police will bring prosecution. The person having right to possess the vehicle, as registered owner or otherwise, will have to be given custody, subject to orders to be passed by the competent court, in case prosecution is brought. If the police does not think of bringing a prosecution, the orders passed regarding custody of property will have force as a final order. However, if prosecution is brought by the police under Section 22 of the Act, final orders will have to be passed by the competent court. Orders passed **7** _Crl.R.P. No. 1492/2014_ under Section 457 Cr.P.C. to manage the particular situation will not stand in the way of passing appropriate final orders. In case such a prosecution proceeds and a decision comes on full trial, the court can pass orders under Section 21(4A) of the Act, or under Section 452 Cr.P.C. Even in a case where the offence is compounded pending prosecution, the court trying the offence can pass orders regarding property under Section 452 Cr.P.C. when Section 23A(2) provides that no proceeding or further proceeding shall be taken against the offender in respect of offence so compounded. 8. In the above factual situation where some orders are found necessary by this Court, I find that the property can be released to the petitioner on strict conditions, of course subject to final orders to be passed by the competent court in case prosecution is brought under the Act. The police or the parties cannot wait in vain, when the authority before whom report is made has no authority to act and pass orders. It is in such a situation, orders are felt necessary in the interest of justice, by this Court. 9. In the result, this revision petition is allowed. The court **8** _Crl.R.P. No. 1492/2014_ below is directed to release the vehicle bearing No.KL-23-E-3311 to the revision petitioner on the following conditions. - a) Proper and legal documents showing that the petitioner has right to possess the property as registered owner, or otherwise under legally acceptable documents, will have to be produced by the revision petitioner before the learned Magistrate, and the learned Magistrate will have to be satisfied of his right to possess the property. - b) The revision petitioner will have to execute bond with one surety for Rs.5,00,000/- (Rupees Five Lakhs only) each to the satisfaction of the learned Magistrate. - c) Once released on bond, the vehicle shall be kept in safe custody by the revision petitioner, without being assigned or in any manner transferred under document or otherwise. - d) The revision petitioner will have to produce the property as and when required by the learned Magistrate as part of any legal proceedings. - e) Release of property will be subject to final orders to be passed by the competent court, or subject to orders of **9** _Crl.R.P. No. 1492/2014_ confiscation passed by the competent court, regarding the property. - f) This order will not stand in the way of composition of the offence, if so opted by the revision petitioner. In case of composition, before or after prosecution, the court will have to pass orders in accordance with Section 23A(2) of the Act. - g) Original document of the vehicle which the revision petitioner claims as document showing his right, will have to be kept in safe custody in the court below, and a true copy certified from the court will be issued to the revision petitioner for all legal and practical purposes. In case release of vehicle is ordered in his favour finally, he will have to produce the certified copy back in court, and the original will be returned to him. Sd/P. UBAID, JUDGE sd // TRUE COPY // P.A. TO JUDGE