Shafeeq v. State of Kerala; Meeran C.K. v. State of Kerala; Ashik Muhammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941** ## **Crl.MC.No. 3451 of 2019** ## **PETITIONER:** **SHAFEEK, AGED 32 YEARS, S/O. SAINUDHEEN, KEEPPURATH HOUSE, PALLRIMANGALAM P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT. (OWNER OF SWARAJ MAZDA OPEN TIPPER BEARING REGISTRATION NO.KL.35-B-3672)** **BY ADV. SRI.AJEESH M UMMER** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE SUB INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION, ERNAKULAM DISTRICT-686661.** **3 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT-686669.** BY PUBLIC PROSECUTOR SRI, RAMESH CHAND **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.05.2019, ALONG WITH Crl.Mcs.3420/2019 AND 3432/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC Nos.3451, 3420 & 3432/2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941** **Crl.MC.No. 3420 of 2019** ## **PETITIONER:** **MEERAN.C.K., AGED 45 YEARS, S/O. KJOONJU MYDHEEN, CHEMBANKUZHIUYIL (H), PALLARIMANGALAM P.O, MAVUDY, POTHANIKKAD, KOTHAMANGALAM, ERNAKULAM DISTRICT (OWNER OF SWARAJ MAZDA LGV TIPPER BEARING REGISTRATION NO. KL-39-E-7115)** **BY ADV. SRI.AJEESH M UMMER** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 THE SUN INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION, ERNAKULAM DISTRICT - 686 661. 3 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 669.** **BY PUBLIC PROSECUTOR SRI. AJITH MURALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.05.2019, ALONG WITH Crl.MC.3451/2019 AND 432/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC Nos.3451, 3420 & 3432/2019 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941** **Crl.MC.No. 3432 of 2019** ## **PETITIONER:** **ASHIK MUHAMMED, AGED 26 YEARS, S/O. MUHAMMED. K. K., KUNNATH (H), PALLARIMANGALAM P.O, ADIVAD, ERNAKULAM DISTRICT, (OWNER OF SWARAJ MAZDA MGV TIPPER BEARING REGISTRATION NO.KL-17-G-7025)** **BY ADV. SRI.AJEESH M UMMER** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**THE SUB INSPECTOR OF POLICE,**| ||**MUVATTUPUZHA POLICE STATION,**| ||**ERNAKULAM DISTRICT - 686 669.**| |**3**|**THE REVENUE DIVISIONAL OFFICER**| ||**MUVATTUPUZHA, ERNAKULAM DISTRICT-686 669.**| **BY PUBLIC PROSECUTOR SRI. RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.05.2019, ALONG WITH Crl.MC.3451/2019 AND 3420/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC Nos.3451, 3420 & 3432/2019 4 ## **ORDER** These petitions are filed under Section 482 of the Cr.P.C seeking for issuance of a direction to the 2[nd] respondent to report the seizure of certain vehicles effected under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (‘Act 28 0f 2008’ for short) before the learned Magistrate. 2. Essential facts required for disposal of these petitions are that, on 10.05.2019, the Station House Officer, Muvattupuzha, alerted the Revenue Divisional Officer, Muvattupuzha, that provisions of Act 28 of 2008 were being violated by a group of persons and that the wetlands owned by a certain Antony T.D. and Binoy V.Thottam were being filled up illegally by dumping earth brought in four tipper lorries. Based on the said information, the revenue officials sprung into action and the vehicles bearing registration Nos.KL-30-E7115, KL-17-G7025, KL-41-D41, and KL-35-B3672 were seized under Section 19 of the Act. 3. The petitioners herein are the registered owners of the aforesaid vehicles. According to them, the provision of the Code of Criminal procedure, 1973, relating to search and seizure would apply and the offence being cognizable, the 2[nd] respondent be directed to report the seizure of the above vehicles to the Judicial Magistrate Crl.MC Nos.3451, 3420 & 3432/2019 5 having jurisdiction so as to enable the petitioners to get interim custody of the vehicles. 4. Sri. Ajeeesh.M.Ummer, the learned counsel appearing for the petitioners, submitted that in view of Section 19(2) of the Act, as soon as the vehicle is seized, report should be filed before the Judicial Magistrate under Section 102 of the Cr.P.C. He would point out that the offence under the Act is punishable with imprisonment which may extend to three years and hence, is cognizable as well. In that view of the matter, the Police is bound to register a crime and submit report before the learned Magistrate and in that event, the petitioners could have approached the learned Magistrate and secured orders for interim release of the vehicle. 5. The learned Public Prosecutor refuted the submissions of the learned counsel appearing for the petitioners and contended that seizure in all these cases were affected by the Village Officer, Vellorkunnam, and immediately after the seizure, report has been submitted in accordance with Section 20 of the Act before the District Collector. It is submitted that in view of the Special Provisions of Act 28 of 2008, the Magistrate has no powers to release a vehicle on interim custody as proceedings under Section 20 of the Act for confiscation of the vehicle has already been initiated by the District Crl.MC Nos.3451, 3420 & 3432/2019 6 Collector. He would point out that a Division Bench of this Court in **Moosakoya** v. **State of Kerala** [2008 (1) KLT 538] had occasion to consider in pari materia provisions of the Conservation of River Banks and Removal of Sand Act, 2001 and it was held that despite the provisions of Section 102 of the Cr.P.C. being made applicable and the offence being categorised as cognizable, the learned Magistrate had no powers to grant interim custody of the vehicle and the parties were directed to approach the District Collector. There is no reason to deviate in the instant case, submits the learned Public Prosecutor. 6. I have considered the submissions advanced and have perused the materials made available. In these cases, the seizure has been affected by the Village officer, Velloorkunnam, as directed by the Revenue Divisional Officer, Muvattupuzha, and not by the 2[nd] respondent as contended by the learned counsel. It is borne out from the records that report of the seizure has been submitted before the District Collector in terms of Section 20 of the Act. As held by the Division Bench in **Moosakoya** (supra), when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with the offence, the general power under the Code is subject to such enactment and interpreting the scope of such statute that dominant purpose of enacting the statute has also to be Crl.MC Nos.3451, 3420 & 3432/2019 7 borne in mind. Act 28 of 2008 was enacted to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. The vehicle, which has been seized under Section 19 of the Act, will have to be dealt with as provided under Section 20 of the Act. As per Section 12, the Authorised officers are entrusted with the powers to prevent the commission of the offences under the Act and they are also expected to submit a report as detailed under Section 12(2)(c) for initiating proceedings for their confiscation. True, the authorised officer may take photographs, make inventories, or do other things necessary for collecting evidence regarding commission of the offence and send a report to the Court of competent jurisdiction in order to prosecute the accused. However, the Act does not provide that the seizure shall be reported to the learned Magistrate. There is no provision in the Act for releasing the vehicle on interim custody either. 7. In that view of the matter, I am not inclined to issue the directions as sought for. 8. However, it appears that the question whether the vehicles owned by the petitioners are liable to be confiscated under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, Crl.MC Nos.3451, 3420 & 3432/2019 8 2008 is yet to be decided by the District Collector. The District Collector will have to take a decision in the matter, in exercise of the powers conferred on him under Section 20 and other enabling provisions of the said Act, having regard to the report submitted by the Authorised officer and after affording the petitioners an opportunity of being heard. The proviso to Sub-section (1) of Section 20 of the Act stipulates that the owner or the person in custody of the seized vehicle, shall be given an option to pay, in lieu of its confiscation, a sum equal to one and a half times its value, as may be determined by the District Collector. In such circumstances, I am of the opinion that pending the proceedings, which has necessarily to be expedited, interim custody of the vehicles can be given to the petitioners on their furnishing immovable properties as security/ bank guarantee for a sum equal to one and a half times the value of the motor vehicle to the satisfaction of the District Collector. For that purpose, the petitioners may move the District Collector concerned. It will be open to the District Collector to get a valuation report from the competent officer of the Motor Vehicles Department. The motor vehicles shall be released on the day the petitioners furnish security as mentioned above. 9. The District Collector shall endeavour to finalise the Crl.MC Nos.3451, 3420 & 3432/2019 9 proceedings initiated against the petitioners expeditiously, and in any event, within two months from the date on which interim custody is given to the petitioners. Before taking a final decision in the matter, the petitioners shall be granted an opportunity to file written objections and to make oral submissions to advance their case. These petitions are disposed of. **Sd/RAJA VIJAYARAGHAVAN V., JUDGE** PS Crl.MC Nos.3451, 3420 & 3432/2019 10 ## **APPENDIX OF Crl.MC 3451/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE REPORT PREPARED BY THE SECOND RESPONDENT DATED 10.05.2019 IN CONNECTION WITH SEIZURE OF VEHICLE OF PETITIONER.** ## **APPENDIX OF Crl.MC 3420/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE REPORT PREPARED BY THE SECOND RESPONDENT DATED 10.05.2019 IN CONNECTION WITH SEIZURE OF VEHICLE OF PETITIONER.** ANNEXURE-A2:- TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE MUVATTUPUZHA MUNICIPALITY DATED 03.09.2008. ANNEXURE-A3:- TRUE COPY OF THE APPROVED PLAN ISSUED BY THE MUVATTUPUZHA MUNICIPALITY DATED 03.09.2008. ANNEXURE-A4:- TRUE COPY OF THE SALE DEED NO.1574/2012 OF S.R.O MUVATTUPUZHA. ANNEXURE-A5:- TRUE COPY OF THE SALE DEED NO.1575/2012 OF S.R.O MUVATTUPUZHA. ## **APPENDIX OF Crl.MC 3432/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE REPORT PREPARED BY THE SECOND RESPONDENT DATED 10.5.2019 IN CONNECTION WITH SEIZURE OF VEHICLE OF PETITIONER.**