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Cites 8 docs - [View All]
The Indian Penal Code
Section 23 in The Indian Penal Code
Section 457 in The Code Of Criminal Procedure, 1973
The Caste Disabilities Removal Act, 1850
Section 457 in The Indian Penal Code
Citedby 10 docs - [View All]
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P.Kumar vs State Of Kerala, Represented By on 18 February, 2008
T.K.Marakkar, S/O.Kunhi ... vs The Tahsildar, Eranad on 26 March, 2007
Abdhusalam, S/O Muhammad vs The Tahsildar on 26 March, 2007
Fazalul Abideen vs The Squad Leader And Others on 26 March, 2007

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Kerala High Court
Moosakoya, S/O.Muhammed vs The State Of Kerala on 31 August, 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 2714 of 2005

1. MOOSAKOYA, S/O.MUHAMMED, ... Petitioner

Vs

1. THE STATE OF KERALA, ... Respondent

For Petitioner :SRI.BABU S. NAIR

For Respondent : No Appearance The Hon'ble MR. Justice A.K.BASHEER

Dated : 31/08/2005 O R D E R ........L.......T.......T.......T.......T.......T.......T.......J .SP 2

A.K. BASHEER,J.@@ jAAAAAAAAAAAAAAAA ------------------------------------@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Crl.M.C. Nos. 2714, 2716, 2717,@@ j

2719, 2724, 2736 & 2748 of 2005.@@ j

-----------------------------------@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Dated this the 31st day of August, 2005@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA O R D E R @@ j

((HDR 0

CRMC.2714/05 etc. : # :

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.HE 1

The petitioners are stated to be owners of goods vehicles which were admittedly seized by the Police for the alleged violation of the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001 and the Rules thereunder. The allegation against the petitioners appears to be that they had transported sand in violation of the provisions contained under the Act. However, the petitioners have raised a definite contention that the transportation was on the strength of passes issued by the local statutory authority.

2. It is not in dispute that the vehicles are now lying in the custody of the Police, though report under Section 102 of the Code of Criminal Procedure has been filed before the court of competent jurisdiction. The petitioners had filed application before the learned Magistrate for interim custody of their vehicles under Section 457 Cr.P.C. The learned Magistrate rejected the plea through a common order which is impugned in these petitions.

3. The learned Magistrate dismissed the applications since according to him, it would not be proper to interfere with the jurisdiction of the District Collector who has reportedly initiated "confiscation proceedings" as contemplated under the Act. The learned Magistrate took the view that the two conditions laid down under Section 457 of the Code were not satisfied. In this connection the learned Magistrate placed reliance on a decision of a learned Single Judge of this Court in Thimothy v. State of Kerala (1987 (1) KLT 82. The@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA learned Magistrate went on to hold that since the dictum laid down in the above decision was not "over ruled or distinquished, in the later decision in Rahim v. State@@ AAAAAAAAAAAAAAAAA of Kerala (2002 (3) KLT 340) the jurisdiction under@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Section 457 of the Code cannot be invoked. I am afraid, the learned Magistrate has proceeded at a palpably wrong tangent.

4. In this context it is necessary to refer to the relevant provisions of the Act which deals with the power of the District Collector to deal with the vehicles which are allegedly involved in illegal transportation of sand. Section 23 of the Act reads thus: .............L..T.......T.......T.......T.......T.......TJ "23. Confiscation of vehicles:- Whoever@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAA 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." ........L.......T.......T.......T.......T.......T.......T.......J The above provision only postulates that the vehicle used for transportation of sand without complying with the provisions of the Act shall be liable for seizure by the@@ CCCCCCC

Police or the Revenue Officials, apart from the violator being liable for punishment. Though the heading of the section indicates confiscation, the body of the section refers only to seizure.

5. Rule 27 of the Rules also does not refer to any power of confiscation, though the heading of the rule is otherwise. Rule 27 reads thus: ..............L.T.......T.......T.......T.......T.......T.J "27. Procedure for confiscation of vehicle:-@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (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." ........L.......T.......T.......T.......T.......T.......T.......TJ Sub-rule (3) of Rule 27 postulates that the vehicle may be returned to its owner, if he or the possessor thereof remits an amount towards the River Management Fund, equal to the price fixed by the District Collector with fine within 7 days of seizure.

6. A conjoint reading of Section 23 and Rule 27 undoubtedly shows that the District Collector is not vested with the power to confiscate a vehicle. It is true that the District Collector can recover from the owner of the vehicle an amount equal to the price fixed by him towards the River Management Fund. But the vehicle is liable to be returned to the owner if he remits the amount fixed by the District Collector. Thus it is evident that the Legislature never intended to invest any power with the District Collector for confiscation of a vehicle, even if it is found to have been used for illegal transportation of sand.

7. Confiscation is "the seizure of private property by the Government without compensation to the owner, often as a consequence of conviction for crime, or because possession or use of the property was contrary to law" (Black's Law Dictionary, Sixth Edition). The term "seizure" implies taking or removal of something from the possession, actual or constructive, of another person or persons." (ibid)

8. I have referred to the above statutory provisions in the Act and the Rules only to indicate that the power vested with the District Collector is only to impose on the owner a liability to pay an amount towards River Management Fund. However, the learned Magistrate seems to have proceeded as though the District Collector is vested with the power to confiscate the vehicle. He has mentioned in the order that the District Collector has reportedly initiated "confiscation proceedings". But as noticed earlier, the Collector does not have any power to order confiscation. His power is confined to recovery of amounts towards the River management Fund. In any view of the matter, it is clear that if a report of seizure has been made by the Police before the Court under Section 102 Cr.P.C, the court is empowered to deal with it as provided under the Code. However, the release of the vehicle by way of interim custody to its owner shall be subject to the proceedings contemplated under section 23 of the Act, read with Rule 27 of the Rules.

9. Having heard learned counsel for the petitioners and the learned Public Prosecutor, I am satisfied that the petitioners are entitled to get custody of their respective vehicles under Section 457 of the Code. The learned Magistrate shall release the vehicles to the petitioners on appropriate conditions based on the value of the vehicles, with two sureties in the like sum. Petitioners shall also file affidavits before the court below undertaking to produce the vehicles as and when directed and also not to transfer, alienate or dismantle the same till the proceedings are completed. It is made clear that release of the vehicles will be subject to the proceedings pending before the District Collector or any other authority under the Act and the Rules. Crl.M.Cs are disposed of in the above terms. .SP 1

A.K. BASHEER@@ AAAAAAAAAAAAA (Judge)@@ AAAAAAA

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-----------------------------------@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Dated this the 16th day of May, 2005@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA .PL 55

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