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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 55 docs - [View All]
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Abdu Rahiman vs The District Collector on 29 September, 2009
Ismayil.V vs State Of Kerala on 5 August, 2010

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Kerala High Court
Moosakoya 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
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         A.K.  BASHEER,J.@@
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         Crl.M.C. Nos. 2714, 2716, 2717,@@
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         2719, 2724, 2736 & 2748 of 2005.@@
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         -----------------------------------@@
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         Dated this the 31st day of August, 2005@@
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         O R D E R @@
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((HDR 0
CRMC.2714/05 etc.
				: # :


))
.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:
        
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             "23.   Confiscation  of  vehicles:-   Whoever@@
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             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:-@@
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              (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@@
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        					(Judge)@@
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        an.
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