Kerala High Court
Aboobacker U.V vs State Of Kerala
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY,THE 29TH DAY OF AUGUST 2014/7TH BHADRA, 1936
Crl.MC.No. 4848 of 2014 ()
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CMP.NO. 5682/2014 OF JUDICIAL FIRIST CLASS MAGISTRATE COURT, TALIPARAMBA
CRIME NO. 908/2014 OF TALIPARAMBA POLICE STATION ,KANNUR DISTRICT
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PETITIONER/ACCUSED :
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ABOOBACKER U.V., AGED 40 YEARS,
S/O.ABDULLA HAJI, UPPUVALAPPIL HOUSE,
CHAPPARAPPADAVU,TALIPARAMBA.
BY ADVS.SRI.SUNIL NAIR PALAKKAT
SRI.K.N.ABHILASH
RESPONDENT(S)/COMPLAINANT & STATE :
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1. STATE OF KERALA,
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682 031.
2. THE STATION HOUSE OFFICER,
THALIPARAMBA, KANNUR DISTRICT.PIN- 670 141.
BY PUBLIC PROSECUTOR SMT. S.HYMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 29-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
Crl.MC.No. 4848 of 2014 ()
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEX A1. COPY OF THE ORDER IN CMP.NO. 5682/2014 IN DATED 8.8.14
BEFORE THE JFCM TALIPARAMBA.
RESPONDENT(S)' ANNEXURES: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
K. Ramakrishnan, J.
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Crl.M.C.No.4848 of 2014
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Dated this, the 29th day of August, 2014.
O R D E R
This is an application filed by the petitioner challenging the order passed in Crl.M.P.No.5682/14 in Crime No.908/14 of Judicial First Class Magistrate Court, Taliparamba under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioners are the accused in Crime No.908/14 of Taliparamba Police Station. The vehicle belonging to the petitioner namely Tipper Lorry No:KL-59D-211 was seized by the Taliparamba Police on the allegation that it was used for illegal transportation of river sand and Crime No.908/2014 of Taliparamba police station was registered alleging offences under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the petitioner was arrested and the articles were seized and filed a report before the Judicial First Class Magistrate Court, Taliparamba and also sent a report to Sub Divisional Magistrate Court, Thalassery. The petitioner filed Crl.M.P.No.5682/14 before the Judicial First Class Magistrate Crl.M.C.No.4848 of 2014 : 2 : Court, Taliparamba under Section 457 of Code of Criminal Procedure. But, the learned magistrate dismissed the application by Annexure A1 order stating that since the Station House Officer, Taliparamba has already filed a report to the Sub Divisional Magistrate Court, Thalassery for initiating confiscation proceedings, the petitioner is not entitled to get the relief and dismissed the application on that ground which is being challenged by the petitioner by filing this petition.
3. The Counsel for the petitioner submitted that even if confiscation proceedings have been initiated, the power of the criminal court to grant interim custody is not taken away, but in fact, such a power has been given to that court by virtue of the newly incorporated Section 23A of the Act which has not been considered by the court below.
4. The application was opposed by the Public Prosecutor.
5. It is an admitted fact that Taliparamba police had seized the Tipper Lorry No.KL-59D-211 alleging that the vehicle has been used for illegal transportation of river sand in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and Crl.M.C.No.4848 of 2014 : 3 : registered a crime as Crime No.908/14 of Taliparamba police station and informed the matter to the magistrate court as well as submitted a report to the Sub Divisional Magistrate Court, Thalassery. The Lorry was seized and the information regarding the seizure was informed to both the courts. Once the seizure of the vehicle has been informed, then, criminal court will be getting power either under Section 451 or 457 of Code of Criminal Procedure to entertain an application for interim custody. Merely because confiscation proceedings are to be initiated or expected to be initiated is not a ground for the court to avoid such exercise of power. Further, the above Act has been amended and Section 23A has been incorporated which has come into force from 25.11.2012 which deals with the procedure to be adopted after seizure of the vehicle under this Act which reads as follows.
"23A. Confiscation of sand, vehicles, etc., (1) where any property is seized under Section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of propriety is received, the Police Officer concerned shall take steps under Section 102 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)."Crl.M.C.No.4848 of 2014 : 4 :
(2) Where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall be taken as per the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and, if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them are not satisfactory, they shall be subjected to confiscation under sub- section (4):
Provided that the disposal or release of the properties seized, for its safe custody, to any person, shall be on sufficient security and such disposal or release shall be till the completion of the confiscation proceedings under this Act:
Provided further that the sand seized shall not, for any reason be released to any person and the same shall be subjected to confiscation under sub-section (4).
(3) Where a report under sub-section (1) is received before a Sub Divisional Magistrate, a notice requiring to submit in writing within the stipulated time as stated in the notice, to show cause the reasons, if any, why the property seized under section 23 shall not be confiscated, shall be issued to the owner of, or the person having control of, the vehicle, tool, implements, loading equipment, or other article.
(4) Where the owner of the properties seized or the person having control of the same do not give explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the properties seized under section 23 have to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed to its owner or the person having its control:
Provided that the owner of the properties seized or the person having its control shall be given the liberty to reclaim it in lieu of the properties confiscated, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector.
Provided further that the sand confiscated shall not for any reason, be released by realising the value.
(5) The amount received under sub-section (4) shall, subject to the provisions of section 23D, be remitted to the River Management Fund.Crl.M.C.No.4848 of 2014 : 5 :
(6) The sand confiscated under sub-section (4) shall be sold to Nirmithi Kendra or to 'Kalavara' at such rate, as may be fixed by the Public Works Department from time to time and such amount shall be remitted to the River Management Fund.
(7) The confiscation under this section shall be in addition to the penalty provided for the offence under this Act."
6. It is clear from 23A(2) of the Act a power has been given to the magistrate before whom the case will have to be filed to consider the question of interim custody and it was specifically mentioned in that section itself that any interim custody granted will be in force till the final order of confiscation to be passed by the appropriate authorities under that Act. This aspect was considered by this court in the decision reported in Aboobacker v. State of Kerala [2014 (3) KLT 26]. These aspects were not considered by the court below while disposing the application. So, under the circumstances, this court feels that the dismissal of the application by the court below appears to be not sustainable in law and the same is liable to be set aside and the matter has to be remitted to the court below for fresh disposal in accordance with law. So, the petition is allowed and the order passed by the court below dismissing the application Crl.M.C.No.4848 of 2014 : 6 : Crl.M.P.No.5682/14 in Crime No.908/14 of Taliparamba police station is set aside and the matter is remitted to the court below for fresh disposal after considering the impact of Section 23A of the said Act and also the decision reported in Aboobacker v. State of Kerala [2014 (3) KLT 26] in accordance with law.
With the above direction and observation, the petition is disposed of.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge