Madras High Court
Gowri vs State on 3 April, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
____________
CRL. R.C. Nos. 664/2024, etc. Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
03.04.2024
24.04.2024
25.04.2024 03.06.2024
26.04.2024
29.04.2024
30.04.2024
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
CRL. R.C. NOS.637, 664, 665, 670, 672, 674, 705, 752, 771 & 727 OF 2024
CRL. R.C. NO. 957 OF 2021
AND
CRL. M.P. NO.6871 OF 2024 in CRL. R.C. SR NO. 20529 OF 2024
CRL. M.P. NO. 7272 OF 2024 IN CRL. R.C. SR NO. 22411 OF 2024
CRL. R.C. NO. 664 OF 2024
Gowri .. Petitioner
- Vs -
State, rep. By its
Inspector of Police
Town Police Station, Hosur
Krishnagiri District 635 109. .. Respondent
Crl. R.C. No.664 of 2024 filed under Section 397 and 401 of the Code of
Criminal Procedure praying this Court to call for the records and set aside the
1
https://www.mhc.tn.gov.in/judis
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CRL. R.C. Nos. 664/2024, etc. Batch
Order dated 14.03.2024 passed in Crl. M.P. No.475 of 2024 on the file of the
learned Judicial Magistrate-II, Hosur.
For Petitioners : Mr. Mr. Deepan Uday in Crl.M.P.
No.6871/2024
Mr. G.Mohammed Aseef in Crl. RC
No.664 & 665/2024
Mr. A.Padmanabhan in Crl. RC No.
670/2024
Mr. N.Ponraj in Crl. RC No.672 &
674/2024
Mr. S.Muthukrishnan in Crl. RC
No.705/2024
Mr. K.Gandhi Kumar in Crl. RC
No.957/2021
Mr. Nishanth in Crl. RC No.771/2024
& Crl. MP No.7272/2024
Mr. S.J.Raja Janakiraman in Crl. RC
No.727/2024
Mr. S.Anbarasu in Crl. RC
No.752/2024
Mr. S.Saravana Kumar in Crl. RC
No.637/2024
For Respondents : Mr. Hasan Mohammed Jinnah, Public
Prosecutor, assisted by
Mr. A.Gopinath, GA (Crl. Side) &
Mrs. G.V.Kasthuri, APP
COMMON ORDER
Assailing the orders in and by which the respective petitions filed for release of the vehicles, which were alleged to have been involved in the offence 2 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch of illegal transportation of minerals and which stood seized by the authorised officers, the present revision petitions have been filed seeking to set aside the said orders and direct interim custody of the vehicles pending trial.
2. The vehicles of various descriptions, which are the subject matter in the respective revision petitions, were seized by the authorised officers u/s 21 (4) of the Mines and Minerals (Development & Regulation) Act, 1957 (for short ‘the MMDR Act’) along with the minerals, which were alleged to have been transported in the said vehicles. Pending finalisation of confiscation proceedings/initiation of confiscation proceedings, the respective petitioners filed petition u/s 451 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) seeking interim custody/release of the vehicle, which had come to be dismissed by the court below leading to the filing of the present petitions for the aforestated relief.
3. The vehicles involved in the alleged offences have been seized u/s 21 (4) of the MMDR Act and proceedings for confiscation are liable to be taken up in the said cases. In some of the cases, confiscation proceedings are yet to be 3 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch initiated by the authorised officer, while in some cases confiscation proceedings have been initiated. In the aftermath of the above, as the vehicles are prone to the vagaries of the atmosphere, being kept in open to sky and suffering deterioration and losing its value, the petitions seeking custody/release of the vehicles were filed, which were dismissed by the Magistrate on the ground that either confiscation proceedings have been taken up or that the apprehensions cast by the prosecution cannot be brushed aside and that prosecution therein has taken steps to initiate confiscation proceedings and, therefore, the plea for custody/release of the vehicles were rejected.
4. Learned counsel appearing for the petitioners, in unison, placed reliance on the decision of the learned single Judge of this Court in Annadurai – Vs – The Inspector of Police (Crl. O.P. Nos.646/2024, etc. – Dated 29.01.2024) and urged this Court that the court competent to release/grant interim custody of the vehicles is the Magistrate Court and irrespective of the fact that confiscation proceedings have been initiated or are pending initiation of confiscation proceedings, the Magistrate Court, which is the court competent to 4 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch take cognizance of the petition, is bound to release the vehicles and mere apprehension cannot be the basis to reject the plea of the petitioners.
5. However, contending to the contra, learned Public Prosecutor appearing for the prosecution in all the revision petitions submitted that another learned single Judge of this Court in Krishnamoorthy – Vs – The State (Crl. R.C. Nos.755/2021, etc. Batch – Dated – 23.03.2022) has held that the court competent to deal with the release of the vehicles, pending confiscation proceedings/pending initiation of confiscation proceedings is the Special Court and, therefore, rightly, the Magistrate has refused to grant interim custody/release the vehicle, which does not require interference.
6. In fact, learned Public Prosecutor also placed reliance upon the decision of a learned single Judge of the Madurai Bench of this Court in Ramar & Ors. – Vs – The State (Crl. R.C. (MD) Nos.894/2023, etc. Batch – Dated 11.10.2023), and submitted that the learned single Judge therein had not only sailed along with the orders passed in Krishnamoorthy’s case but has held that the Principal District and Sessions Judge shall receive the petition for confiscation and deal 5 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch with the same expeditiously, which, in turn, means that the Special Court, in the cadre of Session, is the court competent to deal with interim custody/release of the vehicle.
7. Learned Public Prosecutor, further pointed out that the decision of the learned single Judge in Annadurai case, more particularly, para-22 of the said order, wherein the decision in Muthu – Vs – District Collector (2018 SCC OnLine Mad 13985) has been held to be erroneously decided insofar as there is a direction therein that filing of complaints for offences under the MMDR Act before the Special Court and the confiscation or release of vehicles at the time of filing such complaints by the said court cannot be said to be good law. To come to the aforesaid finding, learned single Judge has relied on the decision of the Apex Court in Pradeep S.Wodeyar – Vs – State of Karnataka (2021 (19) SCC 62), however, it is submitted that the said decision of the Apex Court deals only with regard to taking cognizance of an offence and does not pertain to release of a vehicle involved in illegal mining.
6 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
8. In support of the aforesaid submissions, learned counsel on either side placed reliance on the following decisions :-
i) Pradeep S.Wodeyar – Vs – State of Karnataka (2021 (19) SCC 62);
ii) S.Kumar – Vs – The District Collector
(MANU/TN/3111/2023 – FB);
iii) Muthu – Vs – The District Collector (2018 SCC OnLine Mad
13985 – DB);
iv) Gurbinder Singh – Vs – State of Punjab
(MANU/PH/1888/2016 – DB);
v) Ramar – Vs – The State (Crl. RC (MD) No.470/2023, etc.
Batch);
vi) Annadurai – Vs – The Inspector of Police (Crl. O.P.
Nos.646/2024, etc. Batch)
vii) Krishnamoorthy – Vs – The State (Crl. RC Nos.755/2021,
etc. Batch);
viii) Kanniyappan – Vs – State (Crl. RC No.1767/2023);
ix) Harish Kumar – VS – Inbamathi @ Zozo (Crl. RC (MD) Nos.144 & 145/2024);
x) Gangula Ashok & Anr. – Vs – State of AP (2000 (1) SCR
468);
xi) Sengol & Ors. – Vs- State &Ors. (Crl. OP (MD) No.13173/2011, etc.);
xii) State of NCT of Delhi – Vs – Sanjay (AIR 2015 SC 75);7
https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
xiii) Kanwar Pal Singh – Vs – State of UP &Anr. (2020 (1) SCALE
33);
xiv) Jayant & Ors. – Vs – State of MP (2021 (2) SCC 670);
xv) The District Collector &Ors. – Vs – Muthu & Ors. (Rev. Apl
(W) 80 to 82/2019 – DB); and
xvi) Raji – Vs – State (Crl. RC No.41/2024)
9. This Court gave its careful consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record and also the decisions relied on by the learned counsel appearing on either side.
10. Two conflicting decisions with regard to the court, which is competent to deal with a vehicle alleged to have been involved in illegal mining operations have been pressed into service by the respective parties in support of their case. In case of any conflict in the decision between coordinate Benches of equal strength, though this Court can very well, upon appreciation of the materials, tag along with the decision that is legally tenable, however, normally, to give a quietus to the issue, the matter would be better referred to a Larger Bench for an authoritative pronouncement to clarify which of the said decision is legally 8 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch correct. However, in the present case, two decisions are staring writ large on the face of this Court, which contradicts each other, with regard to the court, which has jurisdiction to release the vehicle.
11. Ancillary to the above conflict, this Court, even at the very outset entertains a doubt as to whether grant of interim custody of a vehicle, which has been seized u/s 21 (4) of the MMDR Act is permissible, as Section 21 (4-A) of the MMDR Act only speaks of confiscation of the vehicles so seized by passing orders for its disposal. In such a situation, whether interim custody of the vehicle would be available as provided for u/s 451 of the Code, when provision for confiscation alone is provided for u/s 21 (4-A) of the MMDR Act.
12. Coming to the case on hand, the petitioners place reliance on the decision in Annadurai case, wherein learned Brother, N.Anand Venkatesh, J., has held as under :-
29.With all due respect, the aforesaid observations may not reflect the correct legal position. A plain reading of Section 21(4-A) discloses that the power to initiate confiscation proceedings lies before the Court competent to take cognizance 9 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch of the offence. In view of the discussion in the preceding paragraphs, the Principal District Court cannot directly cognizance of an offence under the MMDR Act in the light of the decision of the Supreme Court in Pradeep S. Wodeyar v.
State of Karnataka, (2021) 19 SCC 62which has unfortunately not been brought to the notice of the learned judge. Consequently, the question of initiating confiscation proceedings before the Principal District Court does not arise. A decision which follows a per incuriam decision alsodoes not constitute a binding precedent (See Hindustan Construction Co. Ltd. v. Union of India, (2020) 17 SCC 324).
30.In view of the aforesaid discussion, the legal position can be summarised as under:
(a)The power to initiate confiscation proceedings and issue directions for 30 of 34 release/disposal of the property under Section 21(4-A) of the MMDR Act, 1957 lies with the Court and not with any other authority;
(b)Section 21(4-A) expressly states that the Court competent to initiate confiscation proceedings and issue directions for the disposal of the seized material is the court competent to take cognizance of the offence under Section 21(1) of the Act;
(c)The Special Court constituted under Section 30-B of the MMDR Act, 1957 is invested with the powers of a Court of Session under Section 30-C. Consequently, the Special Court 10 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch being a Court of Session cannot directly take cognizance of an offence under the Act in view of the bar contained in Section 193 Cr.P.C and in the light of the law laid down in paragraph 38 of the decision in Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62;
(d)As a consequence, a complaint under Section 21 of the MMDR Act, 1957 can be filed only before the jurisdictional Magistrate empowered to take cognizance of the offence (State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, Kanwar Pal Singh v. State of U.P., (2020) 14 SCC 331 and Jayant v. State of M.P., (2021) 2 SCC 670), and not before the Special Court;
(e)Ex-consequenti, the Court for the purposes of Section 21(4-A) is the Court of the Magistrate since it is that Court which is empowered to take cognizance of the offences under Section 21(1). Hence, an application for release of vehicle will lie only before the jurisdictional Magistrate;
(f)The decisions of this Court in Muthu v District Collector (2018 SCC Online Mad 13985), the order passed in review dated 09.09.2019, the decision of the Full Bench in S. Kumar v District Collector (2023) 3 MLJ (Cri) 536 and that of the learned single judge Ramar v The State (Cr R.C MD 470 of 2023) dated 11.10.2023, to the extent that it is inconsistent with the decisions of the Supreme Court in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, Kanwar Pal Singh v. State of U.P., (2020) 14 SCC 331and Jayant v. State of M.P., (2021) 2 SCC 11 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch 670 and paragraph 38 of the decision in Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62, as discussed above, do not lay down the correct law.” (Emphasis Supplied)
13. The aforesaid order had come to be passed on 29.01.2024. However, even prior to the order in Annadurai case, another learned Judge of this Court, A.D.Jagadish Chandira, J., in Krishnamoorthy case (Crl. R.C. No.755/2021, etc., Batch), even on 23.03.2022, had held that in respect of vehicles seized under the MMDR Act, where confiscation proceedings have not been initiated, then confiscation proceedings would be taken up only before the Special Court, the relevant portion of the said order is as under :-
“18. Once again coming to sub-section (4-A) of Section 21 of the Mines and Minerals (Development & Regulation) Act, 1957, it emphasizes that any mineral, tool, equipment, vehicle or any other thing seized under sub-section (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, which means that disposal of the seized vehicles shall be in accordance with the directions of such Court, viz., the Special Court.” 12 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch (Emphasis Supplied)
14. It is to be pointed out that the order passed in Krishnamoorthy case was anterior in point of time to the order passed in Annadurai case. While in Annadurai caseithas been held that the petition for confiscation/interim custody of vehicles can be filed only before the Magistrate Court, however, in Krishnamoorthy case, it has beenheld that the petition for confiscation of vehicles shall be only before the Special Court. Therefore, to that extent, there is conflict with regard to the courtwhich is endowed with jurisdiction to entertain the petition. Further, while in Annadurai case, speaks about interim custody of the vehicle, however in Krishnamoorthy case, it is conspicuously absent. It is further seen that the order in Krishnamoorthy case has not been brought to the notice when the order in Annadurai case had come to be passed. Even otherwise, learned single Judge, in Annadurai case, relying upon Section 21 (4-A) as also the decision in Pradeep Wodeyar case has held that there is no necessity to place the matter before a Larger Bench for adjudication in view of the decision in Pradeep Wodeyar case and, therefore, went along to hold that the Court which is empowered to take cognizance of the offence u/s 21 (1) is the Court 13 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch which has jurisdiction to deal with an application for release/confiscation of vehicle and that would be only before the Magistrate Court.
15. Normally, in a situation of this nature, where there is a sea of ambiguity in the orders having been passed by coordinate Bench of equal strength, judicial decorum warrants this Court to refer the matter to a Larger Bench so as to settle the issue once and for all. However, in Annadurai case, the learned Judge had pondered about a reference, but ultimately, for the following reasons, went ahead with giving a finding, on the basis of the decision in Pradeep Wodeyar case and to this end, the learned Judge had observed as under
:-
“27.This Court did ponder as to whether a reference ought to be made since the inconsistencies noticed were that of a judgment of a Full Bench of this Court, which would ordinarily bind this Court. However, the Court has been spared the task since the points involved are directly covered by the decisions of the Supreme Court. Where the decision of the High Court is not in consonance with the decisions of the Supreme Court the said decision would be per incuriam. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, the Supreme Court has pointed out as under:14
https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch “19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co- equal or larger Bench; or if thedecision of a High Court is not in consonance with the views ofthis Court.” That apart, as was pointed out by the Supreme Court in Shah Faesal v. Union of India, (2020) 4 SCC 1, references take up substantial judicial time and should not be made in a casual and cavalier manner especially when the issues are already covered by the decisions of the Supreme Court.”
16. The decision in Pradeep Wodeyar case had prevailed upon the learned single Judge to take the said view. Therefore, to satisfy itself, this Court perused the decision of the Apex Court in Pradeep Wodeyar case and upon a perusal, 15 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch more particularly, Para-38, which has been relied on in Annadurai case, the Apex Court had gone on to hold as under :-
“38. Section 193 CrPC states that the Sessions Court shall not take cognizance of an offence as a Court of original jurisdiction unless the Magistrate commits the case to it. The only exception is if it is expressly provided otherwise by the Code or the statute. Neither the Code nor the MMDR Act provide that the Special Court could directly take cognizance of the offences. Therefore, the Sessions Court did not have the authority to take cognizance. Section 209 CrPC provides the Magistrate the power to commit the case. In Dharam Pal v. State of Haryana, a Constitution Bench 24 , while discussing whether the committing court was required under Section 209 to take cognizance of the offence before committing the case to the Court of Sessions, held that the Magistrate could either commit the case before or after taking cognizance. In this case, the Special Court has directly taken cognizance. It now needs to be determined if this irregularity in the cognizance order vitiates the entire proceedings for the order to be quashed and set aside.” (Emphasis Supplied)
17. Predicating upon the fact that Special Court is not empowered to take cognizance and it is only the Magistrate Court, which can take cognizance of an 16 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch offence u/s 21 (1) of the MMDR Act, learned Judge in Annadurai case had held that the interim custody/confiscation of vehicle in cases relating to seizure of vehicle under the MMDR Act would be only before the Magistrate Court, which has the jurisdiction.
18. This Court, with a view to find out whether such a direction, if at all, relating to release of vehicle to be within the jurisdiction of the Magistrate, has been given in Pradeep Wodeyar case, embarked on finding out whether such a direction had been given. But for the interpretation therein with regard to the court which could take cognizance of an offence, which has been extracted above, there is no specific order by the Apex Court holding that release/interim custody of the vehicle is permissible and that it can be made only before the Magistrate Court.
19. First of all there is no quarrel with the proposition that so long as the provisions of the Code are not inconsistent with the special enactment, viz., the MMDR Act, the provisions of the Code would stand applicable. However, the provisions of the Code should be applicable in such a manner so as not to defeat 17 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch the purpose behind the enactment of the MMDR Act and the various rigours provided therein.
20. Release of vehicle is provided for under Chapter XXXIV of the Code. Under Section 451 therein, the court may order for custody and disposal of property during inquiry or trial in certain cases and the said provision is quoted hereunder:-
“451. Order for custody and disposal of property pending trial in certain cases :
When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.-For the purposes of this section, "property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody, 18 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.”
21. Any property, which is produced before any criminal court during any inquiry or trial, the court may make such order if it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial and if the property is subject to speedy and natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. From the above provision, it is evidenced that two contingencies are envisaged in which, custody could be granted during inquiry or trial or disposal/sale of the property may be ordered by such court.
22. Invoking the aforesaid provision, petitions are being filed before the Magistrate Court seeking custody of the vehicles, so seized, pending trial, and in the present cases, the vehicles which were seized, are alleged to have been involved in illegal transportation of minerals. 19 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
23. Section 21 of the MMDR Act only provides for the confiscation of the vehicle, which has been seized u/s 21 (4). The said Section 21 (4-A) is nestled under the heading “Penalties” that go along with the contravention relating to mining of minerals and the said provision is quoted hereunder :-
“Penalties
21. [(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.] (2) Any rule made under any provision of this Act any provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both, and in the case of continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction ny the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if 20 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch necessary, obtain the help of the police to evict the trespasser from the land.
[(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (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.] (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal procedure, 1973, an offence under sub-section (1) shall be cognizable.” 21 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
24. In the present batch of petitions, it is the plea of the petitioners that since Section 21 (4-A) does not contain any embargo for release of the vehicle, as it is not explicitly prohibited under the MMDR Act, the Court, which is vested with jurisdiction, could very well entertain a petition seeking interim custody of the vehicle, which is filed u/s 451 of the Code as the same is not inconsistent with the special enactment.
25. Sub-section (4-A) to Section 21 prescribes that any mineral, tool, equipment, vehicle or any other thing seized under sub-section (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.
26. Relying upon the clause in sub-section (4-A), which prescribes that the court competent to take cognizance of the offence under sub-section (1) shall be the court which could release the vehicle by passing an order, the decision in Annadurai case had come to be penned by the learned single Judge. 22 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
27. The whole decision in Annadurai case is premised on the finding rendered in Pradeep Wodeyar case that under Section 21 (4-A), the Court competent to take cognizance under sub-section (1) is the Magistrate Court. Learned Judge had gone on to hold that the said court alone can deal with confiscation and interim custody/release of the vehicle on the analogy that the Magistrate Court was held to be the court competent to take cognizance thereby, the Magistrate Court alone is invested with powers to deal with confiscation and release of the vehicle.
28. However, the Division Bench of this Court in Muthu – Vs – The District Collector &Ors. (W.P. (MD) No.19936/2017 – Dated 29.10.2018) had issued a slew of directions with a view to controlling the rampant mining activities being carried, the relevant portion of which is quoted hereunder :-
“13. As recorded earlier, illegal mining is carrying on unabatedly under the very nose of the revenue officials, which can be taken judicial note of this Court with a fond hope that the same can be controlled in future. Hence, we issue the following directions:
(i) The District Level Task Forces and Taluk Level Task Forces, constituted pursuant to the order passed in WP(MD) 23 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch No. 9806 of2018 should follow the G.0.(Ms) No. 135 Industries (MMA.1)Department, dated 13.11.2009 in letter and spirit.
(ii) As stated in the above said Government Order, periodical meetings will have to be held followed by Revenue which is inclusive of action taken/to be taken for the illicit mining.
(iii) Steps will have to be taken for dereliction of the duty by the concerned officials.
(iv) Taluk Level Task Forces shall also comply with the directions issued in the Government Order by making frequent surprise checks and submit their report to the District Level Task Forces.
(v) The Taluk Level Task Forces shall meet every fortnight as mandated in the Government Order.
(vi) The responsibility fixed in the Government Order will have to be strictly construed and action will have to be taken against the erring Village Administrative Officer, Tahsildar, Officer in-charge of Department of Geology and Mining at District Level.
(vii) Action taken report will have to be sent by the District Collector concerned for the purpose of taking necessary action.
The District Collector concerned shall take appropriate departmental action by himself as when Rules provide so.
(viii) Separate records will have to be maintained by the Village Administrative Officer, Tahsildar and Officer in-charge 24 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch of the Department of Geology and Mining with respect to the cases involving illicit mining.
(ix) As and when illicit mining is reported, the same will be recorded in the records.
(x) The respective District Collectors will have to ensure by making vide publicity of phone particulars assigned to the District Level Task Forces and the Talk Level Task Forces, so that, the general public can give their complaints. There should be affixture or display of the phone particulars in the Collectorate, Taluk office, Office of Deputy Director and Assistant Director of Geology and Mining and that of the Village Administrative Officer.
(xi) Complainant will have to be intimated on the action taken within a period of one week from the date of receipt of the complaint. A complaint shall also be received even when made through phone calls.
(xii) Complaints by an authorised person under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 or to be made immediately and not later than one week from the date of seizure.
(xiii) Whenever, a final report is filed for the offence under Section379 IPC by the jurisdictional police before the jurisdictional Magistrate, the same shall also be committed to the Special Court. This is for the reason that it would be appropriate to deal with both the police case and the private 25 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch complaint by the same Court and in order to avoid any possible conflict.
(xiv) The revenue officials at the time of seizure can issue a memo to the person in-charge of the vehicle, mineral among other things, indicating the seizure made, along with the date and time.
(xv) In so far as the seized vehicles are concerned, they shall be produced before the concerned Magistrate Court by the revenue authorities at the time of filing their respective complaints.
(xvi) Any application for release of vehicle etc., can only be filed before the Special Court above.
(xvii) Any violation of the above would constitute a contempt of the order passed by this Court, for which, appropriate application can either be filed before the First Bench of this Court or any other Bench as per the direction of the Hon'ble Chief Justice.” (Emphasis Supplied)
29. In the aforesaid decision in Muthu case, while the Division Bench had directed the seized vehicles to be produced before the concerned Magistrate Court while filing the respective complaints, however, insofar as release of vehicles, etc., it had mandated that applications can be filed only before the 26 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch Special Court. Thus, the Division Bench in Muthu case had held that production of vehicles so seized would be before the Magistrate Court, but its confiscation and release would be only before the Special Court.
30. Taking cognizance has prevailed upon in rendering a finding with regard to the court which is empowered to pass orders for confiscation the vehicle u/s 21 (4-A) in Annadurai case.
31. In this regard, useful reference can be had to the reliance placed on the decision in Kishun Singh – Vs – State of Bihar (1993 (2) SCC 16), which finds reference in the decision in Pradeep Wodeyar case and the relevant portion is quoted hereunder :-
“52. In Kishun Singh v. State of Bihar, the question before the Court was whether the Court of Sessions to which a case has been committed to for trial by the Magistrate, can without recording evidence, summon a person not named in the police report by exercise of its power under Section 319 CrPC. The two judge Bench held that when a case is committed to the Court of Sessions by the Magistrate under Section 209 on the ground that it is exclusively triable by it, the Sessions Court would have 27 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch the power to take cognizance of the offence. It was thus held that since cognizance is taken of the offence and not the accused, if any material suggests the complicity of other persons in the offence, the Court of Sessions can summon such other persons. The court, by drawing a comparison between Section 193 of the Code of 1973 and the Code of 1898, and on a reading of Section 209 CrPC held that both the committal and cognizance is of the offence and not the accused/offender. Justice AM Ahmadi (as the learned Chief Justice then was) summarized the position in law in the following observations:
“7. […] Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in clauses (a), (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. Even though the expression ‘take cognizance‘is not defined, it is well settled by a catena of decisions of this Court that when 28 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender.
* * * * * * * It may immediately be noticed that under the old provision a Court of Session could not take cognizance of an offence as a court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier, under Section 190 cognizance has to be taken for the offence and not the offender; so also under Section 193 the emphasis now is to the committal of the case and no more on the offender. So also Section 209 speaks of committing the case to the Court of Session. On a conjoint reading of these provisions it becomes clear that while under the old Code in view of the language of Section 193 unless an accused was committed to the Court of Session the 29 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch said court could not take cognizance of an offence as a court of original jurisdiction; now under Section 193 as it presently stands once the case is committed the restriction disappears.
16… ...Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.”
53. In other words, upon the committal by the Magistrate, the Court of Sessions is empowered to take cognizance of the whole of the incident constituting the offence. The Court of Sessions is thus invested with the complete jurisdiction to summon any individual accused of the crime. The above principles were reiterated in a two judge Bench decision in 30 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch State of W.B. v. Mohd. Khalid. Justice S Mohan speaking for the Court observed:
“43. ....... Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ‘cognizance‘ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.”
54. In Dharam Pal (supra), a Constitution Bench was deciding on whether the Court of Sessions has the power under Section 193 CrPC to take cognizance of the offence and then summon other persons not mentioned as accused in the police report. The issue was referred to a five-judge Bench in view of the conflicting decisions in Kishun Singh (supra) and Ranjit Singh v. State of Punjab. As discussed above, while in Kishun Singh (supra), it was held that the Sessions Court held such a 31 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch power under Section 193 CrPC, it was held in Ranjit Singh (supra) that from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 CrPC, the Court could not arraign any other person as the accused. Chief Justice Altamas Kabir, speaking for the Constitution Bench affirmed the view in Kishun Singh (supra) on the ground that the Magistrate before whom the final report is submitted has ample powers to disagree with the report filed by the police under Section 173(2) and to proceed against the accused persons de hors the police report. However, if the interpretation in Ranjit Singh (supra) were to be followed, it would lead to an anomaly where the Sessions Court would not have this power till the Section 319 stage is reached, which the Magistrate would otherwise have. In that context, the Constitution Bench observed:
“35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in 32 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.”?
(Emphasis Supplied)
32. “Cognizance” is the basis on which the Court, which has jurisdiction, is decided in Annadurai’s case. However, even as per the various decisions of the Apex Court, which finds place in the decision in Pradeep Wodeyar case, cognizance is a relative term and cognizance merely means that the court of first instance, viz., the Magistrate Court, when takes cognizance, it only means that an offence is brought to the notice of the said Magistrate, which court, based on the triability of the offence, either takes the case upon itself or commits it to the Session Court.
33. The aforesaid position would be clear from the ratio laid down by the Constitution Bench in Dharam Pal case, which also finds reference in Pradeep Wodeyar case, which has been extracted supra, wherein the Constitution Bench has held that “if on being satisfied that a case had been made out to proceed 33 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter”.
34. From the aforesaid decision, it is clear that the role of the Magistrate is very limited, so to say, to find out as to the triability of the case and if it before the Court of Session to commit it or if it is triable by the Magistrate, then proceed to try the same. Insofar as MMDR Act is concerned, it is exclusively triable by the Special Court, which is in the cadre of Session and, therefore, the start of the proceedings is before the Court of Session once the matter is committed to it by the Magistrate, who takes judicial notice of the offence. This clearly shows that the application of mind by the Magistrate is only to find out whether an offence has been committed and, if so, based on its triability, to try it or to commit it to the Court of Session.
35. Be that as it may. Section 21 (4-A) of the MMDR Act, which has been extracted supra, spells out that the vehicle, which is seized u/s 21 (4) is liable to 34 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch 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. The aforesaid provision is unambiguous and clear and it speaks only about an order of confiscation and consequent disposal of the vehicle. It does not in any manner speak about interim custody/release of the vehicle. The only thing, that is to be looked at is whether the order for disposal could also include interim custody/release of the vehicle.
36. Seizure of vehicle is involved under five different enactments, including the MMDR Act. Seizure of vehicles is made under MMDR Act, EC Act. Forest Act, NDPS Act and Motor Vehicles Act. Pari materia provisions with regard to seizure, confiscation and release of the seized vehicles are provided under the respective Special enactments and for better appreciation of the issue at hand, the same are quoted hereunder :-
NDPS Act :
60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.
[(1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, 35 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation].
(2) Any narcotic drug or psychotropic substance 2[or controlled substances"] lawfully produced, imported inter- State, exported inter State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drugs or psychotropic substance [or controlled substances"]which is liable to confiscation under sub-section (1) and the receptacles, packages and covering in which any narcotic drug or psychotropic substance, [or controlled substances]50 materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.
(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance, [or controlled substances]51 or any article liable to confiscation under sub-section (1) or subsection (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precaution against such use.
36 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch * * * * * * *
63. Procedure in making confiscations.
(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under Section 60 or Section 61, or Section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under Section 60 or Section 61 or Section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly; Provided that no order or confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim:
Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, [controlled substance the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, if may at any time direct it to be sold; and the provision of this sub-section shall, 37 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch as nearly as may be practicable, apply to the net proceeds of the sale.
Forest Act :
52. Seizure of property liable to confiscation.-
(1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest- officer or Police-officer.
(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a - report of such seizure to the Magistrate having jurisdiction to try the offence on account which the seizure has been made:
Provided that, when the forest-produce with respect to which such offence is belie to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.
53. Power to release property seized under section 52.-
Any Forest-officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats, carts or cattle under section 52, may release the same on the execution by the owner thereof a bond for the production of the 38 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.
54. Procedure thereupon.-Upon the receipt of any such report, the Magistrate shall, with all convenient despatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.
55. Forest-produce, tools, etc., when liable to confiscation.-- (1) All timber or forest produce which is not the property of Government and in respect of which a forest-offence has been committed, and all tools, boats, carts and cattle used in committing any forest offence, shall be liable to confiscation. (2) Such confiscation may be in addition to any other punishment prescribed for such offence.
6A. Confiscation of essential commodity— (1) Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection 39 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch before him, and if he is satisfied that there has been a contravention of the order may order confiscation of —
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity : Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds in pursuance of an order made under section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds have been produced by him, be confiscated under this section :
Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. (2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (I), is of the opinion that the essential commodity is subject to 40 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch speedy and natural decay or it is otherwise expedient in the public interest so to do, he may—
(i) order the same to be sold at the controlled price, if any, fixed for essential commodity under this Act or under any other law for the time being in force; or
(ii) where no such price is fixed, order the same to be sold by public auction : Provided that in case of foodgrains, the collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retail sale of such foodgrains to the public.
(3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall—
(a) where no order or confiscation is ultimately passed by the Collector,
(b) where an order passed on appeal under sub- section (1) of section 6C so requires, or
(c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the 41 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch person concerned is acquitted be paid to the owner or the person from whom it is seized.
6B. Issue of show cause notice before confiscation of essential commodity— (1) No order confiscating any essential commodity shall. be made under section 6A unless the owner of such essential commodity package, covering, receptacle, animal, vehicle, vessel or other conveyance or the person from whom it is seized— a (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the essential commodity package, covering, receptacle, animal, vehicle, vessel or other conveyance; (b) is given an opportunity of making a presentation in wiring within such reasonable time as may be specified in the notice against the ground of confiscation; and (c) is given a reasonable opportunity of being heard in the matter.
(2) Without prejudice to the provisions of sub-section (1), no order confiscating any animal, vehicle vessel or other conveyance shall be made under section 6A if the owner of the animal, vehicle vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and that each 42 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch of them had taken all reasonable and necessary precautions against such use.
(3) No order confiscating any essential commodity package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be invalid merely by reason of any defect or irregularity in the notice, given under clause (a) of sub-section (1), if, in giving such notice, the provisions of that clause have been substantially complied with.
* * * * * * * * 6E. Bar of jurisdiction in certain cases—Whenever any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, or any package, covering or receptacle in which such essential commodity is found, or any animal, vehicle, vessel or other conveyance used in carrying such essential commodity is seized pending confiscation under section 6A, the Collector, or as the case may be, the State Government concerned under section 6C shall have, and, notwithstanding any thing to the contrary contained in any other law for the time being in force, any court, tribunal or other authority shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance. 43 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch Motor Vehicles Act :
207. Power to detain vehicles used without certificate of registration permit, etc. – (1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 or section 39 or without the permit required by subsection (1) of section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle :
Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of section 3 or section 4 or without the permit required by sub-section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgement in respect thereof. (2) Where a motor vehicle has been seized and detained under subsection (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the 44 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch vehicle and such authority or officer may, after verification of such documents, by order, release the vehicle subject to such conditions as the authority or officer may deem fit to impose.” (Emphasis Supplied)
37. The four enactments, which have been quoted above are special enactments and the applicability of the Code of Criminal Procedure would only be to the extent that so long as the said provisions of the Criminal Procedure Code are not inconsistent with the special enactment. There could be no quarrel with the aforesaid proposition.
38. MMDR Act, as like the above enactments, is a special enactment and, therefore, so long as the provisions of the Code of Criminal Procedure are not inconsistent with the special enactment, the said provisions would be applicable to MMDR Act. Section 30-C of the MMDR Act pertains to the powers of the Special Court, which is deemed to be a Court of Session and for better appreciation, the same is quoted hereunder :-
“30-C. Special Courts to have powers of Court of Session.- Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to the proceedings 45 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch before the Special Court and for the purpose of the provisions of this Act, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a public prosecutor.”
39. Similar provision is found under the other special enactments, which have been quoted above. In the light of the said position, a careful perusal of the aforestated special enactments reveal that in all the enactments, while seizure is provided for, followed by the procedure for confiscation, however, during the confiscation proceedings or even otherwise, release/interim custody of the vehicle is contemplated therein in the special enactments, as the owner of the vehicle is enabled to establish the involvement of the said vehicle without his knowledge, whereinafter, the court could grant interim custody of the vehicle to the owner. Therefore, there is a specific provision under the said special enactments based on which orders could be passed for release/interim custody of the vehicle, for which applications are filed u/s 451 Cr.P.C. by resorting to the provisions under the special enactments. However, conspicuously, no such provision is provided for under the MMDR Act and furthermore, such a provision 46 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch is absent u/s 21 (4-A) of the MMDR Act, as it provides only for confiscation and there is no clause relating to release/interim custody of the vehicle.
40. The vehicles, which are seized by the authorised officers, are alleged to have been involved in illegal transportation of minerals. Rampant illegal mining activities have the tendency of affecting the lives of the entire citizenry and it is a crime against the society. In Pradeep Wodeyar case, Supreme Court has culled out the essence behind the enactment of MMDR Act and the words of the Apex Court is reproduced hereunder :-
“49.3. .............. Offences under the MMDR Act are environmental crimes. These crimes impact upon society at large. These offences cause a detriment to and affect the well- being of the entire community. Environmental crime is not confined within geographical or state limits. The impact of environmental crime transcends borders and time. Environmental crime may or may not have an immediately identifiable human victim but there can be no mistaking its consequence for the entire bio-system of which human beings are an intrinsic, but not the only, element. Environmental crime is in essence a planetary crime – it affects every component of the natural systems with which the planet has been endowed.47
https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch They constitute our heritage; a heritage which is held in trust by the present for the future. Illegal mining denudes the eco- system of valuable resources. The destruction of the natural environment has serious consequences for the present and the future. The MMDR Act must hence be construed in this perspective. At one level, illegal mining deprives the state of its revenues. But the law is not merely a revenue yielding or regulating measure. The essence of the law is to protect human kind and every species whose existence depends on natural resources from the destruction which is caused by rapacious and unregulated mining. The offences which have been taken into account by Parliament while enacting sub- sections (1) and (1A) of Section 4 intrinsically affect the environment which, in turn, affects the existence of communities who depend on the environment and of every species to whom it provides nurture and sustenance. It is because of the wide-ranging impact of such offences on the life of the community and on the well-being of not only the present, but of the succeeding generations, that principles such as the precautionary principle, the public trust doctrine and the concept of sustainable development have gained a sure jurisprudential foundation. In environmental crime, there may be no single, immediate victim. The act which predicates the offence is a crime against humanity. These crimes might not be perceived in the present to have immediate, foreseeable or 48 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch quantifiable repercussions but there is no mistaking that they impact the life of future generations;
49.4. The Preamble of the Act at the time of its enactment indicated that it is an “Act for regulation of mines and the development of minerals”. This was substituted by Act 38 of 1999 to emphasise that the “Act provides for the development and regulation of mines and minerals”. The amendment to the Preamble is indicative of the intent of the legislature that development and regulation must proceed hand-in-hand, and in order to reduce the increasing magnitude of environmental crime, development needs to be regulated and sustainable. Thus, when Parliament amended the MMDR Act to include Section 30B in 2015 for the constitution of Special Courts which would be deemed to be Courts of Session conferred with all requisite powers, the object and purpose of the legislative provision must be borne in mind.
The ultimate object of the provision is to ensure that violators are punished by a speedy process of trial before a court duly constituted in that behalf.” (Emphasis Supplied)
41. The ultimate object with which the MMDR Act had been enacted should play a part in the Court interpreting the provisions with regard to release of the vehicle, if at all, such a power is provided under the Act. 49 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
42. In the light of the above, as could be seen, Section 21 (4-A) provides only for passing of orders for confiscation of the vehicle and the terminology used is that upon confiscation proceedings, orders could be passed for disposal of the vehicle. Yet, in Annadurai case order has been passed holding that the Magistrate Court is empowered to release the vehicle/grant interim custody of the vehicle, at all times, while in Krishnamoorthy case, it has been held that no release is permitted if confiscation proceedings have been initiated, however, the said order is silent with regard to matters, where steps have not been taken by the authority for confiscation. However, in Ramar case, it has been held that where confiscation proceedings have not been initiated, then release could be sought for, but where confiscation proceedings have been taken up, then release could not be ordered. Further, in Ramar case, learned Judge had gone on to hold that confiscation proceedings should be initiated forthwith, meaning thereby that releasing the vehicle/granting interim custody would not be in the interest of the larger interests of the environment and the society as well. 50 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
43. Section 21 (4-A) only provides for confiscation and disposal of vehicle and there is no contemplation of release/grant of interim custody of the vehicle under the MMDR Act, as has been provided for in the other special enactments. However, it is pleaded that Section 451 of the Code not being inconsistent with the special enactment, Section 451 of the Code could be enforced for the purpose of seeking interim custody. Though such a contention is advanced, if the intention of the Parliament is clear, can anything be imported into the intention of the Parliament, which has conspicuously left out release by mandating that there could only be confiscation of the vehicle followed by orders for disposal of the same by such Court. When there is no ambiguity with regard to the provision u/s 21 (4-A), which has not spoken about interim custody of the vehicle pending confiscation proceedings in MMDR Act, whilst in the other special enactments such provision is provided, could this Court read something into the provision, which has been conspicuously omitted by the Parliamant. However, as pointed out above, three different views of the learned single Judges of this Court with regard to release of vehicle are there and it would not be in the interest of this Court and it would be against judicial decorum if this Court gives another view, not in line with the views already taken in this regard. 51 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch Therefore, necessarily this issue has to be placed before a Larger Bench for giving a composite view, which could be followed by the courts below, as the ambiguity in the decisions, aforesaid, leads to a stalemate and the courts below, be it the Magistrate Court or the Special Court, would not be in a position to decide the issue one way or the other. Hence, a reference of the issue is very much necessary in the interest of justice to find out whether the Courts are empowered to grant release/interim custody of the vehicle, which have been seized under sub-section (1) of Section 21 when only confiscation of the vehicle so seized u/s 21 (4) is provided for under Section 21 (4-A) of the MMDR Act.
44. The other issue, which crops up parallel is the finding rendered in Annadurai case, wherein it has been held that it is only the Magistrate Court, which is empowered to confiscate the vehicle, whereas, the Division Bench in Muthu case and the learned single Judges in Krishnamoorthy case and Ramar case have held that the confiscation proceedings could be taken up only before the Special Court. Therefore, there is a conflict in the Court, which is vested with jurisdiction to entertain a plea for interim custody of the vehicle. 52 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
45. Though in Annadurai case, it has been held that there is a clear finding in Pradeep Wodeyar case that it is only the Magistrate Court which is empowered to confiscate the vehicle, as Section 21 (4-A) provides that the court competent to take cognizance of the offence under sub-section (1) would be the court that shall pass directions for disposal of the proceedings relating to confiscation. However, Ramar and Krishnamoorthy as also the Division Bench in Muthu have held that it is only the Special Court, which could take up the issue relating to confiscation of the vehicle seized by the authority u/s 21 (4).
46. Though this Court, hitherto above has decided to refer the issue relating to the release/interim custody of the vehicle to a Larger Bench, however, the court which is competent to deal with the said issue, also suffers diametrically opposite views, and this Court deems it fit that this issue also needs to be settled for which a reference is necessitated, as otherwise the courts below would be left in lurch and would not be in a position to know which ratio to follow. However, before making such reference, the factors, which weighs in 53 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch the mind of this Court to go ahead with referring the said issue, requires to be spelt out.
47. Cognizance of the offence and the court competent to take cognizance has been the basis for the difference in the view expressed in Annadurai case, while differing from the decision in Muthu, Krishnamoorthy and Ramar case. The departure from the ratio laid down in Muthu, Krishnamoorthy and Ramar case, by the learned Judge in Annadurai case is premised on the court empowered to take cognizance. Therefore, at the risk of repetition, Section 21 (4-A), which is pivotal for consideration of the issue, is quoted hereunder :-
“21. ......
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (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.”
48. From the aforesaid provision, it is evident that any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable 54 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch 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. The competency of the court to take cognizance of the offence has been held, in Annadurai case, to be the basis to ascertain the court which is vested with jurisdiction to deal with confiscation.
49. In this regard, the decisions with regard to the interpretation of the term “cognizance”, more particularly with reference to Section 190, 193 and 209 Cr.P.C. have to be adverted to by the learned counsel appearing on either side.
50. Section 190 Cr.P.C. speaks about the situations in which a Magistrate of First Class or any Magistrate of Second Class specially empowered in this behalf, could take cognizance. For the present case, this Court is concerned with clause (a) and (b) of sub-section (1) of Section 193, which provides that cognizance could be taken by the Magistrate upon receiving a complaint of facts which constitute such offence and upon a police report of such facts. 55 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
51. Section 193 speaks about cognizance of offences by Court of Session, which mandates that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. The meaning of Section 193, is clear, in that the Court of Session would assume original jurisdiction only after the case is committed by the Magistrate by taking cognizance u/s 190 of the Code.
52. Section 209 of the Code deals with the Commitment of case to Court of Session in cases, which are instituted on a police report or otherwise and where it appears to the Magistrate that the offence is triable exclusively by the Court of Session, then the Magistrate shall commit the case to the Court of Session after complying with the provisions of Section 207 or Section 208 of the Code.
53. In the above backdrop of the provisions of the Code relating to cognizance, the ratio laid down by the Supreme Court with regard to what “cognizance” actually means and the power of the Court to take cognizance assumes significance.
56 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
54. Celebrated decisions with regard to cognizance have been taken note of in the decision in Pradeep Wodeyar, wherein, the Apex Court had taken note of the decisions with regard to what “cognizance” actually means and for better appreciation, the relevant portions with regard to the said aspect are quoted hereunder :-
“27. In State of MP v. Bhooraji, the appellant was convicted inter alia of an offence punishable under Section 302/149 of the IPC read with Section 3(2) of the SC and ST Act. Since the charge sheet was filed under Section 3(2) of the SC and St Act together with offences under the IPC, the appellants were tried by a Special Judge constituted under the SC and ST Act. The appellant was convicted. An appeal was filed before the High Court against the conviction. During the pendency of the appeal, this Court decided Gangula Ashok (supra). An interlocutory application was filed by the appellants seeking the trial proceedings to be quashed since the Special Court took cognizance without the case being committed to it by the Magistrate. The High Court allowed the application and directed the charge sheet and connected papers to be returned to the police who were directed to present it before the Magistrate for the purpose of committal. In appeal, this Court referred to Section 465(1) of the Code which states that no 57 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch finding shall be reversed on account of irregularity unless there is a failure of justice. The Bench compared the provision on committal to the Sessions Court by the Magistrate19, before and after the enactment of the Code of 1973. Before 1973, the committal Court could examine witnesses and records before deciding to commit the case to the Court of Sessions. However, after 1973, the only examination that the Magistrate has to undertake for the exercise of the committal power is to determine whether the case is exclusively triable by the Court of Session.
* * * * * * *
32. A contention was also raised on the ground that Section 465 would only be applicable where the order has been passed by a ?court of competent jurisdiction‘, and that the Court of Sessions is not a competent court before the case is committed to it. Rejecting this argument, it was observed that the phrase
-court of competent jurisdiction? denotes a validly constituted court conferred with the jurisdiction to try the offence and an irregularity in the procedure would not denude the competence of the court. .........
* * * * * * *
38. ............. In Dharam Pal v. State of Haryana, a Constitution Bench, while discussing whether the committing court was required under Section 209 to take cognizance of the offence before committing the case to the Court of Sessions, 58 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch held that the Magistrate could either commit the case before or after taking cognizance. In this case, the Special Court has directly taken cognizance. It now needs to be determined if this irregularity in the cognizance order vitiates the entire proceedings for the order to be quashed and set aside.” (Emphasis Supplied)
55. From the aforesaid observations made by the Apex Court in its various decisions, it transpires that the Magistrate Court, u/s 190 of the Code is a Court, which, under the MMDR Act, has to take cognizance of the offence and, thereafter, commit the case u/s 209 of the Code to the Court of Session whereupon the Court of Session would assume original jurisdiction. However, in the said decisions, the Apex Court has clearly held that cognizance by the Magistrate is merely to take judicial notice of the report placed before him for the purpose of finding out the triability of the case and if the case is triable by the Court of Session, the Magistrate has to commit the case to the Court of Session.
56. In this regard, useful reference can be had to the decision of the Constitution Bench in Dharam Pal case, where the Apex Court, while interpreting 59 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch the power of the Court of Session to take cognizance in respect of a matter committed to it by the Magistrate vis-a-vis the power of the Magistrate in taking cognizance, held as under :-
“26. Questions 4, 5 and 6 are more or less interlinked. The answer to question 4 must be in the affirmative, namely, that the Session Judge was entitled to issue summons under Section 193 Code of Criminal Procedure upon the case being committed to him by the learned Magistrate. Section 193 of the Code speaks of cognizance of offences by Court of Session and provides as follows:
193. Cognizance of offences by Courts of Session. -
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
The key words in the Section are that "no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in 60 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said Section.
27. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law.If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the 61 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch Magistrate and part cognizance being taken by the learned Session Judge.
28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh's case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.”
57. From the above, it clearly follows that the cognizance envisaged u/s 190 of the Code is for the Magistrate to take judicial notice and upon scrutiny of the papers to find out whether an offence has been committed and if so, the Court which is empowered to try the said offence. The inquiry of the Magistrate does not traverse beyond the said point but to find out the Court, which could deal with the said matter.
58. In this regard, a careful scrutiny of Section 21 (4-A) of the MMDR Act reveals that while the first part of the said provision speaks about vehicle which 62 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch is liable for confiscation by the court competent to take cognizance u/s sub- section (1) of Section 21, the second part of the provision speaks about its disposal in accordance with the directions of such Court. From the above it is clear that the court, which could pass orders for disposal of the said vehicle would be the court which would be entitled to confiscate the vehicle and the cognizance spoken about in the first part is relatable to the court, which could order for disposal of the vehicle, including an order of confiscation.
59. In the aforesaid scenario, the word “such”, which is used in sub- section 21 (4-A) assumes significance. Had it been the intention of the Parliament that the court competent to take cognizance under sub-section (1) of Section 21, viz., the Magistrate Court, to be the court, which has to take a call on confiscation, then it would have gone on to use the term “said Court”. But curiously, the Parliament has used the term “such Court”.
60. Confiscation comes into play only after a report is laid for taking cognizance and subsequent committal, which alone would form the basis for the concerned Court to form an opinion with regard to the gravity of the offence and 63 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch contemplate about exercising its power u/s 451 of the Code, if at all it is available to the said Court under the MMDR Act. In case where the case is exclusively triable by a Court of Session, the cognizance taken by the court of Magistrate could be held to be only to the limited extent of taking judicial notice of the offence and upon finding its exclusive triability, commit the case to the Court of Session, wherefrom the Court of Session would assume original jurisdiction so as to enable it to take cognizance and proceed further. In this regard the observations in Dharam Pal case assume significance, wherein the Constitution Bench has held that “If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session”.
64 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
61. In Kishun Singh case, the Apex Court, in unequivocal terms has held that on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.
62. Once the Special Court assumes original jurisdiction on the case being committed to it by the Magistrate, cognizance of the offence, in relative terminology is taken by the Court of Session, wherefrom, the Magistrate would lose his power, as it has been taken over by the Court of Session and from then on, any inquiry could be held only by the Court of Session and not by the Magistrate.
65 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
63. Applying the ratio laid down in Dharam Pal case, cognizance of an offence could be taken either by the Magistrate Court or by the Court of Session, as Section 193 of the Code mandates the Magistrate Court with regard to committing the case to the Court of Session, whereinafter the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction at which point of time, the role played by the Magistrate would be passive.
64. Further, Section 21 (4-A) uses the phrase “shall be confiscated on the order of the court competent to take cognizance”. Therefore, an order has to be passed, be it for confiscation or even for interim custody of the vehicle, if permissible. In this regard, turning back to the decision in Bhooraji case, which has been given the seal of approval by the Larger Bench of the Apex Court, which find reference in Pradeep Wodeyar case, it is obvious that cognizance of the Magistrate is merely taking judicial notice to determine whether the case is exclusively triable by the Court of Session before exercising the power of committal. Therefore, only to the limited extent of judicial notice, the 66 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch Magistrate is entrusted with the task under the Criminal Procedure Code, 1973, and once committal is made to the Court of Session finding that the offence is exclusively triable by the Court of Session, the Magistrate becomes passive and the Court of Session assumes original jurisdiction, which will include even taking further cognizance against any other person, who has not been shown as an accused. Once the Magistrate is divested of his power upon committal, no order could be passed by the Magistrate, even be it for confiscation and disposal of the vehicle, which alone could be the sole reason the Parliament has used the term “such Court” in sub-section (4-A) of Section 21.
65. Only on the basis of the aforesaid analogy, in Dharam Pal case, the Constitution Bench has clearly held that the once the case is committed by the Magistrate to the Court of Session, the Court of Session assumes original jurisdiction, which includes taking cognizance. The elastic term cognizance swaggers between the Magistrate Court and the Court of Session, until it rests with the Court of Session once for all, which could then follow the procedure contemplated under the Code for proceeding further in the matter upon assuming original jurisdiction.
67 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
66. The Division Bench in Muthu case, while holding that the seized vehicle could be produced before the Magistrate, but confiscation of the said vehicle could be only before the Special Court, though has not spelt out in explicit terms the implication of the usage of the term “such Court” in sub- section (4-A), however, this Court feels that this issue would have weighed more in the mind of the Division Bench in Muthu case when it held that though the seized vehicle could be produced before the Magistrate, however, confiscation of the same and further orders of disposal could be only by the Special Court. In fact, following the dictum laid down in Muthu case, the decisions in Krishnamoorthy and Ramar case, had come to be passed.
67. This Court had gone through Section 21 (4-A) and a careful perusal of the same reveals that what is contemplated therein in the said provision is that orders for disposal of the vehicle, of which confiscation is sought for or interim custody is sought for would be relatable to the orders that could be passed by such Court with regard to confiscation.
68 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch
68. This Court, as aforesaid, entertains a very grave doubt as to whether an order granting interim custody would fall within the realm of an order of disposal of the vehicle, which had been the basis for this Court to make the reference. Further, in Dharam Pal case, the Supreme Court has held that “The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction”. In essence, once the case is committed by a Magistrate, the Court of Session assumes original jurisdiction and all that goes with the said assumption of such jurisdiction, meaning thereby that the Magistrate is stripped of his original jurisdiction insofar as the said case is concerned, which will clothe the Special Court alone with the power to deal with petitions relating to confiscation and release of vehicle, if so available under the MMDR Act.
69. However, as pointed out above, though the Division Bench in Muthu case has held that the confiscatory power is with the Special Court, which has been followed in Krishnamoorthy and Ramar case, however, pointing to the decision in Pradeep Wodeyar case, learned single Judge in Annadurai case has 69 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch given a finding that it is only the Magistrate Court, which is empowered to deal with the release of vehicle, though there is no unequivocal finding in Pradeep Wodeyar case with regard to the application for confiscation to be maintained only before the Magistrate Court.
70. In the aforestated scenario, in view of the apparent conflict in the decisions by the Bench of equal strength, coupled with decision of the Division Bench in Muthu case and the Apex Court in Pradeep Wodeyar case, resolution of the conflict assumes judicial importance, which alone would help the Magistrate Court/Special Court to entertain application for confiscation.
71. Accordingly, while referring the matter to the Hon’ble Chief Justice for placing it before an appropriate Bench to resolve the ambiguity, the following issues are framed for consideration of the appropriate Bench on the orders of the Hon’ble Chief Justice :-
“(i) Whether the term “such Court” provided u/s 21 (4-A) would relate to the Special Court or the Magistrate Court to be the Court which would be vested with jurisdiction to deal with and pass orders for disposal of 70 https://www.mhc.tn.gov.in/judis ____________ CRL. R.C. Nos. 664/2024, etc. Batch the vehicles, which are seized u/s 21 (4) and liable for confiscation u/s 21 (4-A) of the MMDR Act.
(ii) Whether an order of disposal, as provided for u/s 21 (4-A) in respect of a vehicle, which is seized u/s 21 (4) and is liable for confiscation u/s 21 (4-A), would also include an order for grant of interim custody of a vehicle seized u/s 21 (4), so as to make Section 451 Cr.P.C.
applicable and to seek interim custody of the vehicle, when the mandate u/s 21 (4-A) is only for the purpose of confiscation of the vehicle and not otherwise.
72. Registry is directed to place the matter before the Hon’ble Chief Justice for appropriate orders for listing the matters before the appropriate Bench.
03.06.2024
Index : Yes / No
GLN
71
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
CRL. R.C. NOS. 664 OF 2024, ETC.
BATCH
Pronounced on
72
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03.06.2024
73
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