Madras High Court
S.Sakthivel vs State Rep By on 11 March, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.257 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.257 of 2024
S.Sakthivel ... Petitioner
Vs.
State Rep by
The Inspector of Police,
Valathy Police Station,
Villupuram District.
[Crime No.387 of 2023] ... Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 and 401 of
Criminal Procedure Code, to call for the entire records relating to the order
dated 29.01.2024 passed in Crl.M.P.No.464 of 2024 by the learned Judicial
Magistrate, Gingee.
For Petitioner : Mr.K.M.Mohamedziauddin
For Respondent : Mr.S.Raja Kumar
Additional Public Prosecutor
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Crl.R.C.No.257 of 2024
ORDER
The petitioner, owner of TATA Motors Tipper bearing registration No.TN-66-J-3713 filed a petition seeking return of property before the learned Judicial Magistrate, Gingee in Crl.M.P.No.464 of 2024. The Trial Court by order dated 29.01.2024 dismissed the same. Against which, the present revision petition is filed.
2.The contention of the petitioner is that the petitioner is hiring his TATA Motors Tipper bearing registration No.TN-66-J-3713 and making his earnings. The petitioner is renting out his Tipper and from the earnings, he is sustaining himself. This being so, the vehicle was seized in connection with Crime No.387 of 2023 on 15.09.2023 for the offence under Sections 430 and 379 IPC and Section 21(1) of Mines and Minerals (Development & Regulation) Act, 1957. Admittedly, the petitioner was not seen near the vehicle and he had not given any instruction to use the vehicle to mine or transport any minerals. He further submitted that the vehicle is kept in open space exposing to vagaries of weather, further detention would make the vehicle unusable, rusted and it would become a scrap. The petitioner is Page No.2 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.257 of 2024 ready to comply with any condition that this Court may impose while granting return of vehicle. Hence, he prays for return of property.
3.The Additional Public Prosecutor appearing for the respondent Police on the other hand submitted that on 15.09.2023, when the defacto complainant viz., the Assistant Geologist, Geology and Mining, Villupuram along with Special Revenue Inspector [Mines] conducting road check, at that time, a Tipper Lorry bearing registration No.TN-66-J-3713 was carrying sand without permit. On enquiry, it was found that the vehicle is owned by the petitioner and he is using the vehicle for collecting the sand illegally, stocking the same and selling the same at higher rate. Hence, the vehicle was seized and produced before the Valathy Police Station. He further submitted that the if the vehicle is handed over to the petitioner, he would indulge in similar offences. Further, the learned Additional Public Prosecutor made his objections based on the orders passed by this Court in Rev.Appl.Writ(MD).Nos.80 to 82 of 2019, W.P(MD).No.19936 of 2017, W.P(MD).Nos.7595 and 21485 of 2018, W.P(MD).No.14341 of 2022 and Crl.RC.(MD).No.470 of 2023. Hence, he prayed for dismissal of the Page No.3 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.257 of 2024 revision petition.
4.This Court in Crl.O.P.No.646 of 2024 batch dated 29.01.2024 [Annadurai vs. The Inspector of Police, Kurisilapet Police Station, Thirupathur District], considered the objections and referring to the orders of the Single Judge, Division Bench and Full Bench of this Court and the decisions of the Apex Court, yielding to the command of the Hon'ble Supreme Court under Article 141 of the Constitution of India, has held as follows:
“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 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;Page No.4 of 10
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(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 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 331and 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;
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(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 670 and paragraph 38 of the decision inPradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62, as discussed above, do not lay down the correct law.”
5.In view of the above, this Court finds that the vehicle is kept in open space exposing to vagaries of weather get rusted and the value of the vehicle get diminished. Hence, this Court is inclined to return the vehicle to the petitioner. The respondent police is directed to return the vehicle, viz., TATA Motors Tipper Lorry bearing registration No.TN-66-J-3713 to the petitioner on the following conditions:
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(i) The petitioner shall deposit a sum of Rs.1,50,000/-
(Rupees One Lakh Fifty Thousand only) before the jurisdictional Tahsildar as non-refundable deposit. After receipt of the above said amount, the same will have to be deposited by the Tahsildar, to the credit of the District Mines and Minerals Foundation Trust, Villupuram as non- refundable deposit;
(ii) The petitioner shall execute a personal bond for a sum of Rs.10,000/- [Rupees Ten Thousand only] with two sureties each, for a like sum to the satisfaction of the learned Judicial Magistrate, Gingee. The petitioner and the sureties shall affix their photographs and give the copies of their Aadhaar Card;
(iii) The petitioner shall give an undertaking before the respondent/ authority concerned stating that he will not use the vehicle in question for any illegal activities in future and shall produce the same as and when required by the respondent and also the trial Court, failing which the respondent/trial Court is at liberty to confiscate the vehicle;
(iv) The petitioner shall not alienate the vehicle in question till the disposal of the proceedings before the authority concerned;
(v) The petitioner shall take photograph of the vehicle and submit the same along with Compact Disc duly Page No.7 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.257 of 2024 certified under Section 65-B of the Indian Evidence Act, 1872;
(vi) The petitioner is also directed to participate in the enquiry to be conducted by the respondent.
6.Accordingly, the Criminal Revision Petition stands allowed and the impugned order dated 29.01.2024 passed by the learned Judicial Magistrate, Gingee in Crl.M.P.No.464 of 2024 is set aside.
11.03.2024 Index : Yes/No Speaking Order/Non Speaking Order Neutral Citation: Yes/No cse Page No.8 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.257 of 2024 To
1.The Inspector of Police, Valathy Police Station, Villupuram District.
2.The Judicial Magistrate, Gingee.
3.The Public Prosecutor, High Court, Madras.
Page No.9 of 10https://www.mhc.tn.gov.in/judis Crl.R.C.No.257 of 2024 M.NIRMAL KUMAR, J.
cse Crl.R.C.No.257 of 2024 11.03.2024 Page No.10 of 10 https://www.mhc.tn.gov.in/judis