Madras High Court
Kanagaraj vs The State Of Tamil Nadu on 25 March, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.479 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.03.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.479 of 2024
Kanagaraj ... Petitioner
Vs.
The State of Tamil Nadu,
Rep. by The Inspector of Police,
Manalmedu Police Station,
Mayiladuthurai District.
(Crime No.6 of 2020). ... Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 r/w. 401 of
Criminal Procedure Code, to allow this Criminal Revision Petition and set
aside the order passed in Crl.M.P.No.623 of 2024 on the file of the District
and Sessions Judge, Mayiladuthurai, dated 01.03.2024 and grant interim
custody of the Ashok Leyland (Type of Body Tipper) bearing Registration
No.TN-28-AU-7038 in favour of the petitioner.
For Petitioner : Mr.U.Kathiravan
For Respondent : Mr.S.Raja Kumar
Additional Public Prosecutor
ORDER
The petitioner is the owner of the vehicles viz., Ashok Leyland (Type of Body Tipper) bearing Reg.No.TN-28-AU-7038, has filed a petition under Sections 451 & 457 Cr.P.C., in Crl.M.P.No.623 of 2024 before the learned Page No.1 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 District and Sessions Judge, Mayiladuthurai. The learned Magistrate vide order, dated 01.03.2024 dismissed the said petition, against which, the present Criminal Revision Case is filed.
2.The contention of the petitioner is that the petitioner is hiring his Ashok Leyland (Type of Body Tipper) bearing Reg.No.TN-28-AU-7038 and making his earnings. The petitioner is renting out the said vehicle and from the earnings, he is sustaining himself. This being so, the vehicle was seized by the respondent Police in Crime No.6 of 2020, for offence under Sections 379 & 430 IPC r/w 21(1) of Mines & Minerals (Development & Regulation) Act, 1957 on 12.01.2020. The vehicle is said to have transported river sand. 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 ready to comply with any condition that this Court may impose while granting return of vehicle. He would further submit that due to detention of vehicle, he is unable to continue his routine work and greatly impaired.
Hence, he prays for return of property.
Page No.2 of 10https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024
3.The learned Additional Public Prosecutor appearing for the respondent Police on the other hand submitted that on 12.01.2020 at about 06.00 hours when the Inspector of Police was in station duty, he received secret information about illegal transport of sand without prior permission.
The Sub Inspector of Police along with other Police personnels went to the scene of occurrence i.e., Siddamalli Kollidam river, Thailathoppu and found the vehicle., Ashok Leyland (Type of Body Tipper) bearing Reg.No.TN-28- AU-7038 was coming. When the Police intercepted to stop the vehicle, the driver of the vehicle/petitioner attempted to escape. Immediately, the respondent Police stopped the vehicle, conducted search and found the vehicle is in possession of two units of river sand without permission. On enquiry, it came to know that the tipper lorry belongs to the petitioner/accused. On the complaint, FIR in Crime No.6 of 2020, for offence under Sections 379 & 430 IPC r/w 21(1) of the Mines and Minerals (Development & Regulation) Act registered on 12.01.2020. On further enquiry, it was found that the petitioner is the owner of the tipper lorry and he hired the same to others for mining river sand. Hence, the vehicle was Page No.3 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 seized. 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 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 Page No.4 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 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 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 Page No.5 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 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 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 Page No.6 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 the petitioner. The respondent police is directed to return the vehicle viz., Ashok Leyland (Type of Body Tipper) bearing Reg.No.TN-28-AU-7038 to the petitioner on the following conditions:
(i) The petitioner shall deposit a sum of Rs.1,50,000/-
(Rupees One Lakh and Fifty Thousand only) for Ashok Leyland (Type of Body Tipper) bearing Reg.No.TN-28- AU-7038 before the jurisdictional Tahsildar as non- refundable deposit. After receipt of the above said two payment, the same will have to be deposited by the Tahsildar, to the credit of the District Mines and Minerals Foundation Trust, Mayiladuthurai 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 District and Sessions Judge, Mayiladuthurai. 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 she will not use the vehicles 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 Page No.7 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 respondent/trial Court is at liberty to confiscate the vehicles;
(iv) The petitioner shall not alienate the vehicles in question till the disposal of the proceedings before the authority concerned;
(v) The petitioner shall take photograph of the vehicles and submit the same along with Compact Disc duly 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 01.03.2024 passed by the learned District and Sessions Judge, Mayiladuthurai in Crl.M.P.No.623 of 2024 is set aside.
25.03.2024 Index : Yes/No Speaking Order/Non Speaking Order Neutral Citation: Yes/No vv2 Page No.8 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 To
1.The Inspector of Police, Manalmedu Police Station, Mayiladuthurai District.
2.The District and Sessions Judge, Mayiladuthurai.
3.The Public Prosecutor, High Court, Madras.
Page No.9 of 10https://www.mhc.tn.gov.in/judis Crl.R.C.No.479 of 2024 M.NIRMAL KUMAR, J.
vv2 Crl.R.C.No.479 of 2024 25.03.2024 Page No.10 of 10 https://www.mhc.tn.gov.in/judis