Kerala High Court
Rahim vs State Of Kerala on 17 July, 2002
ORDER G. Sasidharan, J.
1. Lorry bearing Reg. No. K.L.E. 8905 which belongs to the petitioner was seized by the police on 27.6.2002 and it is now being kept in Karunagappally Police Station. No report regarding the seizure of the above vehicle was sent to the Magistrate having jurisdiction over the area from where the vehicle was seized by the police. Petitioner approached the Magistrate by filing a petition under Sections 451 and 457 Cr.P.C. requesting to give interim custody of the vehicle to him. The learned Magistrate dismissed the application on observing that no crime is pending in the court of the Magistrate in respect of seizure of the vehicle and that the matter is pending before the Revenue Divisional Officer, Kollam. In the order the learned Magistrate says that what the Assistant Public Prosecutor submitted before court was that the Sub Inspector of Police, Karunagappally who seized the vehicle on 27.6.2002 gave a report to the Deputy Superintendent of Police, Kollam that sand was being loaded and transported in the above vehicle without any valid permit. The Deputy Superintendent of Police, Karunagappally took the vehicle in custody and produced the same before the Revenue Divisional Officer who is the executive Magistrate. The lorry as stated earlier is kept in the premises of Karunagappally Police Station.
2. According to the learned counsel for the petitioner, immediately on seizing the vehicle, the police officer who seized the vehicle would have sent a report to the Judicial Magistrate of the First Class, Karunagappally informing the Magistrate about the seizure of the vehicle. The submission is that Section 102 Cr.P.C. gives powers to a police officer to seize a vehicle in connection with the commission of a crime and when seizure is made in exercise of the powers under that section of the Cr.P.C. necessarily the officer who makes the seizure has to send a report to the Magistrate, Section 102(1) Cr.P.C. says that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Sub-clause 2 of Section 102 says that the police officer who seizes the property if he is subordinate to the officer in charge of a police station, shall forthwith report the seizure to the officer in charge of the police station. Sub-clause 3 of Section 102 says that every police officer acting under Sub-section 1 shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same.
3. The dismissal of the application by the learned Magistrate for the reason that report regarding the seizure of the vehicle was not given to court and no crime is seen to have been registered is challenged by saying that the conduct of the officer who seized the vehicle in not reporting the seizure to the Magistrate is in violation of what is said in Section 102 Cr.P.C. As a result of not making any report regarding the seizure of the vehicle, the Magistrate, Karunagappally had to say in the order that there was no report regarding seizure and hence he could not invoke the powers under Sections 451 or 457 Cr.P.C. for giving interim custody of the vehicle to the petitioner. If, as a matter of fact, the police officer who seized the vehicle had reported to the court that the vehicle had been seized by him, the Magistrate would have proceeded to take a decision on the question of giving interim custody of the vehicle to the petitioner on merits.
4. In P.V. Joseph v. State (1977 KLT 869) this Court had the occasion to consider the scope of Section 457 Cr.P.C. In that decision, the meaning of the words "such property is not produced before a criminal court during an enquiry or trial" occurring in Section 457 of the Code was considered. The Court said that the above words occurring in Section 457 have relation to Sections 451 and 452 of the Code which empower criminal courts to pass orders both during and at the conclusion of enquiry or trial regarding custody and disposal of property produced before court. The learned Judge proceeded on to say that those words had been used only to exclude from the operation of Section 457 cases covered by Sections 451 and 452 and that there is no bar in Section 457 from exercising the power under it at the stage of investigation. This Court also held that giving the words of Section 457 their ordinary meaning only two conditions have to be fulfilled for acting under the section and they are that seizure of property is reported to the Magistrate and that the property is not produced before a criminal court in an enquiry or trial. On a comparison of what is said in Section 457 with the provisions contained in the old Code this Court held in the above decision that Section 523 of the old Code restricted its operation to seizure under Sections 51 and 550 whereas Section 457 applies to all kinds of seizure under the Code.
5. In Thimothy v. State of Kerala (1987 (1) KLT 82) another learned Judge of this Court held that two conditions are necessary to attract jurisdiction under Section 457 of the Code and that those conditions are that seizure should be reported to the Magistrate whose jurisdiction is invoked and the property should not have been produced before a court for purposes of inquiry or trial. In the above decision it was said that Section 457 deals with the situation where an enquiry or trial is neither pending nor concluded but it deals with cases in the pre-trial or pre-inquiry stage. In the light of what is said in the above decisions, it could be seen that if the seizure of the vehicle was reported to the court, the conditions for invoking the powers under Section 457 Cr.P.C. would have been there for considering the question whether interim custody of the vehicle could be given to the petitioner.
6. The other question which arises for consideration is whether in the light of the provisions in the Mines and Minerals (Development and Regulation) Act and Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the rules issued by the Government of Kerala under the above two Acts can the police officer who seizes the vehicle avoid reporting of the seizure to the Magistrate. Section 4(1) of the Cr.P.C. says that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. Sub-clause (2) of Section 4 says that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The definition of "offence" occurring in Section 2(n) means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle- trespass Act. In the light of what is said in the definition of "offence" and in Section 4 it could be seen that the investigation, inquiry or trial regarding commission of the offence under the above Acts have to be conducted as per the provisions of the Cr.P.C. in so far as no specific provisions regarding investigation, inquiry or trial are made in those Acts or Rules made thereunder.
7. A Division Bench of this Court in the judgment in W.A. 1330 of 2002 said that whether the action is taken under the Kerala Minor Minerals Concession Rules read with the parent Act or under the Kerala Protection of River Banks and Regulation of Removal of Sand Act read with the Rules made thereunder the power of imposition of fine rests only with the court and all that the revenue authorities have been empowered to do is to compound the offences. Such an observation was made by the Division Bench of this Court on finding that the reading of relevant provisions of the Act and the Rules suggests that neither the revenue nor the police authorities have the power to impose any fine on a person who contravenes the provisions of the Act and the Rules. The Division Bench said that there is no provision in the Act or Rules empowering anyone other than a court of law to take cognizance of an offence punishable under the Act and the Rules.
8. Learned Public Prosecutor submits that on seeing the vehicle of the petitioner which was being used for transporting sand, no crime has been registered. The submission made by the Public Prosecutor is that the seizure of the vehicle was made under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. Section 23 of the Act says that any person who transports sand in contravention of the provisions of the Act is liable to be punished and the vehicle which is being used for transporting sand is liable to be confiscated by any police officer or officer of the revenue department. The procedure to be followed for confiscation of the vehicle is mentioned in Rule 27 of the Rules made under the above Act. What is said in the above Rule is that any vehicle which is being used for transporting sand in violation of the provisions of the Act and Rules has to be seized. Sub-clause 3 of the above Rules says that within seven days of seizing the vehicle, the District Collector has to take a decision regarding the value of the vehicle and fine equal to the value of the vehicle has to be deposited by the owner of the vehicle in river management fund and in that event, the vehicle will be given back to the owner of the vehicle. Rule 28 deals with the scale of the vehicle seized. That rule says that a vehicle which is seized as per the provisions of Rule 27 can be sold by the District Collector after following the procedure detailed in that rule. The submission made by the learned Public Prosecutor is that the above rules give power to the District Collector to sell the vehicle and what is done in this case is after seizing the vehicle it is produced before the revenue authorities to proceed under the provisions in those Rules.
9. A reading of the above rules would go to show that the seizure of the vehicle as well as the subsequent sale of the same by the District Collector can be done only in respect of vehicles in which sand is transported in violation of the provisions of the Act and the Rules. That shows that if there is transporting of sand in violation of the provisions of the Act and Rules, the sale of the vehicle as said in Rule 28 will be justifiable. Coming to Section 20 of the Act it is seen that any person who violates the provisions of the Act and Rules is liable for being convicted under that section. That section also provides for punishment for violation of the provisions of the Act and Rules. So when the provisions of the Act and Rules are read together, the consequences those will follow on transporting sand in violation of the provisions of the Act are prosecution for commission of the offence under Section 20 of the Act and also sale of the vehicle as provided in Rule 28 of the Rules made under the Act. That shows that a police officer who seizes a vehicle for the reason that sand is being transported in violation of the provisions of the Act and Rules has to be satisfied that the offence punishable under Section 20 is committed by transporting sand in the vehicle. Section 24 of the Act says that the offences under the Act are cognizable. When a police officer is satisfied that an offence punishable under Section 20 is committed, he can seize the vehicle and then it becomes necessary under Section 102 Cr.P.C. that a report regarding seizure of the vehicle has to be given to court. No provision in the Act or Rules which would say that il is not necessary that a police officer has to report about the seizure to a court notwithstanding what is said in Section 102 Cr.P.C. is pointed out to this Court. Then the officer who seizes the vehicle for violation of the provisions of the Act or the Rules has to send a report to the Court regarding seizure of vehicle as envisaged in Section 102 Cr.P.C. This is a case in which a report would have been sent by the police to court regarding the seizure of the vehicle for violation of the provisions of the Act and Rules. Merely for the reason that no such report has been sent to court, valuable right of the owner of the vehicle to move the court for getting interim custody of the vehicle cannot be denied. This Court would have given a direction to the Judicial Magistrate of the First Class, Karunagappally for giving interim custody of the vehicle if there was a report sent by the police officer who seized the vehicle to the Magistrate saying that the vehicle was seized. In the above circumstances of this case, direction has to be given to the Revenue Divisional Officer because the R.D.O. is now having possession of the vehicle.
This petition is allowed directing that interim custody of the vehicle now in the custody of the R.D.O., Kollam will be given to the petitioner on furnishing security of immovable property to the value of the vehicle fixed by the R.D.O. In the event of the petitioner getting interim custody of the vehicle, he has to produce the vehicle as and when required by the R.D.O.