Kerala High Court
Ansu vs State Of Kerala on 25 June, 2012
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937
WP(C).No. 19592 of 2012 (W)
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PETITIONER(S):
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ANSU, AGED 39 YEARS,
S/O HAMEED RAWTHER, KUNNUMPURATHU HOUSE, VAYIPUR,
KOTTANGAL, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.M.T.SURESH KUMAR
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001
2. THE DISTRICT COLLECTOR,
COLLECTORATE, PATHANAMTHITTA 689645
3. SUB INSPECTOR OF POLICE,
KEEZHVAIPOOR POLICE STATION, THIRUVALLA,
PATHANAMTHITTA 689601
BY GOVERNMENT PLEADER SRI.V.K.RAFEEK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-01-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 19592 of 2012 (W)
APPENDIX
PETITIONER(S) EXHIBITS :
EXT. P1 TRUE COPY OF THE CONFISCATION ORDER DATED 25-06-2012
Ext.P2 TRUE COPY OF THE NOTICE DATED 17-04-2012 ISSUED ON
BEHALF OF THE 2ND RESPONDENT
Ext.P3 TRUE COPY OF THE FIR IN CRIME NO 454 OF 2011 OF
KEEZHUVAIPOOR POLICE STATION DATED 04-10-2011
Ext.P4 TRUE COPY OF THE FINAL REPORT DATED 05-10-2011 SUBMITTED
BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, THIRUVALLA
IN CRIME NO 454 OF 2011
Ext.P5 TRUE COPY OF THE ORDER DATED 09-03-2012 IN CRL.M.C NO 4335 /11
RESPONDENTS' EXHIBITS :NIL
OKB
True copy
P.A. to Judge
K.HARILAL, J.
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W.P. (C) No.19592 of 2012
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Dated this the 11th day of January, 2016
JUDGMENT
~ ~ ~ ~ ~ This writ petition is filed challenging Ext.P1 order passed by the 2nd respondent under Secs.23 and 23A of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'the Act') and Rule 27 of the Rules made thereunder. The petitioner is the registered owner of the goods carriage vehicle TATA 407 bearing registration No.KL-05-8202 and a motorbike beraing registration No.KL-28-6774. The said vehicles were proceeded against under Secs.21 and 23 of the Act and a fine of Rs.40,000/- was imposed on the motorbike and Rs.50,000/- and Rs.1,00,000/- were imposed as the value of the tempo van and fine respectively, by Ext.P1.
2. The learned counsel for the petitioner raised two points. Firstly, it is contended that earlier the petitioner filed Crl.M.C.No.4335/12, challenging the WP(C).19592/12 :2:
proceedings initiated against the petitioner under the Act and by Ext.P5 order, this Court quashed the entire proceedings initiated against the petitioner. Thereafter, the 2nd respondent again proceeded against the vehicle, by initiating confiscation proceedings under Sec.23A of the Act. According to the learned counsel for the petitioner, in view of the quashing of proceedings under Ext.P5 order of this Court, further proceedings to confiscate the vehicles are illegal and unsustainable.
3. Secondly, the 3rd respondent has not produced the vehicles before the concerned Magistrate's Court under Sec.102 of the Cr.P.C. and the non-production of the vehicles before the concerned Magistrate is fatal and thereby, the entire proceedings against the vehicles are unsustainable.
4. Per contra, the learned Government Pleader submits that there is no statutory compulsion to produce the vehicle seized under Sec.23 of the Act, before the concerned Magistrate, under Sec.102 of the WP(C).19592/12 :3:
Cr.P.C. In the absence of such statutory compulsion, the production of the vehicle before the Sub Divisional Magistrate enabling him to proceed with confiscation, is proper and sustainable under law. Further, it is contended that in Ext.P5 order itself, this Court specifically stated that that order will not stand in the way of further proceedings on a proper complaint under Sec.25 of the Act. After Ext.P5 order, the officer who seized the vehicles has filed a proper complaint before the concerned Magistrate and the proceedings are under his consideration. However, Ext.P5 order will not affect the confiscation proceedings against the vehicles under Section 23A so long as the crime registered against the petitioner stands as such without any interference by Ext.P5 order of this Court.
5. Coming to the first point, going by Ext.P5 order, it is seen that this Court set aside the prosecution proceedings initiated against the petitioner, on the reason that cognizance was taken by the Magistrate without receiving a complaint, as WP(C).19592/12 :4:
provided under Section 25 of the Act. In Ext.P5 itself, this Court has specifically held that the penal proceedings against the petitioner would stand quashed without prejudice to the authorised officer to file a proper complaint under Section 25 of the Act. Therefore, as rightly submitted by the learned Government Pleader, I find that Ext.P5 order, quashing penal proceedings against the petitioner, will not stand in the way of confiscation proceedings and Ext.P1 passed thereunder, invoking jurisdiction and power under Section 23A of the Act.
6. Coming to the second point, the properties seized were not produced before the concerned Magistrate. As rightly submitted by the learned counsel for the petitioner, I do not find any provision in the Act compelling the officer who seized the vehicles to produce the vehicles before the concerned Magistrate's Court. On the other hand, Section 23A specifically says that on seizure of the vehicle, the officer seizing such property shall file a report of WP(C).19592/12 :5:
such seizure before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the properties are seized. Therefore, separate proceedings are contemplated under Section 23A and it is incumbent upon the officer seizing such property to send a report along with the property or vehicles, as the case may be, to the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and in my opinion, that report is intended for confiscation proceedings only and the report to be filed to the concerned Magistrate's Court is intended for initiating prosecution against the person, who has committed the offence. In the absence of any provision under the statute compelling the officer seizing such property, to produce the vehicle before the concerned Magistrate's Court under Section 23 of the Act, I am unable to accept the arguments advanced by the learned counsel for the petitioner that the non-production of the vehicle before the concerned WP(C).19592/12 :6:
Magistrate is fatal. In short, power of confiscation of the vehicle used for commission of the offence is exclusively vested with Sub Divisional Magistrate and penal prosecution against the person is vested with the concerned Magistrate's Court.
7. That apart, so long as the power of confiscation is vested with the Sub Divisional Magistrate, no purpose will be served by producing the vehicles before the concerned Magistrate's Court. Coming to the instant case, going by Ext.P1 order, I find that the 2nd respondent has proceeded in accordance with law against the vehicles and there is no illegality or impropriety in any of the proceedings whereby Ext.P1 order is passed. This writ petition is devoid of merits and dismissed accordingly.
Sd/-
K. HARILAL, JUDGE Nan/okb.