RAMKUMAR V.S. Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner's vehicle No. TN/41/AC -5950 is involved in a crime registered under the Kerala Protection of River Banks and Regulation of Removal of Sand Act (the Sand Act). The Sub Inspector of Police, Thaliparamba seized the said vehicle when river sand was being transported in the said vehicle illegally. On seizure the vehicle was produced by the Sub Inspector before the Sub Divisional Magistrate, Thalassery. It is not known whether the fact of seizure was reported to the Judicial First Class Magistrate Court having jurisdiction over that area. Any way the petitioner herein made an application before the Sub Divisional Magistrate for interim custody of the vehicle. The Sub Divisional Magistrate allowed the application on conditions. One condition is that the petitioner shall deposit 30% of the value of the vehicle assessed by the committee headed by the District Collector, and the other condition is that petitioner shall furnish bank guarantee for the other 70% of the value. The said order passed by the Sub Divisional Magistrate, Thalassery on 26.12.2014, in proceedings G2 -15231/2013 is under challenge herein. The petitioner challenges the said order on two grounds. One is that the Sub Divisional Magistrate has in fact no power to order interim custody, and the other is that if at all such a power is there, the condition imposed by the Sub Divisional Magistrate is really unreasonable and onerous.

(2.) THE learned counsel for the petitioner raised a serious question that Sub Divisional Magistrate has no power under the law to order interim custody of the vehicle seized under the Sand Act, and such power can be exercised only by the Judicial First Class Magistrate having jurisdiction over the area, under Section 451 Cr.P.C. The matter is covered by Section 23A of the Sand Act. This provision will indicate that the power of the Sub Divisional Magistrate as regards the property is seized under the Sand Act is only to order confiscation under Sub -section 4. Sub -section 1 of Section 23A provides that where any property is seized under Section 23, the officer seizing such property shall, within 48 hours of such seizure, make a report of such seizure before the Judicial Magistrate having jurisdiction and also before the Sub Divisional Magistrate having jurisdiction over the area, whether prosecution proceedings have been initiated or not. The last part of Sub -section 1 provides that if seizure is made by any officer other than a police officer the fact of seizure shall be reported to the Station House Officer of the Police Station having jurisdiction over the area, and on getting such report the police officer shall take steps under Section 102 of the Code of Criminal Procedure. Thus the provision is very clear that when the fact of seizure is reported to the Police Station under Section 23A(1) of the Sand Act, or even when such seizure is made by the police officer having powers under the law, the police officer will have to take necessary steps under Section 102 Cr.P.C. This means that the fact of seizure will have to be reported to the Judicial Magistrate having jurisdiction, and if possible the property should be produced before the Judicial Magistrate. The law no where provides that the property shall be produced before the Sub Divisional Magistrate.

(3.) SUB -section 3 of Section 23A of the Sand Act provides that on getting a report of seizure under Sub -section 1 the Sub Divisional Magistrate shall give a notice in writing to the concerned person, requiring him to show cause why the property should not be confiscated. Sub -section 4 provides that where the owner of the property seized, or the person having control of the same, does not furnish explanation, or does not show cause as provided under Sub -section 3, or where the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the property seized under Section 23 is liable to be confiscated, the Sub Divisional Magistrate shall, by an order, confiscate the same, and the fact shall be informed in writing to the owner. The proviso to Sub -section 4 provides that the owner of the property will have an option to remit an amount equal to the value of the confiscated article, in lieu of confiscation, and once that value is deposited by him, the property can be released to the owner. This is the only circumstance where the Sub Divisional Magistrate can release property under the Sand Act.