SHAJAL MON Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) PETITIONER is the owner of the vehicle bearing No. KA -09 -B -4243, in which 'river sand' was stated as transported from the State of Maharashtra based on Ext.P3 invoice issued by the dealer by name 'M/s. Aparna Enterprises'. Such material was transported on the strength of Ext.P4 as well, which is a tax receipt as to remittance of tax to the requisite extent before the Tax Check Post at Manjeswar, with specific reference to the vehicle belonging to the petitioner. It was in the course of further transit, that intervention was made before the Police, who seized the vehicle leading to Ext.P5 FIR of the Manjeswar Police Station. The learned counsel for the petitioner submits that, the proceedings are per se wrong and illegal in all respects, which is sought to be substantiated with reference to Ext.P6 entry/exit pass issued by the Tax Check Post Authorities in respect of the vehicle bearing No. KA -09 -B -4243. Because of the continued detention, the petitioner is constrained to approach this Court by filing the writ petition, for immediate intervention.

(2.) THE learned Government Pleader submits on instructions that, the version of the petitioner is not at all correct, as the vehicle has not passed through the RTO Check Post, which is located in the boundary of the two States, ie. State of Kerala and the State of Karnataka. A Certificate has also issued in this regard by the authorities of the Motor Vehicle Department, Thalappadi Check Post. The learned Government Pleader further submits that, the Commercial Tax Check Post is situated at a further distance of 6 Kms. into the State and production of the document issued from the said Check Post cannot lead to an inference as to the transportation of the material from the State of Karnataka, in so far as there is no entry in the RTO Check Post. The matter has been investigated and charge sheet has been filed before the concerned Magistrate's Court under Section 173 of the Code of Criminal Procedure. It is also stated that, steps are being taken, to cause the matter to be reported to the second respondent, who is the confiscating authority in terms of the Sand Act. By virtue of the amendment of the statute, particularly Section 23A and the proviso to Sub -Section (2) thereunder, power is vested with the Magistrate having jurisdiction over the area, to deal with the interim custody of the vehicle. Sub -Section (1) of Section 23A says that, the authority effected the seizure has been reported the same to both the Magistrates, i.e. Executive Magistrate as well as the Judicial Magistrate. The confiscation proceeding has to be pursued and finalised by the Executive Magistrate/competent authority, who is none other than the second respondent, whereas the prosecution proceedings have to be finalised by the Judicial Magistrate. The circumstances under which interim custody could be granted has been explained by a Full Bench of this Court as per the decision reported in Shan C.T. v. State of Kerala : [2010 (3) KHC 333], operative portion of which as contained in paragraphs 12 and 13 are in the following terms:

(3.) THE position has not undergone any substantial change even after the amendment of Section 23A, which is only to the effect that, the power to grant interim custody has been vested upon the Judicial Magistrate as well.