At, High Court of Karnataka Circuit Bench OF Kalaburagi
By, THE HONOURABLE MR. JUSTICE B.A. PATIL
For the Petitioner: Mahadev S. Patil, Advocate. For the Respondent: Maqbool Ahmed, HCGP.
(Prayer: This writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C, praying to issue writ of certiorari or any other writ by setting aside the order passed with respect to Tractor Chassis No.1PY5036DVGA000579 and Engine No.PY3029D404360 order dated 7.3.2017 in Crl.R.P.No.45/2017 by the Prl. Sessions Judge at Vijayapur vide Annexure-F and also order dated 16.2.2017 in Crime No.9/2017 passed by the learned JMFC, Indi vide Annexure-E; etc.)
1. The present petition has been filed by the petitioner-owner of Tractor bearing Reg.No.KA-28-NT-019388/2016-17 bearing Chassis No.1PY5036DVGA000579 and Engine No.PY3029D404360, praying this Court to issue writ of certiorari or any other writ by setting aside the order passed by the Prl. District and Sessions Judge, Vijayapura in Crl.Rev.Pet.No.45/2017 dated 7.3.2017 consequently to set aside the order dated 16.2.2017 passed by the learned JMFC, Indi in its Crime No.09/2017 for having rejecting the application filed by the petitioner under Section 457 of Cr.P.C.
2. The brief facts are that; on 14.01.2017 on credible information respondent-police went to the spot and intercepted the Tractor, which was temporarily registered with No.28-NTO19388/2016-17 and Engine No.PY3029D 404360 Trailer Chassis NO.0005-2016. The complainant noticed petitioners were transporting the sand in the said tractor without there being any permit or licence. The same
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has been seized and a case has been registered in Crime No.09/2017 by Indi Police. Petitioner filed an application under Section 457 of Cr.P.C and after considering the application and objection filed by the learned Asst. Public Prosecutor, by order dated 16.2.2017, the learned J.M.F.C rejected the said application. Being aggrieved by the said order petitioner preferred Crl. Rev. P. No.45/2017 before the Prl. Sessions Judge/ Special Judge, Viajaypur and after hearing the matter, learned Sessions Judge by order dated 7.3.2017 dismissed the petition. Being aggrieved by the said order, the petitioner is before this Court.3. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State.4. Main grounds urged by the learned counsel for the petitioner are that, impugned orders of the trial Courts are not sustainable in law. He further contended that temporary registration expired, as such petitioner in order to get all the valid documents pertaining to the Tractor, approached the concerned RTO for re-registration but, the said authority has not proceeded with the matter for issuing the permanent registration certificate, only because the matter is pending before the Court and that the vehicle is seized by the police. It is further contended that, if the said tractor and trailer are kept idle in an open place, it is going to be rusted, it will become useless and without releasing the vehicle, it cannot be re-registered for permanent registration. He would further contend that he has taken the said tractor by taking the financial assistance from finance-Corporation and he has to pay the installments to the said financier. If the tractor is kept idle, he is going to sustain huge loss. He would further contend that he is ready to abide by the terms and conditions to be imposed by this Court and ready to offer sureties. On these grounds, he prayed for allowing of the petition.5. Per contra, the learned High Court Government Pleader would contend that said vehicle has been used for the purpose of transporting the sand illegally, without there being any permit or licence and they have also not paid any royalty to the Government for lifting the sand. He would further contend that as per the provisions of Sec. 21(4) of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter called as ‘M.M.D.R Act’), it indicates that if the said vehicle has been used for transporting the sand illegally and is seized, it is liable to be confiscated to the Government. He further contended that, when once the vehicle has been seized, the said vehicle becomes the property of the Government and when it becomes the property of Government, then under such circumstance, the vehicle cannot be released by the Court at any stretch of imagination. He would further contend that petitioner has not got registered the said vehicle permanently and only with an intention that, it will help illegal transportation of the sand and with a malafide intention registration has not been made. It is further contended that if the said vehicle has been released in favour of the petitioner, he is likely to transfer, change the nature, colour and identity of the vehicle. On these grounds, he prayed for dismissal of the petition.6. I have gone through the submissions made by the learned counsel for the petitioner and the learned High Court Government Pleader. I have also perused the records.7. Before going to discuss the contention, it is just and necessary to go through Section 21(4A) of MMDR Act. As could be seen from Sec. 21 (4A) of MMDR Act, it enables the authorities in case of contravention of any of the provisions of MMDR Act, to confiscate the mineral, tool, equipment, vehicle or any other thing seized under the said Act. For the purpose of brevity, Section 21 (4A) reads as under;“Sec.21 (4A): Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the Court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such Court”8. After going through the above provisions when the said vehicle is liable to be confiscated, then under such circumstances, the provisions of the Act are required to be strictly complied with and followed for the purpose of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for release of vehicle, releasing authority or Court has to specify the reasons to justify such release. There should not be a casual or liberal approach. The liberal approach would perpetuate the commission of more offences under the Act. If the mineral and natural resources are not protected, it surely affect the mother earth and environment. The courts cannot shut their eyes and ignore their obligations indicated in the MMDR Act enacted for the purpose of protecting minerals and environment, which is the wealth of the nation. No doubt by going through Section 21 (4A) of the MMDR Act, if any vehicle, tool, mineral or equipment shall be liable to be confiscated by Court, it shall not be normally released to a party till culmination of all the proceedings in respect of such offence, including confiscation proceedings, if any. Nonetheless, if a Court inclines to release the vehicle during pendency of the case, adequate security should be taken by imposing condition. No party shall feel that release of vehicle would be easier, when such vehicle is allegedly involved in commission of offences under the MMDR Act. If there is liberal or causal approach in such release, it would tempt the offender to repeat commission of such offences under the MMDR Act.9. Keeping in view the above aspect on perusal of the MMDR Act, it does not say any thing about release of the vehicle which has been seized under the MMDR Act for interim custody. At this juncture, I feel it is just and proper to refer to Section 30C of the MMDR Act, which reads as under;“30C. Special Courts to have powers of Court of Sessions.-Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to the proceedings before the Special Court and for the purpose of provisions of this Act, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Sessions and the person conducting a prosecution before the Special Court shall be deemed to be a public prosecutor.10. By going through the provisions of Section 21 and 30C, nowhere MMDR Act deals with the aspect in the event, if a vehicle has been seized, whether the said vehicle can be temporarily released on custody to the owner of the said vehicle or not. When there is no specific provision under the MMDR Act, then under such circumstance, Section 30C of MMDR Act says that Code of Criminal Procedure shall apply to the proceedings. In that context, Section 457 of Cr.P.C. is applicable. In the light of keeping into consideration the scope thereunder, the application of the petitioner ought to have been considered by the trial Court.11. It is contended by the learned counsel for the petitioner that if the said vehicle is seized and kept in the open space and left unused, then under such circumstance it is going to loose its value, it may get rusted and it may become valueless.12. No doubt, Section 21 (4A) of the MMDR Act prescribes that in the event of the proof of the offence, the said vehicle if it is intended to be confiscated, it can be confiscated. When once the property is seized, no doubt it becomes the property of the Government. But, the object and scope of Section 457 of Cr.P.C. is that in the event of confiscation or release of the vehicle, the value of the vehicle should not be reduced and it should not be kept laying in the Police Station for long time. In that light, the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujrat reported in AIR SC 2003 Page 638 has been observed that it is of no use to keep the seized vehicle at the police station for a long time. It is for the Magistrate to pass appropriate orders immediately by taking proper bond and guarantee, as well as security for return of the said vehicle, if required at any point of time that can be ordered to be produced and this can be done pending application for return of said vehicle under Section 458 of Cr.P.C.. The scope of Section 457 of Cr.P.C. is to see that the vehicle seized in a crime should be placed in proper custody and while giving such custody, the Magistrate has to consider the fact that from whose possession the said property has been seized and whether the said person is entitled to its possession. In that event, subject to conditions it can be released.13. By taking into consideration the above said proposition of law and consciously by application of mind to the present facts of the case on hand, it indicates that if a person establishes that he is the owner of the vehicle, then under such circumstances, the vehicle has to be released in favour of said person, of course by imposing some conditions. On perusal of the order of both the courts below, they lost the sight of the spirit and scope of Section 457 of Cr.P.C. and only because it has not been registered permanently, rejected the applications.14. As could be seen from Annexure-A, the Form KMV 19 issued by the R.T.O, Vijayapur it indicates that the petitioner is the owner and the above said tractor stands in his name. But, the said tractor has been temporarily registered and subsequently it has not been permanently registered. Merely because it has not been permanently registered, it cannot be kept in custody. By keeping the vehicle in custody with the police, it is going to loose its value and it may get rusted. Keeping in view the ratio laid down in the decision quoted supra, letter and spirit of the MMDR Act, I feel that, if by imposing some stringent conditions, if the vehicle is released in favour of the petitioner for interim custody, it will meet the ends of justice.15. In that view of the matter, if a direction is issued to the petitioner that immediately after getting the vehicle released, within a period of one month, he has to register the said vehicle along with trailer with the jurisdictional R.T.O., thereafter, necessary documents to be produced before the Court. Further, it is ordered that before, getting the vehicle released, photographs of the said vehicle are to be taken from all angle by the Investigation Officer and the petitioner has to make an endorsement that he will not dispute the said photographs and identity of the vehicle and to that effect, he has to file an affidavit before the jurisdictional Court. It is further ordered that the petitioner shall give a surety for a sum of Rs.10,00,000/- with two solvent sureties for the like sum and a charge has to be kept on such property given as surety/ bank guarantee may be taken. In the event of any order for confiscation, it is left to the discretion of the Court either to confiscate the property which has been given as a security or the vehicle. If that is the condition of the order, then under such circumstances both the petitioner as well as the Government is going to be protected. Keeping in view the above said facts and circumstances of the case, the petition is allowed and impugned order passed by Prl. District and Sessions Judge, Vijayapur in Crl. Rev. Petition No.45/2017 dated 7.3.2017 and the order passed by learned JMFC Court, Indi in Crime No.09/2017 dated 16.2.2017 are set aside and the trial Court is directed to issue necessary orders, by taking adequate security, to release the Tractor for interim custody of the petitioner, subject to the following;CONDITIONS1. Petitioner shall execute personal bond for a sum of Rs.10,00,000/- (Ten Lakh Rupees) with two solvent sureties for the like sum to the satisfaction of the jurisdictional Court and a charge has to be created on the property given as a surety for release of such vehicle.2. The petitioner immediately after getting released the vehicle for his interim custody, shall register permanently the Tractor and Trailer within a period of one month and shall produce necessary documents before the Court within one week of its registration.3. Before getting the vehicle released in favour of the petitioner, I.O. shall take photographs of the vehicle from all angle and the petitioner has to endorse that he will not dispute the identity of the said vehicle and to that effect he has to file an affidavit before the jurisdictional Court.4. The petitioner/owner should not change or take the parts, alter the nature, condition and colour of the vehicle.5. The petitioner should file an affidavit that he will produce the said vehicle before the jurisdictional Court as and when he is ordered to do so.