IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3878 of 2008() ---------------------------------------- CMP.6673/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR REVN. PETITIONER(S): PETITIONER -------------------------------------------------- SAMEER, S/O.BEERANKUTTY, PALAKKAL HOUSE, POST PERUMTHALLUR, CHERIYA PARAPPUR, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. -------------------------------------------------- Crl.Revision Petition No. 3878 of 2008 ----------------------------------------------------------- Dated this the 10th day of December, 2008 O R D E R Revision Petitioner is challenging the order of Judicial First Class Magistrate, Tirur dismissing CMP No.6673/2008, an application filed for interim custody of pick up lorry bearing Registration No.KL-11-9335 under Section 457 of the Code of Criminal Procedure. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel appearing for the revision petitioner is that though the pick up lorry was earlier seized by the police in Crime No.613/2008 of Tirur Police Station for illegal transportation of sand, that Crl.R.P.No.3878/2008 - 2 - offence was compounded by the petitioner and he deposited Rs.25,000/- as penalty. It was, thereafter, never used for transporting river sand. On 8.10.2008, the vehicle was seized by the police without any cause and petitioner is prepared to execute a bond to abide by any direction. 4. Additional Public Prosecutor filed a report before the Magistrate stating that even after compounding the offence earlier, the vehicle was used for transporting sand illegally on 8-10-2008 and therefore, invoking the powers under Section 17(2) of Kerala Anti-Social Activities (Prevention) Act, 2007, for short “the Act”, vehicle was seized and report was submitted to the District Collector. It was contended that as vehicle is being used for anti-social activities, it cannot be granted on interim custody to the revision petitioner. Learned Magistrate accepting that plea, dismissed the petition. Crl.R.P.No.3878/2008 - 3 - 5. The argument of the learned counsel for the revision petitioner is that there is no material to show that the vehicle was used for illegal transportation of sand after compounding the offence earlier and therefore, the order is not sustainable. The learned counsel also argued that, in any case, learned Magistrate can grant interim custody under Section 457 of the Code of Criminal Procedure and revision petitioner is prepared to abide by any condition. 6. Learned public prosecutor submitted that under Section 17(1) of the Act, police officer is competent to search any vehicle which is being used or is about to be used for anti-social activity and is being satisfied can seize the vehicle and as provided under Section 17(2) of the Act a report was filed to the District Collector and under Section 17(3) of the Act the District Collector is entitled to pass order for destruction or confiscation of the vehicle and Crl.R.P.No.3878/2008 - 4 - therefore, the vehicle cannot be granted on interim custody to the revision petitioner. 7. Section 17(1) of the Act enables a police officer empowered by general or special order to stop and search any vehicle and seize anything which he has reason to believe has been, is being, or is about to be used for any anti-social activity. Section 17(2) of the Act provides that any officer empowered under sub-section (1) shall forthwith report to the Government or authorised officer in detail, any seizure made by him and till receipt of the order, may detain in custody anything so seized. Section 17(3) of the Act provides that the Government or the authorised officer may make such order as they deem fit, for the disposal of anything seized under sub-section (1), by destruction, confiscation or in such other manner as they may direct. Crl.R.P.No.3878/2008 - 5 - 8. Therefore, if the empowered police officer has reason to believe that lorry is being used for anti-social activities, Section 17(1) of the Act enables the officer to seize the vehicle. Once the vehicle is seized, he has to forthwith report to the Government or the authorised officer in detail and is also entitled to detain it in custody. Section 17(3) of the Act enables the Government or the authorised officer to pass appropriate order for destruction or confiscation or disposal of the article seized under sub- section (1). The Sub Inspector of Police seized the vehicle on satisfying that the vehicle is being used for anti-social activities. When the vehicle is being used for anti-social activities, he is entitled to seize the vehicle. The Sub Inspector has already reported the matter to the District Collector as provided under Section 17(2) of the Act. It is for the District Collector to pass appropriate order to dispose the vehicle seized under sub-section(3) of Section Crl.R.P.No.3878/2008 - 6 - 17. But it doesn't prevent the court from exercising the power under Section 457 of the Code of Criminal Procedure. It is not disputed that District Collector has not so far passed any order for disposal of the vehicle. In such circumstances, learned Magistrate is directed to grant interim custody of the vehicle on revision petitioner depositing Rs.50,000/- before the Magistrate and on executing a bond with two solvent sureties for the like sum not to transfer the vehicle and also undertaking to produce the vehicle before the District Collector for passing appropriate order under Section 17(3) of the Act, as and when required. Sd/- M. SASIDHARAN NAMBIAR, JUDGE skr // True copy // P.A. to Judge.