IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 5120 of 2008(H) ------------------------- CMP.911/2008 of J.M.F.C., PARAVOOR .................... PETITIONER: ------------ P.KUMAR, 3RD STREET, SREENIVAS NAGAR, OWNER OF SREE BRAGADEESWARAN EARTH MOVERS, ARYAM KUPPAM, PONDICHERRY. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.S.HARIKRISHNAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOLLAM. 3. THE S.I. OF POLICE, CHATHANNOOR. 4. THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM. 5. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.5120 of 2008 ---------------------------------------- Dated this the 18th day of February 2008 J U D G M E N T A vehicle belonging to the petitioner was seized by the police alleging violation of the provisions of Section 4 read with 21 of the Mines and Minerals (Regulation and Development Act, 1957. Crime was registered on 22/1/2008. The production of the vehicle was reported to the court. The petitioner appeared before the learned Magistrate to claim release of the vehicle. The petition was dismissed by the impugned order placing reliance on the decision in Abdul Samad v. State of Kerala [2007 (4) KLT 473] taking the view that such an application is not maintainable. My attention has been drawn to the later decision in Moosakoya v. State of Kerala [2008(1) KHC 464(DB). 2. The learned counsel for the petitioner submits that these decisions which have been rendered under the 'The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001' have no relevance while considering a claim for return of the vehicle seized under the Mines and Minerals (Regulation and Development) Act 1957 inasmuch as there is no provision in the latter statute for production of the vehicle before any authority other than the court and there is no stipulation W.P.C.No.5120/08 2 that any other specified authority has the jurisdictional competence to initiate proceedings for confiscation of the vehicle. Only provision speaking of the liability of such vehicle for confiscation - Section 21(4A), only stipulates that confiscation can be ordered by the court competent to take cognizance of the offence. The learned counsel for the petitioner, in these circumstances, submits that the learned Magistrate erred completely in abdicating his jurisdiction under Section 457 Cr.P.C. 3. The learned Public Prosecutor fairly concedes that the decisions of the Division Bench in Abdul Samad v. State of Kerala [2007(4) KLT 473] and Moosakoya v. State of Kerala [2008(1) KHC 464(DB) would not comply to proceedings for release of the vehicle seized under the provisions of the Mines and Minerals (Regulation and Development) Act 1957 inasmuch as there is no specific stipulation for confiscation of vehicles involved in offences punishable under that Act except S.21(4A) referred above. In these circumstances, the learned Public Prosecutor fairly submits that the learned Magistrate has the jurisdictional competence under Section 457 Cr.P.C unlike in a case of seizure under the 'The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001' for release of vehicles seized. W.P.C.No.5120/08 3 4. I accept the submission of the learned counsel. I am satisfied that the vehicle can be released to the petitioner subject to appropriate terms and conditions. 5. In the result: a) This writ petition is allowed. b) The impugned order is set aside. c) It is directed that the vehicle involved in this case - excavator seized by the police shall be released to the petitioner on the following terms and conditions: i) He shall place before the learned Magistrate all documents to prove that he is the person entitled to possess the said vehicle in accordance with law. ii) He shall execute a bond for an amount equal to the value of the vehicle to be determined by the learned Magistrate in his discretion, with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) The petitioner shall, in such bond, undertake to produce the vehicle before the court or any other authority, as may be directed by the court from time to time, in the same condition in which it is handed over to him. (R.BASANT, JUDGE) jsr W.P.C.No.5120/08 4 W.P.C.No.5120/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007