IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 2643 OF 2008() ------------------------------ CMP.2105/2008 of JUDL. FIRST CLASS MAGISTRATE COURT-I, ALUVA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------- SINEESH K.S., S/O.SREEDHARAN, KOCHERIL HOUSE, BRAHMAMANGALAM, VAIKOM, KOTTAYAM. BY ADV. SRI.M.R.SARIN PANICKER SRI.M.R.SASITH PANICKER RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, THRIKKAKARA POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DISTRICT COLLECTOR, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2643 OF 2008 ------------------------------------------ Dated this the 15th day of October, 2008 O R D E R Learned counsel appearing for petitioner submitted that District Collector, Ernakulam has no power to impose a fine and direct release of the vehicle on depositing a fine and therefore Judicial First Class Magistrate, Aluva should have granted interim custody of the vehicle in C.M.P.2105 of 2008 filed by the petitioner. Learned counsel submitted that in such circumstances the order passed by the learned Magistrate is to be quashed. 2. Learned public prosecutor submitted that no crime is registered and the District Collector has already passed an order imposing fine on the petitioner and directing release of the vehicle, and if petitioner is aggrieved against that order, he has to challenge the same and there is no illegality in the order passed by the learned Magistrate and revision petition is to be dismissed. 3. Learned counsel relied on the decision of this Court in Ahammed Kutty v. State of Kerala (2008 (1) KLT 1068) CRRP2643/08 2 and argued that District Collector is not competent to pass an order for confiscation and under section 457 of Code of Criminal Procedure Magistrate is entitled to grant interim custody of the vehicle and therefore the order is to be quashed. It was also argued that under section 102(3) of Code of Criminal Procedure, when the vehicle is seized the matter has to be reported to the Magistrate and the fact that it is not reported will not disable the Court to exercise the power under section 457 of Cr.P.C. and therefore the order is to be quashed. 4. Petition was filed under 457 of Cr.P.C. before the Magistrate to release the vehicle KL-7/AU 414 contending that the vehicle was seized by Sub Inspector of police, Thrikkakara for illegal river sand mining and transportation, on 28.11.2007. Section 457 of Code of Criminal Procedure provides the procedure in respect of property seized by police. Under sub section (1), whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of the Code and such property is not produced before a Criminal Court during an inquiry or trial, Magistrate can pass order as he thinks fit for disposal of such property or delivery of the property to the person entitled to be in possession. Sub section (2) of section 457 provides that if the person so entitled is known, the CRRP2643/08 3 Magistrate may order the property to be delivered to him on such condition as he thinks fit and if such person is unknown, Magistrate may detain it and shall in such case issue a proclamation specifying the articles of which such property consists and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. This Court in Ahammedkutty’s case considered the effect of failure to inform the Magistrate about seizure of a vehicle under the provisions of the Protection of River Banks and Regulation of Removal of Sand Act, 2001. This Court held that in the absence of a corresponding provision in the Sand Act which is a special law, section 4(2) of Cr.P.C. is automatically attracted and in the absence of any specific provision under the Special Act, provisions under sections 451 and 457 of Code of Criminal Procedure pertaining to interim custody of properties seized will have their full operation and if the seizing officer is a revenue official, he will have to hand over the property to the police, who will have corresponding duty to register a crime and report the seizure to the Magistrate concerned. The order passed by the learned Magistrate on 31.7.2008 does not show whether a crime was registered in respect of the offence. The petition was CRRP2643/08 4 dismissed for the reason that District Collector had already passed an order directing a fine and releasing of the vehicle. It is not for the Magistrate to decide whether the order passed by the District Collector is legal or not. When it was pointed out by the prosecutor that District Collector has passed the final order in that proceedings and no crime was registered and the vehicle stood ordered to be released, Magistrate did not grant custody under section 457. In the circumstances the order cannot be termed illegal. If the case of the petitioner is that the District Collector is not entitled to pass such an order, remedy of the petitioner is to challenge that order as by order dated 27.12.2007 the District Collector had already directed release of vehicle to the petitioner on payment of fine of Rs.3,95,000/-. I do not find any reason to interfere with the order passed by learned Magistrate. If the order of the District Collector is quashed, petitioner is at liberty to approach the Magistrate under section 457. Criminal Revision Petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-