IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.REV.PET.NO. 3564 OF 2008() ------------------------------ CRMP.10741/2008 OF JUDL. MAGISTRATE OF FIRST CLASS COURT- I,CHALAKUDY .................... REVN. PETITIONER(S): PETITIONER: ------------------------------------------------------ SHAJU.E.D., AGED 42 YEARS, S/O.DEVASSY, EDASSERY HOUSE, PALAYAMPARAMBU, KADUKUTTY, THRISSUR DIST. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): STATE & RESPONDENT: -------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, MALA POLICE STATION. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3564 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of June, 2009 O R D E R -------------- This revision is in challenge of the order passed by learned Judicial First Class Magistrate, Chalakudy in Crl.M.P. No.10741 of 2008 in Crime No.63 of 2008 of Mala Police Station seeking custody of the sand involved under Section 457 of the Code of Criminal Procedure (for short, “the Code”). Petitioner was accused in Crime No.63 of 2008 of Mala Police Station for offence punishable under Section 4(1)(a) of the Mines and Minerals (Development and Regulation) Act, allegation against him being that he kept sand unlawfully in his property. Offence is said to have been detected by the Sub Inspector. Since petitioner failed to show any valid pass or permit for collection of such quantity of sand case was registered against him. Subsequently the offence was compounded by the State on the strength of an application preferred by the petitioner. It is thereafter that petitioner approached the learned magistrate under Sec.457 of the Code requesting custody of the sand. It is seen from the order under challenge that petitioner produced certain documents in the court below. Learned magistrate for reasons stated in paragraph 3 of the impugned order was not impressed by the documents. Learned CRL. R.P. No.3564 of 2008 -: 2 :- counsel contended that to deny release of sand learned magistrate has taken into account the fact that petitioner compounded the offence with the State Government. According to counsel the fact of composition cannot be taken into account for such purpose in view of the decision of this Court in Dy.Commr. of Sales Tax v. Abdulla Haji (1996(2) KLT 632) and Moideen v. State of Kerala (2007 (4) KLT 261) 2. Counsel submitted before me that no case is pending before the District Collector concerned for confiscation of the sand involved. Counsel also submitted that the matter has not been reported to the District Collector concerned. 3. I am not going into the question whether the matter was reported to the District Collector or any proceedings are/were pending. Counsel submitted that petitioner did not get an opportunity to prove the documents he produced in the court below. Though no such contention is specifically raised in the memorandum of revision, in the nature of the claim made by the petitioner and since some documents are produced, I consider it proper to give the petitioner an opportunity to prove the veracity of his claim and acceptability of the documents produced. In the circumstances the order challenge cannot be CRL. R.P. No.3564 of 2008 -: 3 :- sustained and it is liable to be set aside. Resultantly, revision succeeds. The order impugned is set aside and the matter is remitted to the court below for fresh disposal after giving the petitioner opportunity to prove his claim. If there are no proceedings pending in respect of the sand in question and subject to the decisions of this Court on the issue it will be open to learned magistrate to treat the application preferred by the petitioner as one for disposal of the property and not for mere interim custody. Petitioner shall appear in the court of Judicial First Class Magistrate, Chalakudy on 15.7.2009. THOMAS P.JOSEPH, JUDGE. vsv