Thus on an analysis of the provisions contained in Section 23A of the Sand Act I find that the right authority to release properties seized under Section 23 of the Sand Act, is infact the Judicial First Class Magistrate having jurisdiction over the area, and not the Sub Divisional Magistrate. It is very clear that the power of Sub Divisional Magistrate is only to decide on confiscation. Once he gets the report of seizure under Sub Section 1, the Sub Divisional Magistrate will have to initiate confiscation proceedings, he will have to give proper notice as required under Sub Section 3, to the person concerned, and under Sub Section 4 he is authorised to take appropriate decision regarding confiscation.
IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 12TH DAY OF FEBRUARY 2015
Crl.MC.No. 294 of 2015 ()
KUMKUMA PRIYA R.Y. Vs STATE OF KERALA
Coram: MR. JUSTICE P. UBAID
The petitioner's vehicle No.TN/60/5055 is involved in
a crime registered under the Kerala Protection of River
Banks and Regulation of Removal of Sand Act (the Sand
Act).
The Sub Inspector of Police, Payyanur seized the
said vehicle when river sand was being transported in the
said vehicle illegally.
On seizure the vehicle was
produced by the Sub Inspector before the Sub Divisional
Magistrate, Thalassery. It is not known whether the fact
of seizure was reported to the Judicial First Class
Magistrate Court having jurisdiction over that area. Any
way the petitioner herein made an application before the
Sub Divisional Magistrate for interim custody of the
vehicle.
The Sub Divisional Magistrate allowed the
application on conditions.
One condition is that the
petitioner shall deposit 30% of the value of the vehicle
assessed by the committee headed by the District
Collector, and the other condition is that petitioner shall
furnish bank guarantee for the other 70% of the value.
The said order passed by the Sub Divisional Magistrate,
Thalassery
on
26.12.2014,
in
proceedings
15342/2013 is under challenge herein.
G2-
The petitioner
challenges the said order on two grounds. One is that the
Sub Divisional Magistrate has in fact no power to order
interim custody, and the other is that if at all such a
power is there, the condition imposed by the Sub
Divisional Magistrate is really unreasonable and onerous.
2.
The learned
counsel for the petitioner raised a
serious question that Sub Divisional Magistrate has no
power under the law to order interim custody of the
vehicle seized under the Sand Act, and such power can be
exercised only by the Judicial First Class Magistrate
having jurisdiction over the area, under Section 451
Cr.P.C. The matter is covered by Section 23A of the Sand
Act. This provision will indicate that the power of the Sub
Divisional Magistrate as regards the property is seized
under the Sand Act is only to order confiscation under
Sub Section 4. Sub Section 1 of Section 23 A provides
that where any property is seized under Section 23, the
officer seizing such property shall, within 48 hours of
such seizure, make a report of such seizure before the
Judicial Magistrate having jurisdiction and also before the
Sub Divisional Magistrate having jurisdiction over the
area,
whether
prosecution
proceedings
have
been
initiated or not. The last part of Sub Section 1 provides
that if seizure is made by any officer other than a police
officer the fact of seizure shall be reported to the Station
House Officer of the Police Station having jurisdiction
over the area, and on getting such report the police
officer shall take steps under Section 102 of the Code of
Criminal Procedure. Thus the provision is very clear that
when the fact of seizure is reported to the Police Station
under Section 23A (1) of the Sand Act,
or even when
such seizure is made by the police officer having powers
under the law, the police officer will have to take
necessary steps under Section 102 Cr.P.C.
This means
that the fact of seizure will have to be reported to the
Judicial Magistrate having jurisdiction, and if possible the
property
should
be
produced
before
the
Judicial
Magistrate. The law no where provides that the property
shall be produced before the Sub Divisional Magistrate.
3.
Sub Section 2 to Section 23A of the Sand Act
provides that where a report of seizure is received under
Sub Section 1 by a Judicial Magistrate having jurisdiction,
steps there on , not contrary to the provisions of the Sand
Act, shall be taken by the Judicial Magistrate as per the
provisions of the Code of Criminal Procedure.
It is
further provided that if there is a claim for the property
for interim custody, the Judicial Magistrate can release
the
property
to
the
right
person
on
appropriate
conditions, and if there is no such claim, or if the claim is
not
satisfactory,
the
property
shall
be
subject
to
confiscation under Sub Section 4. Thus it is very clear
power to release the property in interim custody under
Section 451 Cr.P.C or under Section 457 Cr.P.C.,
as
regards any property other than sand, is vested in the
Judicial First Class Magistrate Court having jurisdiction,
and not the Sub Divisional Magistrate, though there is
provision that seizure shall be reported to the Sub
Divisional Magistrate also.
The purpose of such a
provision, that seizure shall be reported to Sub Divisional
Magistrate also, is only to enable the Sub Divisional
Magistrate to initiate confiscation proceedings under Sub
Section 4.
He cannot in any circumstance release the
property, or grant interim custody under Section 451
Cr.P.C. because such powers can be exercised only by a
Judicial Magistrate.
4.
Sub Section 3 of Section 23A of the Sand Act
provides that on getting a report of seizure under Sub
Section 1 the
Sub Divisional Magistrate shall give a
notice in writing to the concerned person, requiring him
to
show
cause
confiscated.
why
the
property
should
not
be
Sub Section 4 provides that where the
owner of the property seized, or the person having
control of the same, does not furnish explanation, or does
not show cause as provided under Sub Section 3, or
where the explanation given is not satisfactory, and the
Sub Divisional Magistrate is satisfied that the property
seized under Section 23 is liable to be confiscated, the
Sub Divisional Magistrate shall, by an order, confiscate
the same, and the fact shall be informed in writing to the
owner.
The proviso to Sub Section 4 provides that the
owner of the property will have an option to remit an
amount equal to the value of the confiscated article, in
lieu of confiscation, and once that value is deposited by
him, the property can be released to the owner. This is
the
only
circumstance
where
the
Sub
Divisional
Magistrate can release property under the Sand Act.
5.
The second proviso to Sub Section 2 to Section
23A provides that release of the properties to any person
for safe custody, or disposal of the property, shall be on
sufficient security, and such release or disposal shall only
be till the completion of the confiscation proceedings
under the Act.
Confiscation proceedings as provided
under Sub Section 4, will have to be initiated and
finalised by the Sub Divisional Magistrate. So any order
passed by the Judicial Magistrate
regarding interim
custody under Section 451 or under Section 457 Cr.P.C.
will be subject to the orders of confiscation made by the
Sub Divisional Magistrate under Sub Section 4.
Even
when deciding to confiscate the property the owner of the
property will have to be given an option to deposit the
value of the vehicle as fixed by the District Collector, in
lieu of confiscation.
6.
Thus on an analysis of the provisions contained
in Section 23A of the Sand Act I find that the right
authority to release properties seized under Section 23 of
the Sand Act, is infact the Judicial First Class Magistrate
having jurisdiction over the area, and not the Sub
Divisional Magistrate. It is very clear that the power of
Sub
Divisional
confiscation.
Magistrate
is
only
to
decide
on
Once he gets the report of seizure under
Sub Section 1, the Sub Divisional Magistrate will have to
initiate confiscation proceedings, he will have to give
proper notice as required under Sub Section 3, to the
person concerned, and under Sub Section 4 he is
authorised
confiscation.
to
take
appropriate
decision
regarding
7.
As observed earlier, the last part of Sub Section
1 to Section 23A of the Sand Act is very clear that once a
property is seized under Section 23, the procedure under
Section 102 Cr.P.C. will have to be followed. This means
that the property, if possible, will have to be produced
before
the
Judicial
First
Class
Magistrate
having
jurisdiction, in compliance of the provisions under Section
102 Cr.P.C. This provision in the last part of Sub Section
1 will have to be read along with Sub Section 2 which
provides that the question of releasing properties in
interim custody shall be decided by the said Judicial First
Class Magistrate having jurisdiction.
Section 23A does
not any where provide that Sub Divisional Magistrate can
take decision regarding interim custody of the property
seized under Section 23A of the Sand Act.
Of course any
decision taken by the judicial authority regarding interim
custody, will always be subject to the confiscation orders
passed by the Sub Divisional Magistrate under Sub
Section 4.
Thus confiscation is within the
exclusive
powers of Sub Divisional Magistrate, where as releasing
properties in interim custody under Section 451 Cr.P.C.
or under Section 457 Cr.P.C. is the exclusive jurisdiction
of the Judicial Magistrate having jurisdiction over the
area.
8.
In view of the findings above, the impugned
order passed by the Sub Divisional Magistrate will have
to be set aside. The Station House Officer will have to
report the seizure before the Learned Magistrate having
jurisdiction, and the property also will have to be
produced before the learned Magistrate in compliance of
the provisions under Section 102 Cr.P.C.
Once the
property is produced and seizure is reported, the
petitioner can very well approach the learned Magistrate
having jurisdiction with necessary application for interim
custody.
Of course it is not known whether the Sub
Divisional
proceedings,
Magistrate
or
what
has
exactly
initiated
is
the
confiscation
stage
of
the
proceedings now.
In the result, this petition is allowed. The impugned
order
passed
by
the
Sub
Divisional
Magistrate,
Thalassery will stand set aside.
The Station House
Officer will take necessary steps to report the fact of
seizure to the Judicial First Class Magistrate having
jurisdiction, and produce the property before the Judicial
Magistrate. The petitioner can make a fresh application
before the Judicial First Class Magistrate for interim
custody of the vehicle, and appropriate decision will be
taken by the learned Magistrate, of course subject to
confiscation orders to be passed by the Sub Divisional
Magistrate under Sub Section 4 of Section 23A of the
Sand Act. The learned Director General of Prosecutions
will communicate this order with copy, if possible, to all
the District Collectors, and Sub Divisional Magistrates in
the State.
Sd/-
P.UBAID, JUDGE
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