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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 14TH DAY OF JUNE, 2017

BEFORE

THE HON’BLE MR.JUSTICE B. A. PATIL

CRL. PETITION No.200241/2017

Between:

Sharnabasappa
S/o Iranna,
Age: 40 Years, Occ: Agri.
R/o Kootnoor,
Tq. Jewargi,
Dist. Kalaburagi.
Owner of Tractor bearing Temporary
Reg.No.KA-32/TP-021219/2014-15,
Engine No.431024STK16704 Chassis
No.WXCL40622106895 and Blue Colour,
Trailer, represent by his Special Power of
Attorney Holder
Siddanna S/o Iranna
Age: 52 Years, Occ: Agril,
R/o Kootnoor, Tq. Jewargi,
Dist: Kalaburagi.
... Petitioner
(By Sri. Chaitanyakumar Chandriki, Advocate)

And:

The State of Karnataka,

Through, Jewargi Police Station
Represented by SPP, HC Building
Kalaburagi.
... Respondent
( By Sri. Maqbool Ahmed, HCGP)
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This petition is filed by the petitioner under Section

482 of Cr.P.C., praying to allow the above criminal petition
and set aside the order 14.10.2016 passed by the learned
JMFC at Jewargi in C R.No.250/2016 and also set aside the
order dated 14.11.2016 passed by the learned Prl. District
and Sessions Judge at Kalaburagi in Crl. Revision Petition
No.157/2016 consequently be pleased to order and direct
the learned JMFC Jewargi as well as respondent police to
release the above said vehicle, which was seized in Crime
No.250/2016 in favour of revision petitioner.

This petition coming on for admission this day, the

Court made the following:-

ORDER

The present petition has been filed under Section 482

of Cr.P.C. by the petitioner-owner of Temporary Reg.No.KA-

32/TP-021219/2014-15, Engine No.431024STK16704

Chassis No.WXCL40622106895 and trailer praying to set

aside the order dated 14.10.2016 passed by the learned

JMFC Court, Jewargi in Crime No.255/2016 and also

consequently to set aside the order passed in

Crl.R.P.No.157/2016 dated 14.11.2016 and to release the

aforesaid vehicle in his favour.

2. The brief facts are that; on 06.01.2016 at about

5.00 a.m. the respondent-police received a credible

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information that some person are transporting the sand from

Naribol to Jewargi. Immediately, the complainant secured

his official staff and two panch witnesses and went towards

Vijaypura road near cotton mill, he saw five tractors and

trailers were coming with loaded sand. Immediately, he

stopped the said tractors and the drivers of the said tractors

by stopping the tractor ran away from the spot and the

complainant seized the tractors and trailers. In this regard,

a case in Crime No.250/2016 came to be registered.

3. Initially, the petitioner by contending that he is

the owner of the said vehicle in question, filed an application

under Section 457 of Cr.P.C. before the JMFC Court,

Jewargi, praying to release the vehicle in his favour. But, the

said application came to be rejected by order dated

14.10.2015. Being aggrieved by the said order, the

petitioner preferred Criminal Revision Petition No.157/2016

before the Sessions Judge. The learned Sessions Judge by

order dated 14.11.2016 allowed the petition partly and in so

far as the vehicle in respect of present petitioner came to be

rejected. Being aggrieved by the said order, the present

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petitioner is before this Court through his Special Power of

Attorney.

4. I have heard the learned counsel appearing for

the petitioner and the learned High Court Government

Pleader appearing for the State.

5. The main grounds urged by the learned counsel

for the petitioner are that, impugned orders of the trial

Courts are not sustainable in law and are violate of Article

14 of the Constitution of India. He would further contend

that though the petitioner has produced the original

documents to show that he is the owner of the tractor and

trailer, the learned Magistrate and the learned District Judge

without looking into such documents has wrongly rejected

the applications. He would further contend that the

application was came to be dismissed only on the ground

that the said tractor has not been registered and the

registration of the trailer has not been produced. He would

further contend that the petitioner has paid the life tax to

the said tractor and trailer. He would further contend that if

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the said vehicle is detained in the police station ideal, it is

going to be rusted and it is going to be useless. He would

further contend that if the vehicle is released to his interim

custody, he is ready to abide by the terms and conditions to

be imposed by this Court and ready to offer sureties. On

these grounds, he prayed for dismissal of the petition.

6. Per contra, the learned High Court Government

Pleader would contend that the petitioner has not produced

the documents to show that the said tractor has been

permanently registered after the temporary registration. He

would further contend that it has become the habit of the

owners of the tractor not to get such vehicles registered

permanently so as to help and involve in illegal

transportation of sand from the river and also the vehicle

should not be identified and traced. He would further

contend that the petitioner has committed a serious offence

under the M.M.D.R. Act, which is considered to be a socio-

economic offence and if the vehicle is released in favour of

the petitioner, he is likely to change the nature and identity

of the vehicle. He would further contend that during the

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course of trial, identity of the said vehicle is very much

necessary and if the vehicle has not been produced, it is

going to prejudice the trial. He would further contend that

as per the provisions of Sec. 21(4) of MMRD Act, it is liable to

be confiscated to the Government. He further contend that,

when once the vehicle has been seized, the said vehicle

becomes the property of the Government and when it

becomes the property of Government, then under such

circumstances it cannot be released by the Court at any

stretch of imagination. On these grounds, he prayed for

dismissal of the petition.

7. I have gone through the submissions made by

the learned counsel for the petitioner and the learned High

Court Government Pleader. I have also perused the records.

8. Before going to discuss the contention, it is just

and necessary to go through Section 21(4A) of MMDR Act. As

could be seen from Sec. 21 (4A) of MMDR Act, it enables the

authorities in case of contravention of any of the provisions

of MMDR Act, to confiscate the mineral, tool, equipment,

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vehicle or any other thing seized under the said Act. For the

purpose of brevity, Section 21 (4A) reads as under;

“Sec.21 (4A): Any mineral, tool, equipment, vehicle

or any other thing seized under sub-section (4),
shall be liable to be confiscated by an order of the
Court competent to take cognizance of the offence
under sub-section (1) and shall be disposed of in
accordance with the directions of such Court”

9. After going through the above provisions when

the said vehicle is liable to be confiscated, then under such

circumstances, the provisions of the Act are required to be

strictly complied with and followed for the purpose of

achieving the object for which the Act was enacted. Liberal

approach in the matter with respect to the property seized,

which is liable to confiscation, is uncalled for as the same is

likely to frustrate the provisions of the Act. Before passing

an order for release of vehicle, releasing authority or Court

has to specify the reasons to justify such release. There

should not be a casual or liberal approach. The liberal

approach would perpetuate the commission of more offences

under the Act. If the mineral and natural resources are not

protected, it surely affect the mother earth and environment.

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The courts cannot shut their eyes and ignore their

obligations indicated in the MMDR Act enacted for the

purpose of protecting minerals and environment, which is

the wealth of the nation. No doubt by going through Section

21 (4A) of the MMDR Act, if any vehicle, tool, mineral or

equipment shall be liable to be confiscated by Court, it shall

not be normally released to a party till culmination of all the

proceedings in respect of such offence, including confiscation

proceedings, if any. Nonetheless, if a Court inclines to

release the vehicle during pendency of the case, adequate

security should be taken by imposing condition. No party

shall feel that release of vehicle would be easier, when such

vehicle is allegedly involved in commission of offences under

the MMDR Act. If there is liberal or causal approach in such

release, it would tempt the offender to repeat commission of

such offences under the MMDR Act.

10. Keeping in view the above aspect on perusal of

the MMDR Act, it does not say any thing about release of the

vehicle which has been seized under the MMDR Act for

interim custody. At this juncture, I feel it is just and proper

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to refer to Section 30C of the MMDR Act, which reads as

under;

“ 30C. Special Courts to have powers of Court

of Sessions.-Save as otherwise provided in this
Act, the Code of Criminal Procedure, 1973 (2 of
1974), shall apply to the proceedings before the
Special Court and for the purpose of provisions of
this Act, the Special Court shall be deemed to be a
Court of Session and shall have all powers of a
Court of Sessions and the person conducting a
prosecution before the Special Court shall be
deemed to be a public prosecutor.

11. By going through the provisions of Section 21

and 30C, nowhere MMDR Act deals with the aspect in the

event, if a vehicle has been seized, whether the said vehicle

can be temporarily released on custody to the owner of the

said vehicle or not. When there is no specific provision under

the MMDR Act, then under such circumstance, Section 30C

of MMDR Act says that Code of Criminal Procedure shall

apply to the proceedings. In that context, Section 457 of

Cr.P.C. is applicable. In the light of keeping into

consideration the scope thereunder, the application of the

petitioner ought to have been considered by the trial Court.

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12. It is contended by the learned counsel for the

petitioner that if the said vehicle is seized and kept in the

open space and left unused, then under such circumstance

it is going to loose its value, it may get rusted and it may

become valueless.

13. No doubt, Section 21 (4A) of the MMDR Act

prescribes that in the event of the proof of the offence, the

said vehicle if it is intended to be confiscated, it can be

confiscated. When once the property is seized, no doubt it

becomes the property of the Government. But, the object

and scope of Section 457 of Cr.P.C. is that in the event of

confiscation or release of the vehicle, the value of the vehicle

should not be reduced and it should not be kept laying in

the Police Station for long time. In that light, the Apex Court

in the case of Sunderbhai Ambalal Desai Vs. State of

Gujrat reported in AIR SC 2003 Page 638 has been

observed that it is of no use to keep the seized vehicle at the

police station for a long time. It is for the Magistrate to pass

appropriate orders immediately by taking proper bond and

guarantee, as well as security for return of the said vehicle, if

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required at any point of time that can be ordered to be

produced and this can be done pending application for

return of said vehicle under Section 458 of Cr.P.C.. The

scope of Section 457 of Cr.P.C. is to see that the vehicle

seized in a crime should be placed in proper custody and

while giving such custody, the Magistrate has to consider the

fact that from whose possession the said property has been

seized and whether the said person is entitled to its

possession. In that event, subject to conditions it can be

released.

14. By taking into consideration the above said

proposition of law and consciously by application of mind to

the present facts of the case on hand, it indicates that if a

person establishes that he is the owner of the vehicle, then

under such circumstances, the vehicle has to be released in

favour of said person, of course by imposing some

conditions. On perusal of the order of both the courts below,

they lost the sight of the spirit and scope of Section 457 of

Cr.P.C. and only because it has not been registered

permanently, rejected the applications.

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15. It is observed in the case of Sunderbhai

Ambalal Desai Vs. State of Gujrat cited supra, at

para 7 as under:

“7. In our view, the powers under Section 451

CrPC should be exercised expeditiously and
judiciously. It would serve various purposes,
namely:

1. owner of the article would not suffer

because of its remaining unused or by its
misappropriation;
2. court or the police would not be required
to keep the article in safe custody;

3. if the proper panchnama before handing

over possession of the article is prepared, that
can be used in evidence instead of its production
before the Court during the trial. If necessary,
evidence could also be recorded describing the
nature of the property in detail; and

4. this jurisdiction of the Court to record

evidence should be exercised promptly so that
there may not be further chance of tampering
with the articles.”

16. Keeping in view the facts and circumstances of

the case, it would be appropriate if a direction is issued to

the petitioner that immediately after getting released the

vehicle within a period of two weeks, he has to register the

said tractor along with trailer before the concerned R.T.O.

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and thereafter necessary documents to be produced before

the Court. It is also ordered that before getting the vehicle

released from all angle, the photographs of the said vehicle

are to be taken by the Investigation Officer and the petitioner

has to endorse that he will not dispute the identity of the

said vehicle and to that effect he has to file an affidavit

before the jurisdictional Court. It is further ordered that the

petitioner shall execute personal bond for a sum of

Rs.12,00,000/- with two solvent sureties for the like sum. In

the event of any order for confiscation, it is left to the

discretion of the trial Court either to confiscate the vehicle or

to proceed against the property of the petitioner or sureties

in accordance with law to recover the amount. If that is the

condition of the order, then under such circumstances both

the petitioner as well as the Government is going to be

protected. Keeping in view the above said facts and

circumstances of the case, the petition is allowed and

impugned orders passed by Prl. Sessions Judge at

Kalaburagi in Crl.R.P.No.157/2016 dated 14.11.2016 and

the order passed by learned Civil Judge and JMFC Court,

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Jewargi in Crime No.250/2016 dated 14.10.2016 are hereby

set aside and the trial Court is directed to issue necessary

orders by taking adequate security to release the Tractor for

interim custody of the petitioner, subject to the following;

CONDITIONS

1. Petitioner shall execute personal bond for a sum

of Rs.12,00,000/- (Twelve Lakh Rupees) with two
solvent sureties for the like sum to the
satisfaction of the jurisdictional Court and a
charge has to be created on such property.

2. The petitioner immediately after getting released

the vehicle for his interim custody, shall register
permanently the Tractor and Trailer within a
period of two weeks and shall produce necessary
documents before the Court.

3. Before getting the vehicle released in favour of the

petitioner, I.O. shall take photographs of the
vehicle from all angle and the petitioner has to
endorse that he will not dispute the identity of the
said vehicle and to that effect he has to file an
affidavit before the jurisdictional Court.

4. The petitioner should file an affidavit that he will

produce the said vehicle before the jurisdictional
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Court as and when ordered to do so and he will

not change or take away the spares or alter the
nature, condition or colour of the vehicle.

Sd/-
JUDGE
BL