IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MR. JUSTICE G. NARENDAR CRIMINAL PETITION NO /2015

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1 1 BETWEEN: IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 16 TH DAY OF APRIL 2015 BEFORE THE HON BLE MR. JUSTICE G. NARENDAR CRIMINAL PETITION NO /2015 UMESH HANUMANTHAPPA KORAVAR, AGE: 44 YEARS, OCC: BUSINESS, R/O.NO.584, 2 ND CROSS, NEAR LAST BUS STOP, ANAND NAGAR, OLD HUBLI, DIST: DHARWAD PETITIONER (BY SRI : VIDYASHANKAR G DALAWAI, ADVOCATE) AND : THE STATE OF KARNATAKA, BY SPP... RESPONDENT (BY SRI K.S. PATIL, HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER OF THE I- ADDL. DIST. & SESSIONS JUDGE, HAVERI, DATED IN CRL.RP.NO.231/2014 CONFIRMING THE

2 2 ORDER DATED PASSED BY THE CIVIL JUDGE & JMFC COURT, SHIGGAON IN BANKAPUR P.S. CRIME NO.148/2014 AND ALLOW THE APPLICATION FILED BY THE PETITIONER. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R This petition is filed praying to set aside the order of the I Addl. District and Sessions Judge, Haveri, dated in Crl.R.P. 231/2014 confirming the order of Civil Judge and J.M.F.C., Shiggaon dated rejecting the application filed under Section 457 of Cr.P.C. for interim custody of the seized vehicle bearing Reg. KA- 25/D-4035 seized in Bankapur P.S. Crime No.148/ The gist of the facts in this case is that one Annappa Ramanna Savanur of Mulakeri who is the accused was transporting stolen sand in the seized vehicle and the said vehicle belongs to the petitioner. It is the case of the respondent that

3 3 vehicle was being used for illegal transportation of sand, which is an offence under the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the M.M.R.D. Act, for brevity) and the provisions of Karnataka Minor Mineral Concession Rules. 3. The lorry on being intercepted by the officials of State Government, the driver failed to produce mineral transport permits as is mandatory under the Act and State Rules. Whereupon the vehicle was detained and enquiry revealed that the sand being transported by the vehicle has been illegally mined. Upon such information, the vehicle and the sand therein was detained and seized by the competent officer and a complaint came to be lodged against the accused and on the directions of the jurisdictional court, the vehicle was permitted to be held in the custody of the Executive Engineer, P.W.D. Department, Shiggaon. The complaint came to be registered as Crime No.148/2014 for the offences punishable under Section 379 of

4 4 I.P.C. read with Rule 3 (1), 42, 43(3) of the Karnataka Mineral Concession Rules. 4. The petitioner, who is the owner of the vehicle approached the jurisdictional court with an application under the provisions of 457 (2) of Cr.P.C. seeking interim custody of the vehicle. The court of original jurisdiction by cryptic order has been pleased to reject the application for interim custody by relying on the provisions of Section 21(4A) of the M.M.R.D. Act, which reads as follows 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. 5. A reading of the provision demonstrates that any vehicle or equipment which is used in illegal mining or illegal transportation is liable for confiscation and on the said sole ground the application came to be rejected. Aggrieved, the

5 5 petitioner has approached the Appellate court being the I Addl. District and Sessions Judge, Haveri. It has been contended before the revisional court that the vehicle is the source of livelihood for the petitioner and his family is dependant on the same and he has submitted that he is willing to abide by any condition that may be imposed by this Court. The revisional court after considering the contentions of both the parties was pleased to hold that the jurisdictional court was justified in rejecting the application for interim custody. Reasoning by the revisional court for rejecting the application is that the said lorry was only meant for transportation of goods other than forest produce and minerals. 6. But, in the instant case, the lorry was found transporting stolen sand, and hence, the revisional court concluded that the jurisdictional court was justified in rejecting the application for interim custody. 7. In the above facts and circumstances, the question that falls for consideration of this Court is :

6 6 Whether the reasoning of the courts below to reject the application for interim custody under the provisions of Section 457 of Cr.P.C. are legal and tenable? 8. The answer of this Court is in the negative. 9. It is contended by the petitioner s counsel that the order by both the courts are whimsical and are contrary to the settled position of law and to the provisions of the Act. He would rely on a host of orders by this Court, which in turn, has been passed after relying upon the orders passed by the Hon ble Apex Court, wherein the Apex Court has been pleased to direct seized vehicles to be released to the interim custody of the owners pending disposal of the cases and the rationale behind the said judgment has been the singular fact that motor vehicles if kept in unused condition for a long period of time is likely to result in deterioration of their condition and consequential serious erosion of their value.

7 7 10. The counsel submits that there can be no quarrel with the proposition that vehicles are liable for confiscation as provided under the Act and the Rules, particularly under the provisions of Section 21(4A) of the M.M.R.D., but he would point out that such confiscation has to be by an order of the Court and the Court is entitled to pass such an order only after full-fledged trial, which he points out is a time consuming process and could even take several years for the cases to reach their logical conclusion. 11. It is contended by the petitioner s counsel that the seized vehicles are presently parked in an open space and left at the mercy of the vagaries of weather and it is several months now which has resulted in corrosion of parts due to exposure to rain and sunshine. He would also submit that the engines of the vehicles would have also developed snags in view of the fact that the same have not been subjected to repair and service at appropriate time. He would state that any further delay in release

8 8 or the continued detention of the vehicles would ultimately result in the vehicles being reduced to scrap and would not be of any benefit to anyone and would result in an irreparable loss, be it either to the original owner or if confiscated to the State. The petitioner s counsel contends that this Court has been consistently holding that property seized by the authorities has to be handed over to the interim custody of the claimants pending adjudication of the cases. He would rely upon the order rendered by this Court in W.P. No.3347/2007, 3362/2007, Crl.P. No.1099/2013, Crl.P /2014, Crl.P. No /2014 and another judgment of the Madras High Court rendered in Crl. Revision Case (MD) No.112/2015 and also on the judgment of the Hon ble Apex Court reported in Laws (SC) , wherein the Hon ble Apex Court was pleased to frame guidelines with regard to the disposal of property in custody during the pendency of cases. He would further point out that this Court while ordering the release of vehicle to the interim custody of owners has relied upon the observation of the Hon ble Apex

9 9 Court reported in AIR (SC) (Sunderbhai Ambalal Desai vs. State of Gujarat), and paragraph 7 of the said judgment reads as under : In our view, whatever be the situation, it is of no use to keep seized vehicles at the police stations for a long period. It is for the magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 12. Per contra, the learned H.C.GP. would oppose the release of vehicle per say and he would admit that there are no facilities available with the respondent to station the vehicles under a covered parking area. He would also admit that if the vehicles are exposed to the vagaries of weather it would result in not only actual deterioration of the condition of the vehicle, but also in the erosion of the value of the vehicle. He would also submit that in the event this Court is of the opinion that the

10 10 vehicle is released to the interim custody of the petitioner then it may be so done by imposing suitable conditions. 13. After giving serious consideration to the various contentions, this Court is of the opinion that the plea of the applicant / petitioner merits consideration. It is not in dispute that the vehicles have been seized by the respondent and they have been permitted to retain the custody pursuant to the orders of the Court. It is also not in dispute that the detained vehicles are kept in the open space and they are also kept idle. It is common knowledge that constant exposure of the immobile motor vehicles to the vagaries of weather seriously affects the condition of the vehicle as the exposure to the sunshine and rain can lead to corrosion of parts and paint. It is also a possibility and an invitation to miscreants to try and remove valuable parts from the stationed vehicles. It is an admitted fact that the respondent is not in a position to provide constant security to the seized vehicles. If ultimately the petitioner / accused are acquitted by

11 11 the Court, which could possibly be after the lapse of few years, what could be handed over to the owner could be just scrap. It is nodoubt true that the vehicle if found to be involved in the commission of the offence is liable to be confiscated. Assuming that the vehicle will be confiscated, even then the releasable value would have seriously deteriorated and would not compensate even the charges incurred by the State to protect the said vehicle as the same would have been reduced to mere scrap. 14. As rightly pointed out by the Hon ble Apex Court, an immobile motor vehicle is of no use to anyone and the very purpose of manufacture of motor vehicle is its mobility. 15. A further reading of sub section (2) of Section 457 of Cr.P.C. would show that a person who is known to be or adequately demonstrates that he is the owner of the vehicle then the Magistrate may order the property to be delivered to him subject to such conditions. Reading of the provision makes it

12 12 amply clear that it would be the rule to release the vehicle to the interim custody and the exception would be rejection of the request for interim custody. The provision clearly states that the vehicle may be delivered subject to such conditions, as is required in the estimate of the learned Magistrate. The courts below have failed to appreciate any of the above contentions and proceed to act in a mechanical fashion. The court of original jurisdiction has refused to exercise its powers merely because the provisions of Section 21(4A) make the offending vehicle liable for confiscation. Though it be corrected, the Court has lost sight of the fact that the logical conclusion of the proceedings consumes considerable amount of time and in the interregnum the vehicle condition could deteriorate and ultimately would be of no use even if an order of confiscation is passed. The revisional Court has erroneously reasoned that the vehicle is not meant for transportation of forest produce. Any vehicle could be used for transportation of forest produce, subject to condition that the vehicle is authorised by the competent authority in the form of a

13 13 forest pass under the Forest Act and Rules or mineral dispatch order / mineral dispatch permit under the Karnataka Minor Mineral Concession Rules. In view of the above discussion, the orders dated on the application under Section 457 of Cr.P.C. passed by the Court of Civil Judge and J.M.F.C., Shiggaon in Bankapur police station in Crime No.148/2014 rejecting the said application and the order of the I Addl. District and Sessions Judge, Haveri dated passed in Crl.R.P. No.231/2014 confirming and upholding the order dated are hereby set aside and the application filed by the claimant / petitioner herein is allowed. 16. The vehicle bearing Registration No.KA 25/D-4035 seized in Bankapur P.S. Crime No.148/2014 is directed to be delivered to the interim custody of the petitioner pending adjudication of Bankapur P.S. Crime No.148/2014, subject to the conditions that

14 14 i) The petitioner shall not encumber or alienate the vehicle. ii) The petitioner shall not alter the physical features. iii) The petitioner shall produce the vehicle before the respondent police and the jurisdictional court as and when directed to do so. iv) The petitioner shall furnish a bank guarantee for a sum of Rs.2,00,000/- in favour of the jurisdictional Court and execute a personal bond for a sum of Rs.1,00,000/-. v) The petitioner shall not use the said vehicle for the transportation of any mineral as defined under the Act and Rules. vi) In the event of violation of any of these conditions the respondents are at liberty to

15 15 approach this Court for revocation of this order. The above petition is ordered accordingly. Sd/- JUDGE hnm