2019 Supreme(Kar) 1609

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A. PATIL, J.
Mohammad Shameer S/o Ibrahim P. – Appellant
Versus
State of Karnataka Mines and Geology Department Represented by State Public Prosecutor – Respondent
Criminal Revision Petition No.988/2019
Decided on : 22-10-2019

Headnote:

MMDR Act of 1957 - Section 4(1), 9, (23)(c), 1E and G and 24(1) E, r/w 21(1) - Karnataka Minor Mineral Concession Rules, 1994 - Rule 43(8) – Criminal Procedure Code - Sections 451 and 45 - Competent Court having jurisdiction – Appeal against conviction - Factual matrix of case are that complainant and two others one home guard checked vehicle which was found loaded with sand and on enquiry driver admitted that same was being transported as per instructions of owner of said lorry to Kerala State and he had no permit or license to transport said sand - Said lorry was produced before Department of Mines and Geology and accordingly lorry was seized and a case was registered - Subsequently an application came to be filed by petitioner-owner under Sections 451 and 457 of Criminal Procedure Code for release of vehicle bearing Registration for interim custody - It is contended in said petition that he is the absolute owner of said vehicle and complainant has filed a case under Section 4(1), Sections 9, (23)(c), 1E and G and 24(1) E, r/w 21(1) of MMDR Act of 1957 - Seized vehicle is in custody of Police - If said vehicle is kept in police station it will become scrap and will cause heavy loss to petitioner and it is national waste - Said vehicle is not required for purpose of investigation and his family members are dependent upon income of vehicle - He is ready to abide by any conditions imposed by Court – Held, Orders passed are to be executable - Usually vehicles involved in such cases will be tractor lorry and other vehicles which are mostly used by agriculturist for agricultural purposes - If such a harsh condition is imposed to give bank guarantee equal to double value of vehicle then under such circumstances owners of vehicle will not be in a position to get back vehicle - In order to give bank guarantee he has to keep value of vehicle in form of cash/amount in bank - Practical aspect of situations if it is seen owners will not be some times involved and there may not be any knowledge or connivance - Driver himself or person who has been entrusted with vehicle might have been used for transportation of sand or mineral without knowledge or intention of owner - In that light it is very difficult for a poor agriculturist/owner to comply such conditions by giving bank guarantee double value of vehicle – Admittedly said application has been filed by petitioner under Sections 451 and 457 of Criminal Procedure Code nowhere Criminal Procedure Code imposes such harsh condition while releasing vehicle for interim custody - No doubt KMMC Rules prescribes confiscation of vehicle but only intention of legislature is that said vehicle should not be used frequently for similar types of offence and in case of confiscation of vehicle to recover said amount without any further delay to restrict such type of offences - But that is not only aspect which has to be seen for purpose of interim release of vehicle - Hon’ble Apex Court in case has ruled under what circumstances and on what conditions seized property has to be released for interim custody - Said proposition of law has been repeatedly reiterated in catena of decisions of this Court as well as Hon’ble Apex Court - Courts below while exercising power under Section 451 or 457 of Criminal Procedure Code has to keep in mind said Rule 43(8) and also provisions of Criminal Procedure Code and strike a balance to pass an appropriate executable orders protecting intention of legislation and not cause loss or to lose depreciation of vehicle - If said vehicle is kept in custody of police unused then it may rust and ultimately it may be scrapped - In that light if Rule 43(8) if it is seen said vehicle will become value less and very purpose of Rule itself is going to be defeated and person who has committed offence will not feel pinch of same and at same time the genuine owners who have not connived with the accused driver are going to be punished. Ultimately, object is in the event of conviction of accused for said offence vehicle used is liable to be confiscated and same will be sold in auction amount so obtained will be credited to State account - Petition is partly allowed