The petitioners are stated to be owners of goods vehicles which were admittedly seized by the Police for the alleged violation of the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001 and the Rules there under. The allegation against the petitioners appears to be that they had transported sand in violation of the provisions contained under the Act. However, the petitioners have raised a definite contention that the transportation was on the strength of passes issued by the local statutory authority.

2. It is not in dispute that the vehicles are now lying in the custody of the Police, though report under section 102 of the code of Criminal Procedure has been filed before the court of competent jurisdiction. The petitioners had filed application before the learned magistrate for interim custody of their vehicles under Section 457 Cr.P.C. The learned Magistrate rejected the plea though a common order which is impugned in these petitions.

3. The learned magistrate dismissed the applications since according to him, it would not be proper to interfere with the jurisdiction of the District Collector who has reportedly initiated “confiscation proceedings” as contemplated under the Act. The learned magistrate took the view that the two conditions laid down under section 457 of the Code were not satisfied. In this connection the learned Magistrate placed reliance on a decision of a learned Single Judge of this court in Thimothy v. State of Kerala (1987 (1) KLT 82. the learned Magistrate went on to hold that since the dictum laid down in the above decision was “over ruled or distinguished, in the later decision in Rahim v. State of Kerala (2002 (3) KLT 340) the jurisdiction under section 457 of the Code cannot be invoked. I am afraid, the learned magistrate the proceeded at a palpably wrong tangent.

4. In this context it is necessary to refer to the relevant provisions of the Act which deals with the power of the District Collector to deal with the vehicles which are allegedly involved in illegal transportation of sand. Section 23 of the Act reads thus:

“23. Confiscation of vehicles: - Whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for seizure by the Police or Revenue officials.”

The above provision only postulates that the vehicle used for transportation of sand without complying with the provisions of the Act shall be liable for seizure by the Police or the Revenue Officials, apart from the violator being liable for punishment. Though the heading of the section indicates confiscation, the body of the section refers only to seizure.

5. Rule 27 of the Rules also not refer to any power of confiscation, though the heading of the rule is otherwise. Rule 27 reads thus:

27. Procedure for confiscation of vehicle:-

(1) The police or revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules.

(2) In the case of seizure of vehicle under sub-section (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector.

(3) The vehicle may be returned if the owner of the vehicle or the possessor remit an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure.”

Sub-rule (3) of Rule 27 postulates that the vehicle may be returned to its owner, if he or the possessor thereof remits an amount towards the River Management Fund, equal to the price fixed by the District Collector with fine within 7 days of seizure.

6. A conjoint reading of Section 23 and Rule 27 undoubtedly shows that the District Collector is not vested with the power to confiscate a vehicle. It is true that the District Collector can re