1. The petitioners in all these Crl. M.C.s and the Crl. R.P. are the owners of mini lorries which had been seized by the 2nd respondent, Tahsildar, for allegedly transporting river sand illegally without any authority and in contravention of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 ("the Sand Act" for short). In all these cases, the respective petitioners moved the Magistrate concerned under S. 457 Cr.P.C for interim custody of the vehicle. In Crl MC Nos. 543, 544 and 553 the Magistrate refused to entertain the applications refused to entertain the applications and returned those applications without even registering them. In Crl. M.C. No. 545/2008, even though the Magistrate registered the application as C.M.P. No. 343/2008, as per a separate order the application was returned holding that the Magistrate has no jurisdiction to entertain the application in the light of the decision of the Division Bench in P.K. Alavi & Ors. Vs. District Collector & Ors. In Crl. R.P. No.304/2008, the learned Magistrate dismissed the application which was registered as C.M.P. No. 238/2008 holding that there is no crime registered by the police and the seizure of the mini lorry was not reported to the Magistrate as there was no duty cast on the Tahsildar to report the seizure of the lorry before the Magistrate. The petitioners in all these petitions assail the action of the Magistrate either refusing to entertain the application for interim custody or in rejecting the application.

2. I heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.

3. Advocate Shri. M.S. Breeze, the learned Public Prosecutor made the following submissions before me in support of the action of the Magistrate:

In P.K. Alavi & Ors.Vs. District Collector & Ors. corresponding to_ Abdul Samad Vs. State of Kerala (2007 (4) KLT 473) a Division Bench of this Court, disposing of a batch of cases, has held that the Sand Act and the Rules framed thereunder constitute a self contained code and a vehicle seized either by the police or by the revenue officials is liable to confiscation for which purpose the procedure prescribed is obtained under Rr. 27 and 28 of the Kerala Protection of River Banks and Regulation of Sand Rules, 2002. ("The Sand Rules" for short). As per the said procedure, the vehicle can either be returned to the owner or the possessor thereof if such owner or possessor remits an amount towards the River Management Fund equal to the price fixed by the District Collector with fine within 7 days of seizure as provided under sub-r.3 of R.27 or can be sold by the District Collector by auction under sub-r. 2 of R.28 and the sale proceeds can be credited to the River Management Fund after deducting the expenses of auction. The police are not bound to register any crime and they are not bound to report the seizure under S.102 (3) Crl PC. Hence, the Magistrate does not possess any power to grant interim custody either under S.451 or under S.457 Crl.P.C. This position has been further clarified by the Division Bench in Moosakoya Vs. State of Kerala (2008 (1) KLT 538). The action of the Magistrate in either refusing to entertain the applications for interim custody or in rejecting such applications, does not call for interference by this Court.

4. I am afraid I cannot agree with the above submissions. No doubt, if the ratio in Alavi’s case (Abdul Samad) and Moosakoya s case is to be applied, the learned Public Prosecutor is well founded in his submissions. Moosakoyas case was only a clarification given by the very same division Bench which disposed of Alavi’s case. It is now admitted that the operation of the judgment in Alavi’s case (which is the same as Abdul Samads case since the Division Bench was disposing of a batch of cases) has now been stayed by the Supreme Court in C.C. No. 2610 of 2008 in Unnumbered S.L.P of 2008 on 22.2008. Hence, the decision of the Division Bench