Police officers can seize vehicles under the MMDR Act but lack authority to file complaints under Section 22, leading to quashing of proceedings.

O R D E R

This Criminal Miscellaneous case is filed to quash the proceedings in CC No. 11/2016 on the file of the Chief Judicial Magistrate Court, Ernakulam arising from Crime No. 854/2015 of Kadavanthra Police Station. The petitioners are accused Nos. 1 and 2 in the above case. The above case is charge sheeted alleging offences punishable under Sec.4(1)(A) r/w Sec. 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'MMDR Act') and Sec.3 r/w 23 of Kerala Conservation of Paddy Land and Wetland Act, 2008 .

2. The 1^st petitioner is the owner-cum-driver of a Tipper Lorry bearing registration No. KL 40A 3564 and the 2^nd petitioner is the driver of another lorry bearing Registration No. KL 39D 1123. It is the case of the petitioners that they are earning their livelihood by hiring the said vehicles for rent.

The prosecution case is that on 19.06.2015 at about 11.30 pm, the police party seized the Tipper Lorries bearing Registration Nos. KL 40A 3564 and KL 39D 1123 alleging that the vehicles used for transporting mud earth to the marshy land (paddy land) owned by one Paul Alukka, without any permit. The police party seized the vehicles and arrested the drivers, while they were attempting to unload the mud earth to the alleged property is the allegation. Annexure-1 is the FIR. After investigation, a final report is filed implicating the petitioners as accused Nos. 1 and 2. Annexure-3 is the final report. The short point raised by the petitioners is that Annexure-3 final report is filed by the Sub Inspector of Police, Kadavanthra and he is not an authorised officer to file the complaint.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The counsel for the petitioner reiterated the contentions raised in this Crl.M.C. The Public Prosecutor made available two orders of the Government and submitted that the Sub Inspector of Police is authorised to file the complaint.

5. A Full Bench of this Court in Prakash Nayak v. District Collector, Kasaragod and Other [ 2016 (4) KHC 915 ] considered the powers of the Police. It will be better to extract paragraph Nos. 28 and 29 of the above judgment.

28. “Competence of the police officer who made seizure in this case, to initiate prosecution under Section 22 of the MMDR Act cannot be questioned or doubted, because there is already a Government order authorising police officers of and above the rank of Sub Inspectors to initiate prosecution under . If an officer is authorised under the law to initiate prosecution, and if his powers as police officer under the Code of Criminal Procedure including Section 102 of the Code of Criminal Procedure are not specifically ousted or excluded under the special law, and when the offence is specifically made cognizable, the powers and authority of such police officer to make seizure under Sub Section (4) of Section 21 cannot be questioned or challenged. We find that such appointment specifically under Sub Section (4) of is required only in the case of other categories of officers than police officers. This position is made clear by the learned Single Judge in Aloshias C. Antony's case (cited supra). The learned Single Judge observed that power to seize must be corollary to the power to make arrest and to bring prosecution. The learned Single Judge also observed that the argument otherwise, that seizure of articles made by an officer not empowered to arrest but empowered to bring prosecution under of the MMDR Act, will not have effect of a legal seizure, is something difficult to digest. We fully agree with the observations and findings of the learned Single Judge in Aloshias C. Antony's case (cited supra).

29. As discussed, observed and found in the forgoing paragraphs, we come to the conclusion on the important questions of law that situations like the present one involvi