Dinil Kumar vs The Revenue Divisional Officer Thrissur, Pin-680 001 and The Sub Inspector of Police, Kunnamkulam Police Station, Thrissur District Pin-680503.

Justice T.R. Ramachandran Nair

Faced with the proceedings issued under Act 18 of 2001, the petitioner has approached this Court by filing this Writ Petition. The vehicle involved is a mini lorry bearing registration No. KL-10E-3675. Exhibit P1 is the communication dated 29.2.2012 issued to the petitioner directing to remit an amount of Rs. 1 lakh towards value of the vehicle, by the Sub Divisional Magistrate. Reference therein is about an order dated 23.9.2011 of the very same Officer. The petitioner has produced along with I.A.No.7490/2012, a copy of the said order as additional Exhibit P2. The vehicle was ordered to be confiscated as per Section 23A (3) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001( Ordinance of 20/2011 dt.17.3.2011). The learned counsel for the petitioner submitted that as the Ordinance has already elapsed by 13.7.2011, the Sub Divisional Magistrate had no jurisdiction to pass the orders impugned. Since the Ordinance elapsed, there is no jurisdiction for the 1st respondent after 13.7.2011 and hence the orders cannot survive and I hold so.

The learned counsel for the petitioner further pointed out that the Police Officer will have to file a report and produce the vehicle before the jurisdictional Magistrate, so that the petitioner will be able to file an appropriate application under the Code of Criminal Procedure, in the light of the decision of the Division Bench of this Court in Sujith Vs. State of Kerala, . The Division Bench in paragraph No. 13 of the above judgment has directed as follows:

It is hereby ordered that the revenue and police authorities, while effecting seizure, shall ensure that any revenue official effecting the seizure, notifies such seizure, also to a police official, over and above the requirement in S.22 of the Act and the Rules. That police official may effect seizure of those goods and report such seizure to the jurisdictional Magistrate in accordance with law and any police officer effecting seizure shall, apart from reporting any such seizure to the jurisdictional Magistrate, also place a report of such seizure before the concerned revenue authority so that action can follow through the criminal court and through the revenue authority in terms of the laws. Following the aforesaid, it is further ordered that in all pending cases, the competent police officer shall effect seizure and report the same to the jurisdictional magistrate, if not already done and the competent revenue authority shall make appropriate complaint to the jurisdictional Magistrate at the earliest. This would also enable the owners of the goods or vehicles to apply for interim custody in terms of S. 451 or 457 Cr.P.C., as the case may be. In ordering release, the Judicial Magistrate shall be guided by the terms laid down by the Full Bench of this Court in Shan Vs. State of Kerala, . The appropriate authorities shall also file complaints for initiating prosecution in all cases, where offences under the Act are disclosed. These directions shall apply in dealing with sand and vehicles, seized by the police or revenue authority under the provisions of the Act or the Code of Criminal Procedure, over and above the directions in Moosakoya ( 2008 (1) KLT 538) and Thonikkadavath Shoukathali Vs. The Tahsildar and State of Kerala, , until appropriate legislative provisions are brought in.

The same is applicable to this case also.

Since the order now passed by the Sub Divisional Magistrate cannot be justified as he is not having jurisdiction, Exhibits P1 and P2 are quashed. There will be a direction to the District Collector to call for the files from the Sub Divisional Magistrate, initiate fresh adjudication proceedings and complete the same within a period of two months from the date of production of a copy of this judgment along with a copy of the Writ Petition, after hearing the petitioner. In the meanwhile, the 2nd respondent will file a report and produce the vehicle before the concerned Magistrate Court within a period of seven days from the date of production of a copy of this judgment,for enabling the petitioner to move the learned Magistrate and to get appropriate orders regarding interim custody of the vehicle.

The Writ Petition is disposed of as above.