Noushad vs. State Of Kerala - Kerala High Court, 16 July 2020

The petitioner is the owner of a goods carriage vehicle bearing registration No.KL-35/J-6022. The petitioner's vehicle was seized in connection with Crime No.771 of 2019 of the Thalayolapparambu Police Station, alleging commission of offences under Sections 285 IPC, 9B(1)(a) of the Explosives Act, 1884 and 3 read with 7 of the Essential Commodities Act, 1955. The vehicle was seized on 6.7.2019 and on completion of investigation, final report was submitted before the Judicial First Class Magistrate Court-I, Vaikom on 3.10.2019. In the meanwhile, the petitioner had filed an application under Section 451 Cr.P.C seeking interim release of the vehicle. By Annexure A8 order, the learned Magistrate dismissed the application holding that the crime having been registered for offences including those under Section 3 read with Section 7 of the Essential Commodities Act (for short, 'the Act'), the court does not have the power to order release of property as per the settled position of law. Thereupon the petitioner approached the District Collector seeking release of the vehicle and by Annexure A9 order, that application was also dismissed finding that

Crl.MC.3249/2020 3 the case was pending before the juri ictional Magistrate Court and that the remedy of the petitioner is to approach that court. Hence, this Crl.M.C.

The only reason as to why the learned Magistrate refused to consider the application of the petitioner on merits is lack of juri iction in cases registered for offences under the Act. A similar issue was considered by the Honourable Supreme Court in State of M.P and others v. Rameshwar Rathod [(1990) 4 SCC 21], the relevant portion of which reads as under; “6. It was next contended by the respondent before the High Court that the criminal court was empowered under Section 7 of the Act to confiscate the vehicle after due and proper inquiry and therefore the proceedings by the District Collector under Section 6-A and Section 6-B of the Act should be quashed. Reliance was placed on several decisions and authorities. Our attention was drawn to the decision of the Mysore High Court in the case ofState v.Abdul Rasheed [AIR 1967 Mys 231 : 1967 Cri LJ 1661] , Bharat Mahey v. State of U.P. [1975 Cri LJ 890 : 1975 All Cri C 197] as well as the decision of the learned Single Judge in State of M.P.v. Basant Kumar [1972 JLJ Short Note 99] . On a consideration of the relevant authorities, the High Court came to the conclusion that the criminal court had juri iction to deal with the matter. Mr Deshpande sought to argue that in view of the enactment of the provisions of Section 6-A as well as Section 7 of the Act, it cannot be held that the criminal court continued to retain juri iction. He submitted that in view of the enactment of these provisions, it would be useless to hold that the criminal court continued to retain juri iction, otherwise the very purpose of enacting Section 6-A read with Section 7 would be defeated. We are, however, unable to accept this contention because normally under the Criminal Procedure Code, the criminal courts of the country have the

Crl.MC.3249/2020 4 juri iction and the ouster of the ordinary criminal court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. In view of the language used and in the context in which this language has been used, we are of the opinion that the High Court was right in coming to the conclusion that the criminal court retained juri iction and was not completely ousted of the juri iction. In that view of the matter, the High Court was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on furnishing the security.“ Going by the dictum in the above case, as long as juri iction of criminal courts is not ousted by the provisions of the Act, Magistrate Courts have ample powers to consider an application under Section 451 of Cr.P.C.

This court in Biju Sebastian v. State of Kerala [ILR 2016 (3) Ker. 574] considered the issue elaborately and held that unless proceedings for confiscation under Section 6A of the Act is initiated, there is no ouster of juri iction of criminal courts. As far as the instant case is concerned, the prosecution has no definite case that confiscation proceedings with respect to the petitioner's vehicle has been initiated, with notice as contemplated under Section 6B of the Act. In such circumstances, there is no ouster of juri iction as far as the Magistrate Court is concerned and hence, the impugned order, rejecting the petitioner's application for lack of juri iction, cannot be sustained.

Crl.MC.3249/2020 5 Consequently, Annexure A8 is set aside and the Judicial First Class Magistrate-I, Vaikom is directed to reconsider Crl.M.P.No.6041 of 2019 on merits and render a decision in accordance with law within ten days from the date of receipt of a copy of this judgment. The Crl.M.C is disposed of as above. V.G.ARUN, JUDGE vgs

Crl.MC.3249/2020 6 APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A1OF THE REGISTRATION CERTIFICATE NO KL-35J6022 DATED 16/04/2020. ANNEXURE A2OF THE DEALER CERTIFICATE ISSUED IN THE NAME OF ELITE AGENCY OF GO-GAS. ANNEXURE A3OF THE DEALER CERTIFICATE ISSUED IN THE NAME OF ELITE AGENCY OF GO-GAS. ANNEXURE A4OF THE GST REGISTRATION CERTIFICATE NO. 32AAHFE6012FIZO DATED 18/3/2019. ANNEXURE A5OF THE SEARCH LIST DATED 6/7/2019 OF THALAYOLAPARAMBU POLICE STATION. ANNEXURE A6OF THE FIR DATED 6/07/2019. ANNEXURE A7OF THE FINAL REPORT DATED 6/07/2019 . ANNEXURE A8OF THE ORDER IN CRL. MO.NO. 640/2019 DATED 20/08/2019 OF THE JFMC-1 VAIKOM. ANNEXURE A9OF THE ORDER DATED 29/2/2020.