IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.990/2019 BETWEEN:
Rocky Ferrao S/o late Gabriel Ferrao Aged about 51 years R/at D.No.3-36 Highland House, Pavoor Uliya Near Infant Jesus, Chapel Church, D.K.-575 029.
(By Sri Rajesh Rai K., Advocate for Sri Chandrahasa Rai B., Advocate) AND:
State of Karnataka Represented by Mr. Niranjan A.M., S/o A.S.Mariappa Aged about 48 years Senior Geologist Mines & Minerals Department Mangaluru-575 002 Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
…Petitioner …Respondent (By Sri M.Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the condition imposed in the order passed in Crl.Misc.No.1378/2018 dated 10.01.2019 on the file of the Prl. District and Sessions Judge, D.K. Mangaluru, application filed by the Revision Petitioner under Sections 451 and 457 of Cr.P.C for release of Lorry belongs to him bearing Reg.No.KA-19- D-8571 the vehicle bearing registration No.KA-19-D-8571 is ordered to be released in favour of the revision petitioner/R.C. Owner on his furnishing security in the form of renewal bank guarantee double the value of vehicle to the satisfaction before the trial Court.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R This petition has been filed by the petitioner-owner of the vehicle challenging the order passed by Principal District and Sessions Judge, D.K., Mangaluru in Crl.Misc.No.1378/2018 dated 10.1.2019, whereunder the application filed under Sections 451 and 457 of Cr.P.C. is allowed by imposing some conditions, whereunder the vehicle bearing registration No.KA.19 D.8571 is ordered to be released in favour of the petitioner-RC Owner on his furnishing security in the form of renewable Bank Guarantee double the value of the vehicle to the satisfaction of the Court below.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. The factual matrix of the case are that; on 20.12.2017 the complainant and two others one home guard checked the vehicle bearing No.KA.19 D.8571 which was found loaded with sand and on enquiry the driver admitted that the same was being transported as per instructions of the owner of the said lorry to Kerala State and he had no permit or licence to transport the said sand. The said lorry was produced before the Department of Mines and Geology and accordingly the lorry was seized and a case was registered in P.C.No.42/2018. Subsequently an application came to be filed by the petitioner-owner under Sections 451 and 457 of Cr.P.C. for release of the vehicle bearing Registration No.KA.19 D.8571 for interim custody.
4. It is contended in the said petition that he is the absolute owner of the said vehicle and complainant has filed a case under Section 4(1), Sections 9, (23)(c)(1)(E) and (G) and 24(1) E r/w 21(1) of MMDR Act of 1957. The seized vehicle is in the custody of Ullal Police. If the said vehicle is kept in police station, it will become scrap and will cause heavy loss to the petitioner and it is national waste. The said vehicle is not required for the purpose of investigation and his family members are dependent upon the income of the vehicle. He is ready to abide by any conditions imposed by the Court.
5. The said application was opposed by the prosecution contending that the petitioner may sell the vehicle and it may be used for commission of similar type of offences and he apprehends its non-production before the competent Court during the trial. As per amendment made to Rule 43(8) of the Karnataka Minor Mineral Concession Rules, 1994 (hereinafter referred to as ‘KMMC Rules’ for short), the petitioner should execute a renewable Bank Guarantee for double the value of the seized vehicle as reported in Criminal Petition No.101008/2018 dated 11.08.2018.
6. The learned Principal District and Sessions Judge after hearing the counsel appearing for the parties has released the vehicle by imposing certain conditions.
7. It is the contention of the learned counsel for the petitioner that though the said order is justifiable, imposing of the condition to furnish bank guarantee equivalent to double the value of the vehicle is harsh. To that extent the said order is liable to be modified. It is his further submission that in the case of Sandesh K.Shetty Vs. Sri.B.K.Murthy in Criminal Revision Petition No.602/2019 dated 18.6.2019, similar order has been passed and the similar condition has been relaxed. On these grounds he prayed to allow the petition and to relax the condition.
8. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the Court below after taking into consideration the provisions of Rule 43(8) of KMMC Rules, has rightly imposed the condition of furnishing security in the form of renewable Bank Guarantee double the value of vehicle, since the provision has been made in the KMMC Rules, the same has to be followed. It is his further submission that in case of conviction of the accused for the offence, the said vehicle is liable to be confiscated to the State and in order to have guarantee of the amount the said condition has been imposed. On these grounds he prayed to dismiss the petition.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. On going through the records there is no dispute in respect of release of the vehicle by the learned Principal District and Sessions Judge. The only issue and question raised before this Court is that, the condition imposed by the Court below to the effect that the owner of the vehicle has to furnish security in the form of renewable Bank Guarantee double the value of the vehicle to the satisfaction of the Court below is harsh and unexecutable. For the purpose of brevity, I quote Rule 43(5) and (8) of the KMMC Rules as amended by Notification No.CI 302 MMN 2017, dated 16.11.2017 which reads as under:
“43. Checkposts and checking of minerals in transit.-
(1). xxx xxx xxx xxx (2). xxx xxx xxx xxx (3). xxx xxx xxx xxx (4). xxx xxx xxx xxx (5). The Officer in charge of the check post or the barrier or the authorized officer shall seize any minor mineral including the vehicle used for transit of such minor mineral, if the driver or person in charge of such vehicle fails to produce a valid permit.
(6). xxx xxx xxx xxx (7). xxx xxx xxx xxx (8). No release of the vehicle which shall however not include the minor mineral so seized shall be made unless there is an execution by the owner thereof, of security in the form of a renewable Bank Guarantee, of an amount equal to double the value of such vehicle, before the Competent Court having jurisdiction to try the offence on account of which the seizure has been made:
Provided that where a report has been made to the Competent Court under sub- rule (7) the seized vehicle shall not be released except under the orders of such Court.
11. I have carefully and cautiously gone through the said provision. The learned counsel for the petitioner has relied upon the decision in the case of Shiva Prasad Vs. The State of Karnataka in Criminal Petition No.8275/2018 disposed of on 29.11.2018 and another decision in the case of Sandesh K.Shetty quoted supra. I have gone through the said judgments. In both the judgments there was no occasion to consider the Rule-43 of KMMC Rules. Under the said facts and circumstances it has been observed that the condition imposed is considered to be very harsh and it was relaxed.
12. As could be seen from the Notification No.CI 302 MMN 2017, dated 16.11.2017, in Rule 43 sub-rules (5) (6)(7) and (8) have been amended and as per sub-rule (8) it mandates to release any vehicle so seized, shall not be released unless there is an execution by the owner thereof, security in the form of renewable bank guarantee of an amount equal to double the value of such vehicle. The word used is ‘shall’. In that light strict interpretation has to be given to the rules and it is mandate of the law. It appears, in that light, the learned Principal District and Sessions has passed the impugned order.
13. No doubt the said order is in accordance with rule. But however, the order of release passed by the Court should not be so harsh or it should not be in such manner so as to unable to reach to the parties. The orders passed are to be executable. Usually the vehicles involved in such cases will be the tractor, lorry and other vehicles which are mostly used by agriculturist for agricultural purposes. If such a harsh condition is imposed to give the bank guarantee equal to double the value of the vehicle, then under such circumstances, the owners of the vehicle will not be in a position to get back the vehicle. In order to give bank guarantee, he has to keep the value of the vehicle in the form of cash/amount in the bank. The practical aspect of the situations if it is seen, the owners will not be some times involved and there may not be any knowledge or connivance. The driver himself or the person who has been entrusted with vehicle might have been used for transportation of sand or mineral without the knowledge or intention of the owner. In that light, it is very difficult for a poor agriculturist/owner to comply such conditions by giving the bank guarantee double the value of vehicle. Admittedly, the said application has been filed by the petitioner under Sections 451 and 457 of Cr.P.C., no where Cr.P.C. imposes such harsh condition while releasing the vehicle for interim custody. No doubt, KMMC Rules prescribes confiscation of the vehicle, but the only intention of the legislature is that the said vehicle should not be used frequently for similar types of offence and in case of confiscation of vehicle to recover the said amount without any further delay to restrict such type of offences. But that is not the only aspect which has to be seen for the purpose of interim release of the vehicle. The Hon’ble Apex Court in the case of Sundarbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638 has ruled under what circumstances and on what conditions the seized property has to be released for interim custody. The said proposition of law has been repeatedly reiterated in catena of decisions of this Court as well as Hon’ble Apex Court.
The Court below while exercising the power under Section 451 or 457 of Cr.P.C. has to keep in mind the said Rule 43(8) of KMMC Rules and also the provisions of Cr.P.C. and strike a balance to pass an appropriate executable orders protecting the intention of legislature and not cause loss or to loose the depreciation of the vehicle. If the said vehicle is kept in the custody of the police unused, then it may rust and ultimately it may be scrapped. In that light, if Rule 43(8) of KMMC Rules is seen, the said vehicle will become value less and the very purpose of the Rule itself is going to be defeated and the person who has committed the offence will not feel the pinch of the same and at the same time the genuine owners who have not connived with the accused-driver are going to be punished. Ultimately, object is in the event of conviction of the accused for the said offence, the vehicle used is liable to be confiscated and the same will be sold in auction, the amount so obtained will be credited to the State account. If the same interest is protected by imposing different conditions by asking the owner to execute indemnity bond for the value of the vehicle, the same can be recovered as arrears of land revenue and a charge may be created on the said vehicle in the office of RTO, so as to avoid sale or transfer of said vehicle. If this precaution is taken, it will be in line with the intention of Rule 43(8) of KMMC Rules and also it will meet the ends of justice.
14. Keeping in view the above said aspects, I am of the considered opinion that though the condition imposed by the learned Principal District and Sessions Judge appears to be justifiable, under the above said facts and circumstances, it requires to be modified as indicate below.
15. In that light, the petition is partly allowed. The other part of the order dated 10.1.2019 is confirmed and the condition imposed for release of the vehicle to furnish security in the form of renewable bank guarantee double the value of the vehicle to the satisfaction before the Court below is modified and trial Court is directed to release the vehicle bearing No.KA.19 D.8571 in favour of the petitioner-RC owner subject to the following conditions:
i) The petitioner-RC owner shall furnish indemnity bond for the value of the vehicle with two sureties for the likesum to the satisfaction of the jurisdictional trial Court.
ii) He shall also file an affidavit to the effect that he will not dispute the identity of the vehicle during the course of trial and for marking the photographs of the said vehicle or he will produce the vehicle as and when it is required before the Court.
iii) The Investigating Officer is directed to take the photographs of the said vehicle from all angles and after obtaining the consent of the owner in the form of affidavit, the same may be considered as a part and parcel of the said records and jurisdictional RTO may be informed to keep a charge and not to transfer ownership of the said vehicle till the said case is disposed as against the accused.
iv) Owner should not use the said vehicle for similar types of offences. In the event of repeated use, the vehicle will not be released.
v) Other conditions are kept intact.
Sd/- JUDGE *AP/-