Kerala High Court
Alosius vs State Of Kerala on 8 December, 2023
Author: P. V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
CRL.MC NO. 9959 OF 2023
CRIME NO.820/2023 OF Mulavukad Police Station, Ernakulam
AGAINST THE ORDER IN CMP 4389/2023 OF JUDICIAL MAGISTRATE
OF FIRST CLASS-I, ERNAKULAM
PETITIONER/CLAIM PEITTIONER:
ALOSIUS, AGED 62 YEARS, S/O K.A XAVIER,
KOMARANCHATHU VEEDU VADUTHALA JETTY ROAD,
VADUTHALA.P.O ERNAKULAM,, PIN - 682023
BY ADVS.
R.ROHITH
HARISHMA P. THAMPI
RESPONDENTS/RESPONDENTS/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
SMT SREEJA V, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 08.12.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.MC.9959/2023
2
P. V. KUNHIKRISHNAN, J.
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Crl.M.C.No.9959 of 2023
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Dated this the 8th day of December, 2023
ORDER
This Criminal Miscellaneous Case is filed to quash Annexure-A1
order passed by the Judicial First Class Magistrate Court-I,
Ernakulam.
2. The petitioner filed an application under section 451
Cr.P.C to get interim custody of TATA HITACHI Ex 70 Hydraulic
Excavator of the petitioner involved in Crime No.820/2023 of
Mulavukadu Police Station. The crime is registered for offences
punishable under sections 19 & 23 of the Kerala Conservation of
Paddy Land and Wetland Act, 2008 [for short, 'the Act']. The learned
Magistrate dismissed the petition under section 451 Cr.P.C mainly for
the reason that there is no provision in the Act which provides that
the seizure of any vehicle under the above Act shall be reported to any
Judicial Magistrate. It will be better to extract the relevant portion of
the order:
'5. On perusal of the records it could be seen that the
TATA HITACHI, EX 70 HYDRAULIC EXCAVATOR belongs
to the petitioner was seized by the police. The offences
involved in Crime No.820/2023 are under sections 19 and
23 of the Kerala Conservation of Paddy Land and Wetland
Act, 2008. the provisions of the said Act do not provide that
the seizure of any vehicle under the above Act shall be
reported to any Judicial Magistrate. Moreover, there is no
provision in the Act enabling the release of the vehicle on
interim custody. In the circumstances, this Court, by
relying on the verdict of the Hon'ble High Court of Kerala
rendered in the decision reported in Shafeek v. State of
Kerala , is not inclined to allow this petition.'
3. First of all, when a Magistrate is quoting a decision, the
learned Magistrate should specifically mention the citation also. In
the above order, it is only stated that Shafeek v. State of Kerala.
This is not the way in which a decision should be mentioned in a
judicial order.
4. I am of the considered opinion that, finding of the learned
Magistrate to the effect that, since there is no provision in the Act to
report the matter to the jurisdictional court, the application cannot be
entertained is not correct. This point is considered in detail in the
decision of this Court in Shan v. State of Kerala [2010(3) KLT
413]. Moreover, the counsel for the petitioner also relied the
judgment of this Court in Eldhose Mani v. Sub Inspector of
Police, Kottayam and Others [2022(7) KHC 91], in which, it is
stated that the confiscation of vehicle is not justified when vehicle is
used for conversion of property that is not included in the data bank.
The case of the petitioner is that the property in dispute is not
included in the data bank. In the light of the above two decisions, I
am of the considered opinion that the matter is to be reconsidered by
the learned Magistrate.
Therefore this Crl.M.C is disposed of with the following
directions:
a) Annexure-A1 order is set aside.
b) The Judicial First Class Magistrate Court-I,
Ernakulam is directed to reconsider CMP No.4389/2023
in Crime No.820/2023 of Mulavukadu Police Station
afresh, after giving an opportunity of hearing to the
petitioner and the prosecutor concerned and also in the
light of the dictum laid down by this Court in Shan's case
(supra) and Eldhose Mani's case (supra).
Sd/-
P. V. KUNHIKRISHNAN
JUDGE
Sbna/
PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF THE ORDER IN C.M.P.
NO.4389 OF 2023 DATED 22.06.2023 PASSED
BY THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-I ERNAKULAM
