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2019 DIGILAW 1455 (KAR)

Sadashiv v. State Of Karnataka

2019-06-27

B.A.PATIL

body2019
JUDGMENT B.A. Patil, J. This petition has been filed by the petitioner/accused No.1 under Section 482 Cr.P.C. praying to relax the condition imposed by the Court below, by modifying the order dated 16.11.2018 in Mudalgi P.C.R.No.40/2018, for the offences punishable under Sections 4(1A) and 42(1) of KMMC Rules and under Section 22 of MMRD Act, 1957. 2. I have heard learned counsel for the petitioner and the learned HCGP for the respondent- State. 3. It is the case of the complainant that, on 01.10.2018 at about 5.00 am, when the complainant and his staff came near Beereshwar Temple, Mudalgi Shivapur Road, a Tipper lorry bearing No.KA-29/8144, loaded with sand came there and on enquiry, they came to know that the driver of the Tipper was having licence to transport the same to Rute Mine Head Hebballi Kerur Batkurki Lokapur Mudhol Mahaingapur Terdal. It is further alleged that the Tipper and the sand was seized in the presence of panchas and a case has been registered. Thereafter, petition was filed by the petitioner/accused before the XII Addl. District and Sessions Judge, Belagavi, under Section 451 R/w. Section 457 of Cr.P.C. to release the said Tipper lorry. The learned Sessions Judge by order dated 16.11.2018 in Criminal Case No.2848/2018, allowed the petition and released the said Tipper lorry by imposing certain conditions. Challenging the same, the petitioner/accused No.1 is before this Court. 4. It is the submission of the learned counsel for the petitioner/accused No.1 that the learned Sessions Judge has imposed a condition that the petitioner has to execute a renewable bank guarantee for Rs.12,00,000/- with two sureties for the likesum along with other conditions. It is his further contention that imposition of the said condition itself is unreasonable and ultra vires the constitutional rights. It is his further submission that, challenging the constitutional validity of the provisions of the amended MMRD Act and the notification dated 16.04.2017, he has filed a writ petition and on that ground the said condition may be relaxed. It is his further contention that the condition imposed is unreasonable and even it is impossible for the petitioner/accused to execute the said condition and to get his vehicle released. The said order has become as if a paper order without there being actual taking of the vehicle. On these grounds, he prayed to allow the petition and to relax the condition. 5. The said order has become as if a paper order without there being actual taking of the vehicle. On these grounds, he prayed to allow the petition and to relax the condition. 5. Per contra, learned HCGP vehemently argued and submitted that the petitioner/accused has applied for release of the said vehicle. The learned Sessions Judge by considering Rule 43 (8) of the KMMC Rules has rightly passed the order and there are no good grounds to relax the condition imposed by the Court below. On these grounds she prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 7. The learned District and Sessions Judge while allowing the petition has imposed the condition that the petitioner has to execute a renewable bank guarantee of Rs.12,00,000/- with two sureties for the likesum with the following conditions: i. Petitioner shall undertake to produce the vehicle whenever it is required for the purpose of investigation or trial. ii. Petitioner shall not change colour, nature or identity of vehicle and he shall not alienate the vehicle until disposal of the case. iii. Two sets of colour photographs of above said vehicle from all sides shall be taken and produced before the Court. iv. An entry shall be caused to be made in the R.C. book that the vehicle is involved in this case and it shall be removed only after the disposal of this case finally. 8. It is his specific contention of the petitioner/accused that the conditions imposed are unreasonable and it ultra vires the Constitution. It is the further contention of the petitioner that he has challenged the said constitutional validity of the provisions of the amended Act by a separate writ petition. That is the matter which has to be considered and appreciated in the said writ petition. Until and unless in the writ petition said notification made for amendment is struck off or it has been held as ultra vires of the Constitution, the said amendment will be in force and the Courts are duty bond to follow the said Rules. 9. Rule 43(8) of the KMMC Rules, 1994 reads under: "43. Until and unless in the writ petition said notification made for amendment is struck off or it has been held as ultra vires of the Constitution, the said amendment will be in force and the Courts are duty bond to follow the said Rules. 9. Rule 43(8) of the KMMC Rules, 1994 reads under: "43. Checkposts and checking of minerals in transit.- (1) XXXXXXx (2) XXXXXXx (3) XXXXXXx (4) XXXXXXx (5) XXXXXXx (6) XXXXXXx (7) XXXXXXx (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 subrule( 7) the seized vehicle shall not be released except under the orders of such Court." 10. On a close reading of the said Rule, it specifically says that the owner of the said vehicle has to give a security in the form of renewable bank guarantee of an amount equal to double the value of said vehicle. Under the said facts and circumstances, I feel that the learned District Judge has not erred in passing the said order, that too when the Rule is in existence. Challenging the said Rule will not give a right to the petitioner to get the vehicle released. 11. During the course of arguments, learned counsel for the petitioner brought to the notice of this Court the decision taken by this Court in Crl.P.No.200241/2017 dated 14.06.2017 in the case of Sharanabasappa Vs. The State of Karnataka and also in Crl.P.No.102157/2018 dated 19.12.2018 in the case of Sri. Chanagouda and Another Vs. The State of Karnataka. Those decisions have been passed by this Court prior to the amendment of KMMC 4s and the said Rule has not been discussed in detail in those decisions and as such, the said decisions are not applicable to the present facts on hand. 12. Under the said facts and circumstances, I feel that the petitioner has not made out any good grounds to relax the condition as ordered by the Court below. 12. Under the said facts and circumstances, I feel that the petitioner has not made out any good grounds to relax the condition as ordered by the Court below. Hence the petition is devoid of merit and the same is liable to be dismissed. Accordingly the petition is dismissed.