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2020 DIGILAW 1463 (KAR)

Veerappa @ Virappa v. State Of Karnataka

2020-07-22

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition has been filed by the petitioner-owner of the vehicle for modification of the condition imposed in Crl. Misc. No.188/2020 dated 23.03.2020 by Prl. District and Sessions Judge, Koppal wherein the petitioner is directed to execute a renewable Bank Guarantee of any national ized bank to the value of the vehicle before the trial Court. The said condition has been imposed while allowing the application filed by the petitioner seeking release of the vehicle under Section 451 and 457 of Cr.P.C. 2. I have heard the learned counsel for the petitioner and learned HCGP for the respondent-State. 3. The factual matrix of the case are that on 15.02.2020 at about 3.30 p.m. Police Sub- Inspector of Kukanoor received a credible information that the driver and owner of the Tractor and Trailer vehicle were transporting sand without License and Permit. Therefore, he along with his staff and Pancha witnesses went to the spot to conduct raid and found a vehicle which was carrying the load and on verification, he found sand in the said vehicle and enquired the accused person i.e. driver of the said Tractor and Trailer and he told that they are not having permit or license to transport the sand and informed that the petitioner herein is the owner of the said tractor and trailer. 4. The Police Sub-inspector seized the vehicle after conducting panchanama, registered a case against the driver and owner of the said tractor and trailer for the offence punishable under Section 379 IPC and under Section 21(1) and 21(2) of MMDR Act, 1957 and under Sections 42, 43, 44 of Karnataka Minor Mineral Consistent Rule 1994. Subsequently, an application came to be filed under Section 457 of Cr.P.C. for release of Tractor bearing Reg.No.KA-35/T-4847 (Chassis No.912213067813 and Engine No.A46186) and Trailer bearing Reg. No.KA-37/T-7923 (Chassis No.00053) which was seized under PF No.16/2020 for the interim custody of the petitioner. It is contended in the said application that the applicant is the absolute owner of the said vehicle. The seized vehicle is in custody of Kukanoor Police Station. No.KA-37/T-7923 (Chassis No.00053) which was seized under PF No.16/2020 for the interim custody of the petitioner. It is contended in the said application that the applicant is the absolute owner of the said vehicle. The seized vehicle is in custody of Kukanoor Police Station. The vehicle is kept in Police Station will soon become scrap and it will cause heavy loss to the applicant and it is a National waste and the said vehicle is not required for the purpose of investigation and applicant is ready to obey any conditions imposed by the Court for release of vehicle. 5. The said application is opposed by the prosecution that the application filed by the petitioner is not at all maintainable either in law or on facts and the same is liable to be dismissed. 6. The learned 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 security to the value of the vehicle is harsh to that extent. The said condition is l iable to be modified/relaxed. 8. He further submitted that in the case of MOHAMMAD SHAMEER Vs. STATE OF KARNATAKA AND ANOTHER, (2019) 4 KCCR 3856 similar order has been passed and the simi lar condition has been relaxed. On these grounds, he prays to allow the petition and relax the condition. 9. Per contra, the learned HCGP vehemently argued and submitted that the Sessions Court after taking into consideration of the Provisions and Rule 43(8) of KMMC Rule 1994 has rightly imposed the condition of furnishing security in the form of renewable Bank Guarantee to the value of the vehicle since the provisions has been made in KMMC Rules and the same has to be followed. He placed reliance on the decision of this Court in the case of Ibrahim V/s The State of Karnataka and another decided on 21.03.2019 in Crl.P.No.100502/2019. On these grounds learned HCGP prays to dismiss the petition. 10. I have gone through the submissions made by the learned counsel appearing for the parties and perused the records. 11. On going through the records, there is no dispute in respect of release of the vehicle by the learned Prl. On these grounds learned HCGP prays to dismiss the petition. 10. I have gone through the submissions made by the learned counsel appearing for the parties and perused the records. 11. On going through the records, there is no dispute in respect of release of the vehicle by the learned Prl. District and Sessions Judge and the only issue and question raised is that the condition imposed by the Prl. District and Sessions Judge to the effect that the owner of the vehicle has to furnish security in the form of Renewable Bank Guarantee of any Nationalized Bank to the value of the vehicle before the trial Court is harsh and unexecutable. 12. For the purpose of brevity, I quote Rule 43(5) and (8) of Karnataka Minor Mineral Consistent Rule as amended by Notification No. CI 302 MMN 2017, dated 16.11.2017 which reads as under: "43. Check posts and checking of minerals in transit.- (1) XXXXXXX (2) XXXXXXX (3) XXXXXXX (4) XXXXXXX (5) The Off icer in charge of the check post or the barrier or the authorized off icer shal l seize any minor mineral including the vehicle used for transit of such minor mineral, if the driver or person in charge of such vehicle fai ls to produce a val id permit. (6) XXXXXXXX (7) XXXXXXXX (8) No release of the vehicle which shal l however not include the minor mineral so seized shal l 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 of fence 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 shal l not be released except under the orders of such Court." 13. I have gone through the said provision. The learned counsel for the petitioner has relied upon the decision in the case of MOHAMMAD SHAMEER Vs. STATE OF KARNATAKA AND ANOTHER (supra), wherein it is observed that the condition imposed is considered to be very harsh and it was relaxed for the reasons stated in paragraph No.13. Paragraph No.13 is extracted below. "13. No doubt the said order is in accordance with rule. STATE OF KARNATAKA AND ANOTHER (supra), wherein it is observed that the condition imposed is considered to be very harsh and it was relaxed for the reasons stated in paragraph No.13. Paragraph No.13 is extracted below. "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 Honble Apex Court in the case of Sundarbhai Ambalal Desai Vs. State of Gujarat, (2003) AIR SC 638 has ruled under what circumstances and on what conditions the seized property has to be released for interim custody. But that is not the only aspect which has to be seen for the purpose of interim release of the vehicle. The Honble Apex Court in the case of Sundarbhai Ambalal Desai Vs. State of Gujarat, (2003) AIR 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 Honble Apex Court. The Courts below while exercising the power under Section 451 or 457 of Cr.P.C. has to keep in mind the said Rule 43(8) and also the provisions of Cr.P.C. and strike a balance to pass an appropriate executable orders protecting the intention of legislation 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) if it 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. The condition imposed by the Prl. 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. The condition imposed by the Prl. District and Sessions Judge, Koppal directing the petitioner to furnish renewable Bank Guarantee of any Nationalized Bank to the value of vehicle before the trial Court is harsh and not within the reach of the parties and it is unexecutable. 15. Keeping in view of the above said aspect, I am of the considered opinion that though the condition imposed by the learned District and Sessions Judge, Koppal appears to be justifiable, under the above said facts and circumstances, it requires to be relaxed. 16. In that light, petition is allowed. The condition No.6 imposed in the order dated 23.03.2020 passed by the Prl. District and Sessions Judge, Koppal in Crl. Misc.No.188/2020 is relaxed.