In a quashing petition, the Court held that prosecution under the Kerala Sand Act could not sustain as the sand was imported. However, proceedings may continue under the MMDR Act, which allows composition of the offence.
Prosecution under Sand Act quashed; petitioner liable to be proceeded under MMDR Act; offence compoundable before District Geologist.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
Crl.MC.No. 7027 of 2016 ()
CRIME NO. 555/2016 OF MANJESWAR POLICE STATION , KASARGOD
PETITIONER(S)/ACCUSED:
JAMSHEER.A AGED 34 YEARS, S/O.UNNINAPPU, AYANALLY HOUSE, KANDAMANGALAM, MANNARAKKAD, PALAKKAD DISTRICT.
BY ADVS.SMT.HEMALATHA SRI.BINU GEORGE
RESPONDENT/STATE:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. AMJAD ALI.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 7027 of 2016 ()
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A1 CERTIFIED COPY OF FIR IN CRIME NO.555/2016 OF MANJESWAR POLICE STATION
ANNEXURE A2 CERTIFIED COPY OF SEIZURE MAHAZAR IN CRIME NO.555/2016 OF MANJESWAR POLICE STATION
ANNEXURE A3 A TRUE COPY OF GOVERMENT ORDER DATED 14.12.2009
ANNEXURE A4 A TRUE COPY OF CIRCULAR NO.52289/P3/2010/REVENUE DATD 11.11.2010
ANNEXURE A5 A TRUE COPY OF JUDGMENT DATED 12.10.2015 IN WPC NO.25313/2015
ANNEXURE A6 A TRUE COPY OF INVOICE NO.947 DATED 20.9.2016 ISSUED BY M/S.SAM ENTERPRISES, BERHAMPUR PO, GANJAM, ORISSA.
ANNEXURE A7 A TRUE COPY OF ADAVNCE TAX UTILIZATION RECEIPT DATED 24.9.2016
ANNEXURE A8 A TRUE COPY OF FORM NO.15 DELIVERY NOTE DATED 24.9.2016
ANNEXURE A9 A TRUE COY OF CERTIFICATE DATED 26.9.2016
ANNEXURE A10 A TRUE COPY OF JUDGMNET DATED 30.8.2016
RESPONDENT'S ANNEXURES: NIL
TRUE COPY
P.A. TO JUDGE.
kp
RAJA VIJAYARAGHAVAN.V., J
ORDER
sand. Under the strong premise that what was being
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transported was river sand, illegally removed from some river in the State of Kerala, violating the provisions of Act 18 of 2001, the vehicle as well the sand was seized and Annexure-A1 FIR was registered as aforesaid.
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in the State of Kerala. It was in accordance with the orders issued by the Government that the petitioner had imported sand from the State of Orissa. Reference is made to Annexure-A6 invoice, Annexure-A7 Advance tax Utilization receipt, Annexure A8 delivery note and Annexure-A9 certificate issued by the Commercial Tax Officer to contend that what was seized from the vehicle of the petitioner was not river sand removed from the rivers flowing in the State of Kerala but sand imported from the State of Orissa. In view of the above, the initiation of prosecution is nothing but an abuse of process of court, is the submission.
Others [2016(40 KHC 915] to contend that a Full Bench of this Court has conclusively held that sand or even river sand brought to the State of Kerala from other States, on
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licit or illicit export, cannot be governed by the Sand Act in Kerala. According to the learned counsel, in view of the said decision, the Crime registered under Section 379 of the IPC and under the various provisions of the Act 18 of 2001 can only be quashed.
8.Per contra, the learned Public Prosecutor relying on the case of Prakash Nayak (supra) would contend that even if provisions under Act 18 of 2001 is not attracted, prosecution is perfectly possible under the MMDR Act and the rules framed thereunder. It is submitted by the learned Public Prosecutor that the petitioner has not produced any mineral transit pass issued by the competent authority in the State of Orissa which in other words would reveal that the sand was not licit. It is submitted that the Full Bench has held that the prosecution procedure including seizure and arrest as provided under the MMDR Act, 1957 will have to be
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followed in such circumstances. However, the learned Public Prosecutor would fairly submit that the Commercial Tax Officer (Admn) after verification of the Kerala Value Added Tax Information System (KVATIS) and vehicle checking register maintained in the commercial tax check post, Bangara has intimated that the vehicle bearing Reg.No . KL-51-F-7891 had crossed the check post prior to the seizure. The learned Public Prosecutor has submitted that steps have been taken for altering the Section by including the penal provisions of the MMDR Act, 1957.
10.Since the documents produced by the petitioner and also the information received from the commercial tax authorities reveals that the sand found in the vehicle was imported from the State of Orissa, the prosecution of the petitioner under Section 379 of the IPC and under Section
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20 of Act 18 of 2001 cannot be sustained.
11.However, the petitioner has not produced any mineral transit pass issued by the competent authority in the State from where the sand was exported on payment of royalty and other charges. In view of the above, and as held by the Full Bench in Prakash Nayak (supra), there is no embargo in dealing with the case under the MMDR Act, 1957 and proceedings including seizure, confiscation and prosecution can be initiated under the provisions of the said Act. Hence, though the prosecution of the petitioner under Section 379 of the IPC and under Section 20 of Act 18 of 2001 cannot be sustained in the eye of law, Annexure-A1 FIR cannot be quashed as such. The petitioners are liable to be proceeded under Section 21 of the MMDR Act, 1957 as has been held in Prakash Nayak (supra).
12.In the result, this petition is disposed of as follows:
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(i) Prosecution of the petitioner under Section 379 of the IPC and under Section 20 of the Kerala Protection of River Sand and Regulation of Removal of Sand Act, 2001 cannot be sustained and the same is quashed.
(b) However, the petitioner is liable to be proceeded against under the relevant provisions of the Mines and Minerals (Development and Regulation) Act, 1957.
(c) If the police officer who has seized the vehicle has not so far reported the fact of seizure, he shall immediately report the fact of seizure to the court having jurisdiction. The court having jurisdiction shall be empowered to pass appropriate orders as regards the sand and the vehicle involved in the cases. If application for interim custody is filed, the same shall also be dealt with by the learned Magistrate expeditiously.
(d) Alternatively, since the prosecution can be being carried on under the MMDR Act, 1957, the offence punishable under the said Act is compoundable either before or after the institution of the prosecution under Section 23A of the MMDR Act, 1957.
(e) If the petitioner is prepared to compound the offence, the Manjeswar Police is directed to produce the vehicle bearing Registration No.KL-51-F-7891 before the District Geologist, Kasaragode
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within a period of three days from the date of receipt of a copy of this order.
(f)The District Geologist, Kasaragod shall permit the petitioner to compound the offence under Section 23A of the MMDR Act on payment to that person, for credit to the Government, such sum as the said authority may specify.
(g)The above endeavour shall be completed within a period of 5 days from the date of filing of application seeking composition before the District Geologist, Kasaragod. The petitioner shall pay the amount directly before the District Geologist concerned and certificate to that effect shall be produced before the officer who seized the vehicle who shall release the vehicle as well as the sand.
Petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN.V.,
JUDGE
kp/-18.11.16
3 issues framed by the court
Whether the criminal proceedings u/s 379 IPC and s. 20 of the Kerala Protection of River Banks Act can be quashed where the sand was imported from another state.
Whether alternative proceedings under the Mines and Minerals (Development and Regulation) Act can be initiated.
Whether the offence under the MMDR Act is compoundable.
Colour shows how this judgement treated each authority
Prakash Nayak v. District Collector, Kasaragod and OthersRelied on¶48
Prakash Nayak v. District Collector, Kasaragod and Others [2016(40 KHC 915]
6 provisions across 4 enactments
Jamsheer A
State of Kerala
Raja Vijayaraghavan V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
