Hamza v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938** **Crl.MC.No. 7045 of 2016 -------------------------** **CRIME NO. 567/2016 OF MANJESWAR POLICE STATION, KASARAGOD** **.....** **PETITIONER(S)/ACCUSED: ---------------------** **HAMZA,** **AGED 30 YEARS, S/O. MUHAMMED KUNHI, R/AT NELLIKATTA HOUSE, BILAL NAGAR, NEKKERAJ, CHENGLA, KASARAGOD DISTRICT.** **BY ADVS.SMT.HEMALATHA SRI.BINU GEORGE** **RESPONDENT(S)/STATE: --------------------** **STATE OF KERALA, REP. 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 09-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **Crl.MC.No. 7045 of 2016** ## **------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES: -------------------------** **ANNEXURE A1: A TRUE COPY OF FIR IN CRIME NO.567/2016 OF MAJESWAR POLICE STATION ANNEXURE A2: A TRUE COPY OF SEIZURE MAHAZAR IN CRIME NO.567/2016 OF MANJESWAR POLICE STATION. ANNEXURE A3: A TRUE COPY OF GOVERNMENT ORDER DATED 14.12.2009. ANNEXURE A4: A TRUE COPY OF CIRCULAR NO.52289/P3/2010/REVENUE DATED 11.11.2010. ANNEXURE A5: A TRUE COPY OF THE JUDGMENT DATED 12.10.2015 IN WPC 25313/2015. ANNEXURE A6: A TRUE COPY OF THE INVOICE NO.950 DATED 22.09.2016 ISSUED BY SAM ENTERPRISES, BERHAMPUR P.O., GANJAM, ORISSA. ANNEXURE A7: A TRUE COPY OF ADVANCE TAX UTILIZATION RECEIPT DATED 28.9.2016** **ANNEXURE A8: A TRUE COPY OF THE FORM NO.15 DELIVERY NOTE DATED 28.9.2016** **ANNEXURE A9: A TRUE COPY OF EXIT PASS DATED 28.9.2016 ANNEXURE A10: A TRUE COPY OF THE CERTIFICATE DATED 03.10.2016 ANNEXURE A11: A TRUE COPY OF JUDGMENT DATED 30.8.2016 IN CRL.M.C.NO.5246.2016 RESPONDENT(S)' ANNEXURE -----------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.7045 of 2016** ## **----------------------------------------Dated this the 9[th] day of November, 2016** ## **O R D E R** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioner herein is the sole accused in Crime No.567 of 2016 of Manjeswar Police Station registered for offences punishable under Section 379 of the IPC and under Sections 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as “Act 18 of 2001”). - 3.The prosecution allegation is that **,** on 29.9.2016 at 3.20 p.m., the Sub Inspector of Police, Manjeswar Police Station intercepted the Lorry bearing Reg.No.KA-19-AA7102 driven by the petitioner and on inspection, the Crl.M.C.7045/2016 2 vehicle was found loaded with sand. Under the strong premise that what was being 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. - 4.This petition is filed seeking to quash the proceedings on the ground that the continuance of proceedings is nothing but an abuse of process. - 5.I have heard the submissions of the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. - 6.The learned counsel appearing for the petitioner submits that due to the scarcity of construction grade sand in the State of Kerala, the Government has taken a policy decision to encourage the import of sand from other States as well as from other Countries. This was done in 3 Crl.M.C.7045/2016 public interest considering the huge requirement of sand 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 Tax Invoice , Annexure-A7 Advance Tax Utilisation Receipt , Annexure-A8 Delivery Note , Annexure A 9 Exit Pass and Annexure A 10 Certificate issued from 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. 7.The learned counsel would then rely on the judgment in **Prakash Nayak v. District Collector, Kasaragod and Others** [2016(4) 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 Crl.M.C.7045/2016 4 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 followed in such circumstances. However, the learned 5 Crl.M.C.7045/2016 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.KA-19-AA-7102 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. - 9.I have considered the rival submissions and have gone through the materials on record. - 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 Crl.M.C.7045/2016 6 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 petitioner is 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: Crl.M.C.7045/2016 7 (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 is 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 Sub Inspector of Police, Manjeswar Police Station is directed to produce the vehicle bearing Registration No.KA-19-AA-7102 before the District Geologist, Kasaragode within a period of three days from the date of Crl.M.C.7045/2016 8 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 Sub Inspector of Police who shall release the vehicle as well as the sand. Petition is disposed of. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps