Jahafar M., Mubarak T.K., and Mohammed Noushad v. The Inspector of Police, Mannarkkad Police Station, Palakkad District, and The District Geologist, Department of Mining and Geology, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945** ## **WP(C) NO. 23629 OF 2023** ## **PETITIONERS:** **1 JAHAFAR M AGED 45 YEARS S/O HAMZA M, MANNIL HOUSE, KODAKKAD, KOTTAPADAM, MANNARKKAD, PALAKKAD, KERALA,PIN - 678583 (OWNER OF TIPPER LORRY BEARING REGISTRATION NO. KL-50-A-4020). 2 MUBARAK T.K AGED 30 YEARS S/O HAMZA T K, THOTTIKULAYAN HOUSE, ARAKKUPARAMBA P.O, THEYYOTTUCHIRA, MALAPPURAM PIN - 679322 (OWNER OF TIPPER LORRY BEARING REGISTRATION NO. KL-53-C-2348). 3 MOHAMMED NOUSHAD AGED 43 YEARS S/O MUSA HAJI, KANJIRATHIL, NATTUKAL, THACHANATTUKARA- I, PALAKKAD PIN - 678583 KERALA (OWNER OF THE EXCAVATOR JCB BEARING REGISTRATION NO. KL-14-P-7712).** **BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ BIPIN KRISHNAKUMAR MOHAMMED SHEHIN.S.S VISHNU P.S. NIMISHA ANTONY ABHIJITH P.A.** **RESPONDENTS:** **1 THE INSPECTOR OF POLICE MANNARKKAD POLICE STATION, PALAKKAD DISTRICT, PIN – 678582.** 2 ## **W.P.(C) No.23629 of 2023** - **2 THE DISTRICT GEOLOGIST DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, PALAKKAD, KERALA, PIN – 678001.** **BY ADV.K M RESHMI, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.23629 of 2023** 3 ## **J U D G M E N T** Dated this the 27[th] day of July, 2023 The petitioners state that the vehicles of the petitioners were seized by the 1[st] respondent on 13.07.2023 under the provisions of the Kerala Minor Mineral Concession Rules, 2015. The 1[st] respondent prepared a Mahazar dated 12.07.2023 in connection with the seizure. It is understood from the contents of Ext.P1 that Ext.P1 is a predated document and prepared before the date of alleged seizure. After the seizure, the 1[st] respondent reported the matter to the office of the 2[nd] respondent by report dated 14.07.2023. The gist of the allegation against the vehicles of the petitioners is that on receipt of secret information, the 1[st] respondent along with the police party went to a place by name 4 ## **W.P.(C) No.23629 of 2023** Kolappakam and found two Tipper Lorries and an Excavator parked on a ground. 2. Thereafter, on inspection, it was found that the Lorries were empty, but there was traces of earth in each vehicle. Then, the three vehicles were seized by the 1[st] respondent. The allegations levelled against the vehicles of the petitioners are wrong and baseless, contend the petitioners. There is no allegation that the petitioners' vehicles were carrying or transporting any minor minerals without valid pass, to attract the offence. As per the allegation, the vehicles of the petitioners were parked in a ground. Immediately after seizure, the petitioners approached respondents 1 and 2 and requested to release their vehicle unconditionally. But, no action has been taken. Mere parking of empty Tipper Lorries in a ground is not an offence under the provisions of the Kerala Minor Mineral Concession Rules. ## **W.P.(C) No.23629 of 2023** 5 3. This position has been clarified by this Court in a plethora of judgments including the judgment in **Unais v. District Collector** [2023(1) KLT 651]. Against Ext.P3 judgment, the District Collector, Palakkad and others filed writ appeal before the Division Bench of this Court as W.A.No.609/2023 and the said writ appeal was dismissed by the Division Bench of this Court by judgment dated 29.03.2023. The dictum of above judgments is squarely applicable in the case of the petitioners and hence the petitioners' vehicles are to be released extending the benefit of said judgments, contended the petitioners. 4. I have heard the learned Counsel for the petitioners and the learned Government Pleader representing the respondents. 5. Ext.P1 Mahazar would indicate that when the Inspector of Police examined the Tipper Lorries in question, it was found that there were traces of ordinary earth in the Tipper Lorry. It is evident 6 ## **W.P.(C) No.23629 of 2023** from Ext.P1 Mahazar that the Lorry was not loaded with ordinary earth or any other minor mineral. Evidently, the vehicles were not seized at a time when ordinary earth was being uploaded or unloaded or stored. 6. This Court has considered a similar issue in **Unais v. District Collector** [2023(1) KLT 651]. This Court held that it is only when any person raises, transports, or causes to be raised or transported without any lawful authority any mineral from any land, that an offence under the Mines and Minerals (Development of Regulation) Act, 1957 or the Kerala Minor Mineral Concession Rules, 2015, is said to have been committed. The Division Bench of this Court also took a similar view in Ext.P4 judgment in Writ Appeal No.609/2023 wherein also it has been held that only the vehicles which transport or have transported minerals are liable to be seized. The mere intention to transport is not sufficient for penalty proceedings under the Act or the Rules. Ext.P5 7 ## **W.P.(C) No.23629 of 2023** judgment is also to the same effect. In the circumstances, following the law laid down by this Court in Exts.P3 to P5 judgments, the writ petition is allowed. The 1[st] respondent is directed to release the Tipper Lorry bearing registration Nos.KL-50A-4020 and KL-53C-2348 and an Excavator bearing registration No.KL-14P-7712 to the petitioners forthwith. Sd/- **N. NAGARESH JUDGE** ams 8 ## **W.P.(C) No.23629 of 2023** ## **APPENDIX OF WP(C) 23629/2023** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SEIZURE MAHASAR DATED 12.7.2023 PREPARED BY THE FIRST RESPONDENT Exhibit P2 TRUE COPY OF THE REPORT DATED 14.07.2023 SUBMITTED BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT Exhibit P3 TRUE COPY OF THE JUDGMENT IN UNAIS VS. DISTRICT COLLECTOR REPORTED IN 2023(1) KLT 651 Exhibit P4 TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HONOURABLE COURT DATED 29.3.2023 IN W.A.NO.609 OF 2023 Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 4.4.2023 IN WP(C) NO.11862 OF 2023**