Joby Xavier v. Sub Inspector of Police, Kodanadu Police Station, Ernakulam District; The District Police Chief, Ernakulam District; The Senior Geologist, Department of Mining and Geology District Office, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935** ## **WP(C).No. 7544 of 2013 (P)** ## **---------------------------** ## **PETITIONER(S):** **--------------------------** **JOBY XAVIER, AGED 37 YEARS,** **SON OF SOURU, RESIDING AT ATTUPARAMBIL HOUSE, CHERANALLOR P.O., KOOVAPPADY DESOM, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT (OWNER OF TIPPER LORRIES BEARING REGISTRATION NOS. KL-40-C-6657, KL-40-A-7857 AND KL-40-E-7173).** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENT(S):** **----------------------------** **1. THE SUB INSPECTOR OF POLICE, KODANADU POLICE STATION, ERNAKULAM DISTRICT - PIN - 683 544.** **2. THE DISTRICT POLICE CHIEF, ERNAKULAM DISTRICT, ALUVA, PIN - 683 101.** **3. THE SENIOR GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY DISTRICT OFFICE, ERNAKULAM - 682 031.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. K.C.VINCENT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** **WP(C).No. 7544 of 2013 (P)** **----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -------------------------------------EXHIBIT P1. TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 25.12.2011 IN W.A.NO.1570 OF 2011.** **RESPONDENT(S)' EXHIBITS: N I L -------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 7544 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of March, 2013 ## **JUDGMENT** The petitioner has approached this Court with the following prayers : _“ 1. Issue a writ of mandamus or any other appropriate writ, order or direction, directing to the respondents to release the Tipper Lorries of the petitioner bearing registration numbers KL-40-C6657, KL-40-A-7857 and KL-40-E-7173 unconditionally._ _2. Declare that weathered rock sand is not a minor mineral and hence no licence or permit is required from third respondent for transport and transport the same and hence the seizure made by the first respondent is illegal._ _3. Issue such other writ or orders or directions, which this Honourable Court may deem fit and proper in the interest of justice and circumstances of the case.”_ 2. The learned counsel for the petitioner submits that the material which was being transported was weathered sand and no W.P.(C)No.7544/2013 2 offence will lie against the petitioner under the MMDR Act, 1957 or KMMC Rules, 1967; since it was within the quarry premises. 3. The learned Government Pleader however submits on instructions that, the commodity transported by the petitioner was nothing other than 'red earth' and that the seizure was made when the vehicles were entering the public road. 4. The learned counsel for the petitioner submits that in view of the turn of events, the petitioner would like to have the offence compounded and that the matter might be disposed of giving appropriate directions to the first respondent in this regard. 5. Coming to the extent of relief liable to be granted, the compounding provision reads as follows : “ **Section 23A. Compounding of offence** (1) Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Provided that in the case of an offence punishable W.P.(C)No.7544/2013 3 with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under subsection (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith.” “ **Rule 60A. Compounding of offences.** (1) Any offence punishable under these rules may, either before or after the institution of the prosecution be compounded by the person authorised under rule 59 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government of such sum as that person may specify. Provided that in the case of an offence punishable with fine only no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under subrule (1) no proceeding or further proceeding as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender if in custody, shall be released forthwith.” 6. Now, the question that remains is, what fee could be imposed for compounding the offence, if the petition for compounding is allowed. By virtue of the proviso to Section 23A(1) and the proviso W.P.(C)No.7544/2013 4 to Rule 60A(1), it cannot exceed the maximum amount of fine which may be imposed for that offence ( **in respect of offences punishable with fine only** ). The penalty is stipulated under Section 21(1) of the Act and Rule 58(1) of Rules. The said provisions read as follows : ## “ **Section 21. Penalties.** (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.” ## **“Rule 58. Penalties.** (1) Whoever contravenes any provision of these rules shall be punishable with imprisonment for a term which may extend to one year, or with a fine which may extend to five thousand rupees or with both and in the case of continuing contravention, with an additional fine which may extend to five hundred rupees, for every day during which such contravention continues after conviction for the first such contravention.” 7. True, as per Rule 58, it is provided that the maximum fine that can be imposed in respect of infringement is only Rs. 5,000/-. But, coming to the provisions of the Act i.e Section 21(1), the maximum fine that could be imposed is Rs. 25,000/- in respect of the two specific W.P.(C)No.7544/2013 5 instances taken care of (under Sub Section (1) and Sub Section (1A) of Section 4 of the Act. Sub section (1A) of Section 4 reads as follows : “(1A) No person shall transport or store or cause to the transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.” 8. Infringement of other provisions are taken care of by Sub Section (2) of Section 21 of the Act, read with Rule 58 of the Rules. When a special provision is there with regard to the instances under Sub Section (1) and (1A) of Section 4 of the Act, as dealt with under Section 21(1), it has to be guided by such special provision and not by the general provision of the Rules under Rule 58. That apart, the ceiling with respect to the 'maximum fine' is only in respect of the offences which are **liable to be punished by fine only** ; as clear from the proviso to Section 23A(1) of the Act and the proviso to Rule 60A (1) of the Rules; whereas the offences under Section 4(1A) is one which can be punished with imprisonment for a term which may extend to two years or with fine which may extend to twenty five thousand rupees or with both ( see paragraphs 21, 22, 23 and 24 of the judgment W.P.(C)No.7544/2013 6 passed by a Division Bench of this Court reported in **Ismayil v. Deputy Tahsildar [2011(2) KLT 322].** 9. Considering the scope for compounding and the probable amount that could be imposed as compounding fee in tune with the relevant provisions of law; in some other cases which came up for consideration before this Court ,interim orders were passed, enabling the petitioners to have the vehicle concerned released as an interim measure, on satisfaction of a sum of Rs. 25,000/- (Rupees Twenty five thousand only) before the concerned respondent/S.I. of Police and on executing a Simple Bond undertaking to produce the vehicle as and when called for and that the vehicle will not be alienated or encumbered during pendency of further proceedings. In some other cases, interim orders were passed earlier, directing the concerned respondent/S.I. of Police to consider the application preferred by the petitioner for compounding the offence within the time specified therein and also to release interim custody of the vehicle, on executing a 'simple bond' and giving an 'undertaking' to produce the vehicle as and when called for by the Court or by the authorities concerned and 7 W.P.(C)No.7544/2013 that the petitioner will not transfer or encumber the vehicle or reduce its value in the meanwhile. In yet another group of cases it was brought to the notice of this Court that the concerned respondent/S.I. of Police had already registered a Crime and that vehicle was produced before the concerned Judicial First Class Magistrate having jurisdiction over the area. In such cases also, interim orders were passed earlier, directing the concerned respondent/S.I. of Police to consider and pass orders in the application stated as preferred by the concerned petitioner for permission to compound offence. 10. There was a contention for many a petitioner in similar cases that, once the offence is compounded, no further proceedings for confiscation of vehicle will lie, by virtue of the clear mandate under Sub Section (2) of Section 23A of the Mines and Minerals (Development and Regulation) Act, which was sought to be opposed by the learned Government Pleader appearing for the respondents in the concerned cases, pointing out that, the bar under Sub Section (2) of Section 23A, was only in respect of offence punishable with fine only and this being the position, even if the offence is compounded, it was W.P.(C)No.7544/2013 8 still open for the Court to proceed against the vehicle and to have it confiscated. 11. The learned counsel for the petitioners submits that by virtue of Sub Section (2) of Section 23A of the Act, no further proceedings might be permitted to be pursued against the petitioner or his vehicles in respect of the same offence. 12. This issue was considered by another learned Judge of this Court in a batch of cases [W.P.(C) 24494 of 2012 and connected cases] and as per the judgment dated 09.01.2013, reported in **2013 (1) KLT 600 ( Digil v. Sub Inspector of Police)** , it was held in paragraph 24 that, once the offences alleged are compounded, no further proceedings for confiscation of the vehicle can be sustained. The observation made by the learned Judge in paragraph 25 is relevant, which is extracted below : 25. Therefore, in cases where the offences are compounded in the light of sub-section (2) of Section 23A of the Act and Rule 60A of the Rules, no proceedings can be taken against the offender. In the light of the fact that the court can take cognizance only on a complaint in writing, it cannot be said that after the composition of the offence a fresh W.P.(C)No.7544/2013 9 complaint can be filed. Even in respect of cases where complaint has been filed, if the offence is compounded, a report will have to be filed before the court and the complaint will have to be closed . When power is given to the court itself to confiscate the vehicle and no separate procedure is prescribed in such cases by the main body of Section 21, it is not possible to accept the contention of the learned Government Pleader that again an order of confiscation can be passed by the court. No specific procedure is prescribed under the enactment or under the Miner Mineral Concession Rules to approach the court in such cases to proceed with the confiscation proceedings. The rules framed under Section 15 of the Act by the State Government do not provide anything with regard to the confiscation proceedings as already noticed. It may be a matter for consideration by the appropriate bodies to bring in new provisions concerning confiscation proceedings. ## 13. After arriving at such a finding, the writ petitions were allowed, with the following directions : i) In cases where compounding applications have been acted upon as per the interim orders passed by this Court and the offences have been compounded and compounding fees have been collected and vehicles have been released, it is declared that no further proceedings can be taken for confiscation of the vehicles; ii) In cases where complaints have been filed before W.P.(C)No.7544/2013 10 the Court but compounding applications have been entertained and offences have been compounded, appropriate applications will be filed before the Courts and the concerned Courts will pass appropriate orders in the matter with regard to the closure of the cases pending; iii) In cases where compounding applications are yet to be filed by the parties concerned, it is open to them to file applications which will be dealt with by the officer concerned in accordance with law and they will be free to pass appropriate orders on it. If no applications are filed within a period of three weeks from today and if compounding is not being allowed, it is open to the concerned officers to complete the procedures as enjoined by law. 14. In the above circumstances, this Court finds that petitioner herein is also entitled to have similar relief. It is ordered accordingly. In any view of the mater, the vehicles (KL-40-C-6657, KL-40-A-7857 and KL-40-E-7173) shall be released to the petitioner forthwith, on payment of a sum of **Rs. 25,000/-** ( twenty five thousand only) for each vehicles and on giving a 'Simple Bond', also undertaking to produce the vehicles as and when required and that the vehicle will not be alienated W.P.(C)No.7544/2013 11 till finalisation of the proceedings as above. This shall be subject to the result of the orders to be passed in the application for compounding the offence. The Writ Petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.7544/2013 12