K. Razak v. District Collector, Kozhikode & Tahsildar, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934** ## **WP(C).No. 28870 of 2012 (G)** **----------------------------** **PETITIONER(S):** **-------------------------** **K.RAZAK, AGED 41 YEARS, S/O.AMMED, KAKKUR, PAVANDOOR P.O., NANMANDA, KOZHIKODE DISTRICT. (REGISTERED OWNER OF JCB/EXCAVATOR BEARING REGISTRATION NO KL-57/6988)** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S):** **----------------------------** ## **1. THE DISTRICT COLLECTOR,** **KOZHIKODE, PIN-673 001.** ## **2. THE TAHSILDAR** **KOZHIKODE, PIN-673 001.** **R1 & R2 BY SR.GOVERNMENT PLEADER SMT. M.J. RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2013 ALONG WITH WPC.NO.29265 OF 2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.28870/2012 G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1:TRUE COPY OF THE SEIZURE MAHAZER PREPARED BY THE 2ND RESPONDENT DTD 27/11/2012.** **EXT.P2:TRUE COPY OF THE INTERIM ORDER DTD 27/11/2012 IN WPC NO 28118/2012 OF THIS HON'BLE COURT.** **EXT.P3:TRUE COPY OF THE INTERIM ORDER DTD 7/12/2011 IN WPC NO 31828/2011 OF THIE HON'BLE COURT.** **EXT.P4:TRUE COPY OF THE INTERIM ORDER DTD 3/6/2011 IN WPC NO 15058/2011 OF THIS HON'BLE COURT.** **EXT.P5:TRUE COPY OF THE INTERIM ORDER DTD 11/3/2011 IN WPC NO 7689/2011 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS:** ## **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) Nos. 28870, 29265, 29628, 29823 of 2012 &497, 776 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of February, 2013 ## **JUDGMENT** The issue involved in all these cases is whether the petitioners are entitled to have the vehicles released, which were seized in connection with the alleged offences under the Mines and Minerals (Development and Regulation) Act, 1957 (in short the 'Act'), read with the Kerala Minor Mineral Concession Rules, 1967 (in short the 'Rules'). The common case of the petitioners is that, their vehicles are not involved with the offence in any manner, despite which, in view of the particular facts and circumstances involving the huge liability to be satisfied to the financiers of the vehicles, they are ready to have the offence compounded, for which necessary applications have been preferred before the concerned Sub Inspector of Police, who has seized the vehicles and are aggrieved of the delay in considering and sanctioning the same. W.P.(C)Nos.28870/2012 & connected cases 2 2. The case of the petitioners is that, there is a compounding provision under the statute by way of Section 23 A of Mines and Minerals ( Development and Regulation) Act, as well as Rule 60A of Kerala Minor Mineral Concession Rules, whereby the power and authority to compound the offence stand vested upon the officer, who is competent to prefer a complaint for prosecuting the offence. The stipulation is only to the effect that, the maximum amount which could be imposed on compounding, shall be the maximum penalty that could be imposed in respect of the office involved. Sub Section 2 of Section 23A of the Act and Sub Rule 2 of Rule 60 A of the Rules, says that once the offence is compounded, no further proceeding will lie against the person concerned. 3. Now the main dispute raised from the part of the learned Government Pleader is that, the provision to compound the offence is dealing only with reference to the 'person' and that the property ie. the vehicle, which is the subject matter involved, has to be separately dealt with, particularly in view of the probable chance to have the same confiscated by virtue of Sub Section (4A) of Section 21 of the Act. W.P.(C)Nos.28870/2012 & connected cases 3 4. The answer given from the part of the petitioners is that, there is no basis for such apprehension, for the reason that, unlike other statutes, say the Kerala Protection of River Banks & Regulation of Removal of Sand Act, Customs Act, Abkari Act, Forest Act etc., 'confiscation' and 'prosecution' do not belong to two parallel streams and that there is only one authority ie. the 'Court' to deal with both the instances. It is only on the basis of the orders to be passed by the Court in the prosecution proceedings, that the vehicle can be confiscated as clearly provided in Sub Section (4A) of Section 21 of the Act. 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 with fine only, no such sum shall exceed the maximum 4 ## W.P.(C)Nos.28870/2012 & connected cases 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 5 W.P.(C)Nos.28870/2012 & connected cases 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 W.P.(C)Nos.28870/2012 & connected cases **==> picture [7 x 9] intentionally omitted <==** fine that could be imposed is Rs. 25,000/- in respect of the two specific 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 W.P.(C)Nos.28870/2012 & connected cases 7 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 passed by a Division Bench of this Court reported in **Ismayil v. Deputy Tahsildar [2011(2) KLT 322].** 9. With regard to the factual particulars in the concerned cases, this Court finds it fit and proper to have it tabulated for convenience as given below. |**Case No.**<br>**[W.P.(C))**|**Name of the**<br>**Petitioner(s)**|**Vehicle No.**|**Seized by**| |---|---|---|---| |28870/2012|K.Razak(owner)|KL-57/6988|Tahsildar,<br>Kozhikode| |29265/2012|Ramachandran<br>(owner)<br>Binukumar (owner)|KL-25B/5159<br>KL-02/R-1386<br>KL-02/S 239|S.I.of Police<br>Chengannur<br>P.S.| |29628/2012|Kunhikoya (owner)|KL-11V/9223|Tahsildar<br>Kozhikode| W.P.(C)Nos.28870/2012 & connected cases 8 |**Case No.**<br>**[W.P.(C))**|**Name of the**<br>**Petitioner(s)**|**Vehicle No.**|**Seized by**| |---|---|---|---| |29823/2012|Kuriakose(owner)<br>Gopalan(owner)<br>Biju(owner)<br>Sajin Joy(owner)<br>Joseph(owner)<br>Regi C.Varghese<br>(owner)<br>Raveendran Pillai<br>(owner)<br>Suresh Kumar<br>(owner)<br>Anil B.Anand<br>(owner)<br>Vinod(owner)|KL-06-D-1455<br>KL-31-A-5357<br>KL-31-A-1434<br>KL-07-BV-145<br>KL-04-AC-6374<br>KL-31-2289<br>KL-03-N-5290<br>KL-27-B-1357<br>KL-03-S-131<br>KL-30-5011|S.I.of Police<br>Pandalam<br>P.S.| |497/2013|Raju.R (owner)|KL-29-F-932|S.I.of Police<br>Chengannur<br>P.S.| |776/2013|Prabash K.C.|KL-40-B-469|S.I.of Police<br>Pandalam<br>P.S.| 10. Considering the scope for compounding and the probable amount that could be imposed as compounding fee in tune with the W.P.(C)Nos.28870/2012 & connected cases 9 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 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 W.P.(C)Nos.28870/2012 & connected cases **==> picture [13 x 9] intentionally omitted <==** 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. 11. 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 still open for the Court to proceed against the vehicle and to have it confiscated. 12. During the course of hearing, the learned counsel for the petitioners submits that petitioners would like to have the offence ## W.P.(C)Nos.28870/2012 & connected cases **==> picture [13 x 9] intentionally omitted <==** compounded and that the relief sought for would stand confined to cause the matters to be considered accordingly for compounding the offence, simultaneously adding that by virtue of Sub Section (2) of Section 23A of the Act, no further proceedings might be permitted to be pursued against the petitioners or their vehicles in respect of the same offence. 13. 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 09.01.2012, 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 complaint can be filed. Even in respect of cases where W.P.(C)Nos.28870/2012 & connected cases 12 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. ## 14. 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 the Court but compounding applications have been entertained W.P.(C)Nos.28870/2012 & connected cases **==> picture [13 x 9] intentionally omitted <==** 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. 15. In the above circumstances, this Court finds that petitioners herein are also entitled to have similar relief. It is ordered accordingly. The Writ Petitions are disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)Nos.28870/2012 & connected cases 14 W.P.(C)Nos.28870/2012 & connected cases 15 W.P.(C)Nos.28870/2012 & connected cases 16