Midhun P v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2016-12-17
Court Decision / Holding: Petition allowed; Annexure-A1 FIR and all further proceedings pursuant thereto against the petitioner are quashed. The vehicle and sand shall be released forthwith.
Final Disposition: Petition allowed; FIR and proceedings quashed; vehicle and sand released

Parties to the Case

Appellants / Petitioners

Midhun P

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Viju Abraham
• Sri Jaishankar V. Nair
• Sri Albert V. John
• Sri/SmT. Roshni Manuel

Counsels for Respondents

• Public Prosecutor, Sri T.R. Renjith

Case Synopsis & Summary

This Kerala High Court criminal miscellaneous case concerns Midhun P, the accused in Crime No. 432/2016 of Ambalathara Police Station, pending under Section 379 IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The petition under Section 482 CrPC seeks to quash the FIR and the prosecution on the grounds that the sand loaded on a lorry, seized in October 2016, was not Kerala river sand but imported sand from Odisha, supported by documentary annexures including transit passes, invoices, tax receipts, and a delivery note. The petitioner contends that there is a state policy to encourage sand imports to meet construction needs, and that the Full Bench decision in Prakash Nayak v. District Collector, Kasaragod and Others (2016) 40 KHC 915, holds that sand imported from other states cannot be governed by Kerala’s Sand Act. The Public Prosecutor acknowledged the transit pass authenticity and cross-checks by the geologist and tax authorities. The court, after evaluating the materials, found that the sand was indeed imported from Odisha, and therefore the prosecution under IPC Sec. 379 and Act 18 of 2001 could not be sustained. Consequently, the petition is allowed and the FIR and proceedings are quashed, with release of the vehicle and sand.

Provisions of Law Cited

Section 482 of the Code of Criminal ProcedureSection 379 of the Indian Penal CodeSection 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Act 18 of 2001)

Legal Doctrines & Maxims

Abuse of process of court

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the sand originally imported from Odisha, evidenced by Annexures A2–A6, is not subject to Kerala’s Sand Act. They rely on the policy of permitting imports to meet construction demand and cite Prakash Nayak v. District Collector, Kasaragod and Others (2016) 40 KHC 915, arguing that sand brought from other states cannot be governed by the Sand Act. They urge quashing of the FIR and proceedings as an abuse of process given the documentary support for import and the authenticity of the transit pass.

Contentions of Respondents

The respondents defend the prosecution by asserting the authenticity of the transit pass and cross-verifications by a Geologist and the Commercial Tax Department, indicating the vehicle carried imported sand. They contend the case rests on the facts that require application of the Sand Act and IPC provisions, justifying continued proceedings unless documentary evidence unequivocally proves non-Kerala sand.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Prakash Nayak v. District Collector, Kasaragod and Others	2016(40 KHC 915)	Mentioned Only	The decision was cited by counsel to argue a point about Sand Act applicability to imported sand; however, the judgment itself rests on other documentary evidence and does not apply this principle as its decisive basis.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938** ## **Crl.MC.No. 7578 of 2016 () ---------------------------** ## **CRIME NO. 432/2016 OF AMBALATHARA POLICE STATION , KASARGOD** **PETITIONER/ACCUSED :** ## **----------------------** **MIDHUN P AGED 25, S/O. MOHANAN, MIDHUN NIVAS, AMBILAD, KUTHUPARAMBA P.O., THALASSERY, KANNUR.** **BY ADVS.SRI.VIJU ABRAHAM SRI.JAISHANKAR V.NAIR SRI.ALBERT V.JOHN SMT.ROSHNI MANUEL** ## **RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI.T.R.RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 7578 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ----------------------ANNEXURE A1 CERTIFIED COPY OF FIR IN CRIME NO.432/2016 OF AMBALATHARA POLICE STATION. ANNEXURE A2 COPY OF THE INVOICE NO.72 DATED 16.10.2016. ANNEXURE A3 COPY OF TRANSIT PASS BEARING NO.3490 DATED 16.10.2016 ISSUED BY THE REVENUE DEPARTMENT, GOVERNMENT OF ODISHA. ANNEXURE A4 COPY OF THE ADVANCE TAX UTILIZATION RECEIPT DATED 24.10.2016. ANNEXURE A5 COPY OF THE FORM-15 DELIVERY NOTE DATED 24.10.2016. ANNEXURE A6 COPY OF THE CERTIFICATE DATED 26.10.2016 ISSUED BY COMMERCIAL TAXES DEPARTMENT. ANNEXURE A7 COPY OF THE GOVERNMENT ORDER DATED 14.12.2009. ANNEXURE A8 COPY OF THE CIRCULAR BEARING NO.58289/P3/2010/REVENUE, DATED 11.11.2010. ANNEXURE A9 COPY OF THE JUDGMENT IN WPC NO.25313/2015. ANNEXURE A10 COPY OF THE ORDER IN CRL.MC NO.5246/2016. ANNEXURE A11 COPY OF THE ORDER IN CRL.MC NO.5824/2016. RESPONDENT(S)' ANNEXURES -----------------------** ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.7578 of 2016** **----------------------------------------Dated this the 17th day of December, 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 accused in Crime No.432 of 2016 of Ambalathara Police Station registered for offences punishable under Section 379 of the IPC and under Section 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 25.10.2016 at 4.30 a.m., the Sub Inspector of Police, Ambalathara Police Station intercepted a Lorry bearing Reg.No.KA-19-AB-853 driven by the petitioner and on inspection, the vehicle was found loaded with sand. Under the strong premise that Crl.M.C.7578/2016 2 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 public interest considering the huge requirement of sand Crl.M.C.7578/2016 3 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-A2 invoice, Annexure-A3 transit pass, Annexure-A4 Advance Tax Utilisation Receipt, AnnexureA5-Form-15 delivery note, Annexure-A6 certificate issued by the Commercial Tax Department, B Manjeswara Check Post, 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(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 4 Crl.M.C.7578/2016 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.The learned Public Prosecutor on instructions submitted that the authenticity of Annexure-A3 transit pass produced by the petitioner was ascertained. A communication has been issued to the Geologist, Kasaragod by the Tahsildar, Kishan Nagar wherein it is mentioned that the transit pass which is produced is genuine and that has been issued to the licensee Sri.Umakanata Nayak of Bankal Mahanadi Sand Quarry. It is also mentioned that it is duly authenticated by the Tahsildar, Kishannagar. The fact that the transit pass is genuine has been reported by the Geologist, Kasaragod as well by communication dated 9.12.2016 vide DOK/1696/M/2016. Further more, the Commercial Tax Authorities have reported that the 5 Crl.M.C.7578/2016 vehicle had crossed the Bangara Manjeswara Check post on 25.10.2016 immediately prior to the seizure. - 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 20 of Act 18 of 2001 cannot be sustained. In the result, this petition is allowed and Annexure-A1 FIR and all further proceedings pursuant thereto against the petitioner are quashed. The vehicle as well as the sand shall be released forthwith. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps Crl.M.C.7578/2016 6