Pradeep v. Additional Sub-Inspector of Police, Nooranad Police Station, Alappuzha District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935** ## **WP(C).No. 10887 of 2013 (I)** **--------------------------------------** **PETITIONER:** **-------------------** **PRADEEP, S/O. PRABHAKARAN,AGED 35 YEARS, ALINKAL, VAKKATHIL, VALLIKKUNNAM P.O., VALLIKKUNNAM VILLAGE, NOORANAD TALUK,ALAPPUZHA DISTRICT, (OWNER OF TIPPER LORRIES BEARING REGISTRATION NO. KL-31-D-4500 AND KL-36-7696 AND A J.C.B BEARING REGISTRATION NO. KL-31-D-9369).** **BY ADV. SRI.P.M.ZIRAJ.** **RESPONDENT:** **---------------------** **THE ADDITIONAL SUB INSPECTOR OF POLICE, NOORANAD POLICE STATION, ALAPPUZHA DISTRICT, PIN-688 011.** **BY SR. GOVERNMENT PLEADER SRI. S. JAMAL.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C). NO.10887/2013-I:** ## **APPENDIX** ## **PETITIONER'S EXHIBIT:** **EXHIBIT P1TRUE COPY OF SEIZURE MAHASAR DATED 11-4-2013 PREPARED BY THE RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 10887 of 2013 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 12[th] day of April, 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 the respondent to release the vehicle of the petitioner unconditionally since the seizure is illegal. 2. Declare that the respondent is not an authority under the Kerala Minor Mineral Concession Rules 1967 or Mines and Mineral (Development and Regulation) Act, 1957 and hence the seizure is illegal. 3. Direct the respondent to receive and consider the application to compound the offence against the petitioner and thereby give an opportunity to the petitioner for compounding alleged offence under section 60 (A) (1) of the Kerala Miner Mineral Concession Rules 1967 4. 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 factual particulars in this case are tabulated for convenience, as given below. _W.P.(C) No.10887 of 2013_ : 2 : |Name of the Petitioner|Vehicle No.||Seized By| |---|---|---|---| |Pradeep|Tipper lorries bearing<br>Nos. KL 31 D 4500 &<br>KL 36 7696<br>JCB bearing No. KL 31<br>D 9369|Addl. S. I. Of<br>Police,<br>Noornad P.S.|| 3. Heard the learned Government Pleader as well. 4. 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 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 _W.P.(C) No.10887 of 2013_ : 3 : to two years, or with fine which may extend to twentyfive 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.” 5. 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 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 ## _W.P.(C) No.10887 of 2013_ : 4 : ## made thereunder.” 6. 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 a fine of 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].** ## _W.P.(C) No.10887 of 2013_ : 5 : 7. 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 _W.P.(C) No.10887 of 2013_ : 6 : 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 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. 8. The issue involved in this case was considered by 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 **[Digil Vs. S.I. of Police (2013 (1) KLT 600)]** , it was held in paragraph 24 that, once the offences are compounded, no further proceedings for confiscation of the vehicle can be sustained. The observation made by the learned Judge in _W.P.(C) No.10887 of 2013_ : 7 : ## 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 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 ## _W.P.(C) No.10887 of 2013_ : 8 : proceedings. ## 9. 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 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 _W.P.(C) No.10887 of 2013_ : 9 : enjoined by law. 10. In the above circumstances, this Court finds that the petitioner herein is also entitled to have similar relief. It is ordered accordingly. The Writ Petition is disposed of. Sd/- **P. R. RAMACHANDRA MENON, (JUDGE)** kmd