Rajesh v. Sub Inspector of Police, Cherppu Police Station, Thrissur District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936** **WP(C).No. 9501 of 2014 (K) ---------------------------** ## **PETITIONER :** **----------** **RAJESH, AGED 43 YEARS S/O.SHOOLAPANY, VALLOOKKATTIL PUTHENPEEDIKA P.O., ANTHIKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT (OWNER OF TWO LORRIES BEARING REGISTRATION NO.KL-8-Y-5117 KL-8-AF-2346 AND A JCB BEARINGREGISTRATION NO.KL-8-AL-6931).** **BY ADV. SRI.P.M.ZIRAJ** **RESPONDENT :** **----------** **THE SUB INSPECTOR OF POLICE, CHERPPU POLICE STATION THRISSUR DISTRICT PIN - 680001** **BY GOVERNMENT PLEADER MR.K.C. VINCENT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-04-2014 ALONG WITH WP(C)NO.10438/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** **WP(C).No. 9501 of 2014 (K) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P-1: TRUE COPY OF THE WRITTEN REQUEST SUBMITTED BY THE PETITIONER DATED 25.3.2014 BEFORE THE RESPONDENT RESPONDENT(S)' EXHIBITS : NIL.** **----------------------//TRUE COPY//** **P.S. TO JUDGE** ## **BP** ## ALEXANDER THOMAS, J. ================== W.P.(C).Nos.9501, 10438, 10451, 10452, 10453, 10454, 10455, 10496, 10497, 10505, 10537 & 10538 of 2014 ================== Dated this the 8[th] day of May, 2014 J U D G M E N T Heard Sri.P.M.Ziraj, learned counsel for the petitioners and the learned Government Pleader appearing for the respondents. 2. The prayers in all these Writ Petitions are broadly similar in nature and relate to consideration of the request for compounding of the offences arising out of the alleged violation of the provisions of the Mines and Minerals (Development and Regulation) Act [MMDR Act] and the Kerala Minor Mineral Concession Rules [KMMC Rules] framed thereunder. The case of the petitioners is that they have not used the vehicles in contravention of the relevant provisions of the above said Act and the above said Rules in question and that the action of the respondent authorities in seizing their vehicles for alleged violation of the provisions of the above said Act and Rules are unlawful and ultra vires. However, they would submit that they are prepared to compound the offences in question in view of the W.P.C.9501/14 etc. - : 2 :- specific provisions made available in Section 23A of the MMDR Act and Rule 60A of the KMMC Rules, which expressly enable the accused parties to have the offences compounded. The question whether the prosecution proceedings could be pursued further, once the offence is compounded in accordance with the relevant provisions of the MMDR Act and KMMC Rules has been considered in detail by this Court in the case between **Digil v. Sub Inspector of Police** reported in 2013 (1) KLT 600, wherein it has been held that once the offence is compounded, then there cannot be further prosecution proceedings. The directions given by this Court in **Digil's case** are as follows: “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 enjoined by law.” W.P.C.9501/14 etc. - : 3 :- 3. As to the question regarding the extent of the amount to be satisfied as compounding fee, the Rules expressly stipulate that any offence under the Rules can be compounded subject to the satisfaction of the maximum fine prescribed under the Rules, which is stipulated as Rs.5,000/-. But in respect of transportation of sand/earth without any valid pass/sanction, the same is stipulated as an offence under the above said Act itself by virtue of Section 4(1A) of the above said Act, for which separate penalty is provided under the said Act itself and the maximum fine in respect of such offence prescribed under the Act is stipulated as Rs. 25,000/-. This Court in the judgment dated 20.3.2014 in W.P. (C).No.8006/2014, as per the judgment dated 3.4.2014 in W.P. (C).No. 9086/2014, as per the judgment dated 27.3.2014 in W.P. (C).No. 8924/2014 and in many other cases, has passed directions for compounding of the offences in view of the above said directions in **Digil's case** reported in 2013 (1) KLT 600. The judgment dated 3.4.2014 of this Court in W.P.(C).No. 9806/2014 reads as follows: “The petitioner is eager and willing to have the offence registered under the Mines and Minerals (Regulation of Development) Act, 1957 for compounding. The application for compounding the offence shall be filed before the competent authority - first respondent. The offence shall also be permitted to be compounded on payment of the compounding fee of W.P.C.9501/14 etc. - : 4 :- Rs. 25,000/- (Rupees Twenty five thousand only) in respect of the vehicle. Needless to say that no prosecution shall be initiated when the offence in respect of the incident has been compounded. The vehicle shall also be released to the petitioner after the payment of the compounding fee.” 4. In the light of the consistent directions issued by this Court in various judgments in similar situations, it is ordered that in case the offences alleged against the petitioners herein are solely arising out of the alleged violation of the provisions of the MMDR Act and the KMMC Rules, then the applications of the petitioners, if already submitted for compounding the offences should be immediately taken up for consideration by the respondent authority concerned in each of these cases and on the petitioners paying compounding fee of Rs.25,000/-, the offences shall be compounded forthwith and the custody of the vehicle concerned shall be given to the petitioner concerned forthwith. In such situation, it is further ordered that once the offence is compounded, then no prosecution proceedings shall be pursued against the petitioner concerned. In case any of the petitioners have not yet filed formal applications for compounding, then they may do so and submit such application before the competent authority concerned along with a certified copy of this judgment, in which case, the aforesaid directions for W.P.C.9501/14 etc. - : 5 :- compounding of offence shall be extended to them also and must be complied with forthwith by the respondent authority concerned. It is made clear that these directions issued for compliance are only in cases where the offences alleged against the petitioners are solely arising out of the alleged violation of the MMDR Act and KMMC Rules. 5. If the offences against in any of these cases involve the alleged violation of the provisions of the the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2002, then the question of interim release of the vehicle concerned shall be considered by the competent authority in the light of the specific directions issued by the Full Bench of this Court in the case between **Shan.C.T. v. State of Kerala** reported in 2010 (3) KLT 413. In such a situation involving the alleged violation of the River Sand Act, then the competent authority shall grant interim custody of the vehicle on condition that the owner of the vehicle deposits 30% of the value of the vehicle as determined by the appropriate authority under the Motor Vehicles Act in cash and a further condition that the owner of the vehicle should provide either a bank guarantee or immovable property security for the balance of the value of the W.P.C.9501/14 etc. - : 6 :- vehicle and the amount so deposited and the security so furnished would follow the final outcome of the confiscation proceedings. In such situation involving alleged violation of River Sand Act, then the question of interim custody as directed herein, shall be decided by the competent authority within two weeks from the date of production of the certified copy of this judgment. It is further directed that the finalisation of the proceedings contemplated under Section 23 of the the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2002 shall be expeditiously completed within six weeks thereafter. With the aforesaid directions and orders, the Writ Petitions (Civil) stand finally disposed of. sdk+ Sd/ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge W.P.C.9501/14 etc. - : 7 :- 4. From Ext.P1 produced in W.P.(C).No. 9574/2014 it is seen that there is an averment in that mahazar regarding the Kerala Conservation of Paddy Land and Wet Land Act, 2008. If, as a matter of fact, the offences alleged in respect of the vehicle involved in W.P.(C).No. 9574/2014 are not pertaining to the MMDR Act/KMMC Rules, but is in relation to the Kerala Conservation of Paddy Land and Wet Land Act, 2008, then the competent authority shall consider the question of interim release of that vehicle on the petitioner in W.P.(C).No.9574/2014 furnishing security as stipulated in the provisions of the said Act of 2008. Before taking a decision in such case, the respondent District Collector/competent authority concerned shall ascertain within two weeks as to whether the land in question is classified as paddy land or wet land in the data bank. It is accordingly ordered that in such a case, if it is found that the land in question is not included as a paddy land or wet land in the data bank, then the petitioners in such cases can seek compounding of the alleged offence as per the provisions of the MMDR Act and the KMMC Rules, in which case, the application for compounding shall be considered and granted as per the W.P.C.9501/14 etc. - : 8 :- provisions of the KMMC Rules and in the light of the various rulings of this Court referred to above as in **Digil's case** reported in 2013(1) KLT 600 and as directed hereinabove.