ROJISH N. v. Sub Collector (Revenue Divisional Officer), Kasaragod, and Sub Inspector of Police, Hosdurg Police Station

## **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. 9118 of 2014 (L)** **---------------------------** **PETITIONERS:** **--------------------------** **ROJISH.N, AGED 39 YEARS S/O JAYARAJ, ROSHNI, KANDAMKUNNU NEERVELI P.O, THALASSERY, KANNUR DISTRICT - 670701, REPRESENTED BY POWER OF ATTORNEY HOLDER ROJITH.N S/O JAYARAJ, ROSHIN, KUNDAMKUNNUR NEERVELI P.O THALASSERRY KANNUR** **BY ADV. SRI.I.V.PRAMOD** **RESPONDENT(S):** **----------------------------** ## **1. SUB COLLECTOR (REVENUE DIVISIONAL OFFICER), KASARAGOD AT KANHANGAD, KASARAGOD DISTRICT 671315** ## **2. SUB INSPECTOR OFPOLIE,** - **HOSDURG POLICE STATION , POST KANHANGAD KASARAGOD DISTRICT 671315** **R BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-042014, ALONG WITH WPC. 9160/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9118 of 2014 (L)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1: TRUE COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION KA 1 AA 1407** - **EXHIBIT P2 : TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE JOJISH IN FAVOUR OF THE PETITIONER DATED 22-07-2010** - **EXHIBIT P3: TRUE COPY OF THE BILL ISSUED BY WE CARE MANUFACTURING TRADING COM. MANGALORE DATED 14-03-2014** - **EXHIBIT P4 TRUE COPY OF THE VALUE ADDED TAX REGISTRATION CERTIFICATE OF WE CARE MANUFACTURING TRADING COM. MANGALORE** - **EXHIBIT P5: TRUE COPY E- SUGAM FORM BEARING SERIAL NO 12021549480 DATED 14-03-2014** - **EXHIBIT P6: TRUE COPY OF THE BILL ISSUED BY BRQ ENTERPRISES, DATED 14-03-2014** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **//TRUE COPY//** **PA TO JUDGE** **ALEXANDER THOMAS, J. --------------------------------W.P.(C) No.9118 & 9160 OF 2014 --------------------------------Dated this the 8[th] day of April, 2014** **J U D G M E N T ~~~~~~~~~~~** ## W.P.(C) No.9118 OF 2014 The case of the petitioner is that he had purchased a load of mortar (320 bags) from M/s. BRQ Enterprises, Uppala, who in turn is stated to have purchased the load from a dealer at Mangalore. The grievance projected by the petitioner herein is that on 14.3.2014, a lorry bearing Reg.No. KA – 1AA 1407, in which the consignment was taken by him, was intercepted by the 2[nd] respondent Sub Inspector of Police, Hosdurg Police Station, Kasaragod District and that a crime has been registered as Crime No.336/2014 of Hosdurg Police Station for offence punishable under Section 20 of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. According to the petitioner, he produced all the documents before the 2[nd] respondent Sub Inspector of Police, Hosdurg to establish that the load in the above said vehicle is not river sand collected from any of the rivers in Kerala but that it is mortar purchased from the State of Karnataka with bill and that the same was W.P.(C) Nos.9118 &9160/2014 2 transported through Kerala for his own use after paying the sales tax and that the 2[nd] respondent Sub Inspector of Police did not release the vehicle but reported the seizure to the 1[st] respondent Revenue Divisional Officer (Sub Collector), Kasargod. It is contention of the petitioner that the above vehicle cannot be proceeded against under the above Act of 2001. In the light of the above said facts and circumstances, the petitioner has instituted the above Writ Petition (C) with the following prayers: “i) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents No.1 and 2 to release the vehicle bearing registration KA 1AA 1407 to the petitioner, forthwith unconditionally. ii) To declare that the respondents No. 1 and 2 are not having any power to continue with the proceedings against the petitioner or the vehicle bearing registration No. KA 1AA 1407.” 2. Heard Sri.I.V.Pramod, learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 3 W.P.(C) Nos.9118 &9160/2014 3. After hearing both sides, this Court is of the considered opinion that the proceedings shall be finalised after obtaining the analysis report of the sand tested in a competent laboratory. In view of this aspect, the 1[st] respondent Revenue Divisional Officer (Sub Collector), Kanhangad is directed to consider the claim of the petitioner for granting interim custody of the vehicle to the petitioner within two weeks from the date of production of the certified copy of this judgment, subject to the satisfaction of the conditions laid down by the Full Bench of this Court in the case between **Shan C.T. v. State of Kerala** reported in 2010(3) KHC 333 =2013(3) KLT 413 and with further direction for final adjudication proceedings shall be completed within six weeks thereafter. The Full Bench of this Court in **Shan C.T. v. State of Kerala** reported in 2013(3) KLT 413 have issued the following directions in paragraphs 12 and 13, which reads as follows: “12. Having regard to the facts and circumstances of the case, we are of the opinion that interim custody of the vehicle can be granted 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 W.P.(C) Nos.9118 &9160/2014 4 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 vehicle. The amount so deposited and the security furnished would follow the final outcome of the confiscation proceedings. 13. We also deem it appropriate to direct that the proceedings under S.23 of the above mentioned Act confiscating the vehicle shall be concluded within six weeks from the date of seizure of the vehicle as far as possible, in which case the need to consider the interim custody of the vehicle may not normally arise. But if for any reason the authorities under the Act are not able to conclude the proceedings within the period of six weeks mentioned above, the interim custody of the vehicle shall be given to the owner on the conditions specified earlier. It is also made clear that to avoid any controversy and the allegations of undue delay on the part of either party to the proceedings, the competent authority shall put the owner on notice within a period of three days of the date of seizure and the owner or any other person interested in the vehicle shall file his objections to the confiscation within a week thereafter.” **4.** In the circumstances, it is directed that the interim custody of the vehicle shall be given to the petitioner by the 1[st] respondent on condition that the petitioner/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 W.P.(C) Nos.9118 &9160/2014 5 condition that the petitioner/owner of the vehicle should provide either a bank guarantee or immovable property security for the balance of the value of the vehicle and the amount so deposited and the security so furnished would follow the final outcome of the confiscation proceedings. The issue regarding the interim custody of the vehicle shall be decided by the 1[st] respondent Sub Collector, (Revenue Divisional Officer), Kanhangad within two weeks from the date of production of a certified copy of this judgment as already directed above. It is further directed that the finalisation of the adjudication proceedings as contemplated under Section 23 of the above mentioned Act should be expedited and concluded within six weeks thereafter. It is further made clear that on final adjudication, if it is proved that the petitioner was transporting river sand in contravention of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, then prosecution proceedings shall be pursued within six weeks thereafter in accordance with the law declared by the Division Bench of this Court in the case between **Sujith v. State of Kerala** reported in 2012(2) KLT 547. The petitioner shall produce a certified W.P.(C) Nos.9118 &9160/2014 6 copy of this judgment along with a copy of this Writ Petition before the 1[st] respondent for further steps in the matter of compliance of the above said directions. 5. With above said observations and directions, this Writ Petition (C) stands finally disposed of. ## W.P.(C) No.9160 OF 2014: 6. From the averments and contentions raised in this Writ Petition it appears that the matter is broadly similar to the matter in W.P.(C) No.9118/2014. The prayers in this Writ Petition read as follows: “i) Issue a writ of mandamus or any other writ, order or direction commanding abnd compelling the respondents No. 1 & 2 to release the vehicle bearing registration TN 75 A 6584 with the consignment to the petitioners forthwith unconditionally. ii) To declare that the respondents No. 1 & 2 are not having any power to continue with the proceedings against the vehicle bearing registration No. TN 75 A 6584.” W.P.(C) Nos.9118 &9160/2014 7 7. The directions and orders issued in the judgment in W.P.(C) 9118/2014 based on the directions of the Full Bench in **Shan C.T. v. State of Kerala** reported in 2013(3) KLT 413 shall govern this case also. 8. Accordingly, it is directed that the interim custody of the vehicle shall be granted to the petitioner on condition that the petitioner/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 petitioner/owner of the vehicle should provide either a bank guarantee or immovable property security for the balance of the value of the vehicle and the amount so deposited and the security so furnished would follow the final outcome of the confiscation proceedings. The issue regarding the interim custody of the vehicle shall be decided by the 1[st] respondent Sub Collector, (Revenue Divisional Officer), Kanhangad within two weeks from the date of production of a certified copy of this judgment. It is further directed that the proceedings contemplated under Section 23 of the above said Act of 2001 shall be expeditiously concluded within a period of six weeks thereafter. It is further made clear W.P.(C) Nos.9118 &9160/2014 8 that on final adjudication, if it is proved that the petitioner was transporting river sand in contravention of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, then prosecution proceedings shall be pursued within six weeks thereafter in accordance with the law declared by the Division Bench of this Court in the case between **Sujith v. State of Kerala** reported in 2012(2) KLT 547. With above said observations and directions, this Writ Petition (C) stands finally disposed of. ## **SD/-** **ALEXANDER THOMAS, JUDGE.** ps/20/5/2014