Sajeer v. Sub Inspector of Police, Kothamangalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939** **WP(C).No. 19255 of 2015 (F)** **----------------------------** **PETITIONER(S):** **------------------------** **SAJEER, S/O.ALIYAR, PATTALAYIL HOUSE, CHERUVATTOR P.O., ERNAKULAM DISTRICT.** **BY ADVS.SRI.SALIM V.S., SRI.H.NUJUMUDEEN, SRI.P.V.JEEVESH, SRI.M.M.ANSAR.** **RESPONDENT(S):** **----------------------------** **SUB INSPECTOR OF POLICE, KOTHAMANGALAM, PIN- 686 691.** **BY SR. GOVT. PLEADER SRI.SUMAN CHAKRAVARTHY. ADV. SRI.HARISH VASUDEVAN (AMICUS CURIAE).** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2017, ALONG WITH WP(C).NO.19275 OF 2015 AND WP(C).NO.19292 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 19255 of 2015 (F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1: THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER'S VEHICLE. EXT.P2: THE TRUE COPY OF THE FIR. EXT.P3: THE TRUE COPY OF THE MAHASER. EXT.P4: TRUE COPY OF THE REPRESENTATION DATED 15.06.2015** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. “CR” ## **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). Nos.19255 [F], 19275[H] & 19292[J] of 2015** ## **---------------------------------Dated this the 31[st] day of October, 2017** ## **JUDGMENT** All the aforesaid cases relate to a seizure effected and crime registered on violation of the provisions of the Mines and Minerals (Development and Regulations) Act, 1957 [for brevity, the MMDR Act]. The petitioner in WP(C) No.19275 of 2015 is the registered owner of an LMV Excavator having registration No.KL-41-C-3383. One Ajith was the driver of the excavator. The petitioner in WP(C) No.19292 of 2015 is the registered owner-cum-driver of LGV Tipper bearing registration No.KL-41-6203. The petitioner in WP(C) No.19255 of 2015 is again the owner-cum-driver of the LGV Tipper bearing registration No.KL-40-A-4799. They were all _W.P(C). No.19255/2015 & con. Cases._ **2** involved in Crime No.998/2015 of the Kothamangalam Police Station, which was converted as CC No.885 of 2015 before the Judicial First Class Magistrate-I, Kothamangalam. 2. The petitioners were before this Court seeking release of their vehicles. At that time since the issue of compounding was pending consideration before this Court, interim orders were passed in all the above writ petitions on 26.06.2015 for release of the vehicles on deposit of Rs.50,000/- each and on surrendering the original Registration Certificate before the respondent. It is not clear as to what the petitioner in WP(C) No.19275 of 2015 did. 3. With respect to the petitioners in the other two writ petitions, who are the owner and driver of the respective vehicles, they took a short cut and approached the Judicial First Class Magistrate-I, Kothamangalam and pleaded guilty and also obtained release of the vehicles. The learned Senior Government Pleader brought the aforesaid fact to the notice of this Court and this Court called for a report from _W.P(C). No.19255/2015 & con. Cases._ **3** the Magistrate as to why the confiscation was not made under the MMDR Act by order dated 23.11.2016. The Magistrate reported that she was was not made aware of the orders passed by this Court directing release of the vehicles on payment of Rs.50,000/-. After the petitioners pleaded guilty, vehicles seized were also released on executing a bond of Rs.3 lakhs with solvent sureties. On directions being issued from this Court, the learned Magistrate has informed the Registrar [Subordinate Judiciary] by letter dated 04.01.2017, that the vehicles bearing Registration Nos.KL-41-6203 and KL-40-A-4799 were repossessed. 4. The learned counsel for the petitioners submits that the petitioners had pleaded guilty only since there was practice of releasing the vehicles. It is to be emphasised that this practice is against the specific provision for penalty as contained in the MMDR Act. The MMDR Act by Section 21 provides for penalties. Sub-section (1) provides for _W.P(C). No.19255/2015 & con. Cases._ **4** punishment of imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare. Sub-section (2) confers power on the rule making authority to prescribe such punishment for contravention of the Rules and in case of a continuing contravention impose additional fine extending to Rs.50,000/- for each day of continuance of contravention. Sub-section (3) provides the procedure by which a trespasser, who does so in contravention of the provisions of sub-section (1) of Section 4, is evicted. Sub-section (4) provides in the event of raising or transporting of any mineral without any lawful authority, for seizure of such mineral or tool, equipment, vehicle or any other thing used for such illegal extraction. Sub-section 4(A) relevant for the instant case, speaks of confiscation of the items seized, by an order of the Court competent to take cognizance of the offence under sub-section (1) and the disposal in accordance with the directions of such Court. _W.P(C). No.19255/2015 & con. Cases._ **5** 5. In the present case, the petitioners had come up before this Court specifically undertaking that they are ready to compound the offence and in such circumstance, the release of the vehicles were ordered on deposit of Rs.50,000/-. After agreeing to compound the offence and obtaining an order of release, the petitioners thought it fit to approach the Jurisdictional Magistrate to plead guilty; admittedly on the practice followed by the Magistrate, as argued by the learned counsel for the petitioner. The petitioners paid Rs.5,000/- as penalty for the offence and obtained release of the vehicles. It is also pertinent that the learned Magistrate had allowed release of the vehicles after closure of the proceedings on a bond of Rs.3 lakhs. 6. The learned Government Pleader in fact points out that the Magistrate had invoked Section 451 of the Code of Criminal Procedure, which could have been invoked only if the proceedings were pending. Section 451 speaks of interim arrangement for custody and disposal of property _W.P(C). No.19255/2015 & con. Cases._ **6** pending trial and in fact Section 452 ought to have been invoked which speaks of disposal of property after conclusion of trial. In the present case there need not be even invocation of Section 452, since there is a specific provision empowering the Magistrate, taking cognizance of the offence, to order confiscation on a finding of guilt being entered. Though Section 452 also provides for confiscation, here, the special statute itself; on conclusion of trial, provides for confiscation of the mineral, tool, equipment, vehicle or any other thing used in the commission of the offence. What is required hence is only a notice to the registered owner, if the driver alone has been implicated. In the present case, the owner of the vehicle was the driver also. Hence there is no question of any further notice being issued. 7. The petitioners in W.P.(C) Nos.19255/2015 and 19292/2015 voluntarily pleaded guilty before the Magistrate's court. In such circumstances, the learned _W.P(C). No.19255/2015 & con. Cases._ **7** Magistrate shall issue further notice to the petitioners and after hearing the petitioners consider confiscation as per sub section 21 (4A) which would be automatic in so far as the plea of guilt having been entered and the case having been closed. 8. The petitioners in both the writ petitions again were granted interim orders by this Court, for release of the vehicle on payment of Rs.50,000/-. The petitioners hence shall produce the vehicles bearing registration numbers KL41-C-3383 & KL-40A-4799 before the learned Magistrate within a period of two weeks from today. The learned Magistrate shall conclude the confiscation proceedings and shall dispose of the vehicle as it deems fit. The amount received shall be deposited to the Government. On such production of vehicle and the confiscation being carried out, the petitioners would be entitled to approach the authority before whom they deposited Rs.50,000/- as directed by this Court in the interim orders which will be refunded to the _W.P(C). No.19255/2015 & con. Cases._ **8** petitioners. If the vehicles are not produced steps shall be taken to realise the security bonds and in such circumstance there shall not be any refund of Rs.50,000/- paid in pursuance to the interim orders. 9. With respect to W.P.(C) No.19275/2015, the driver was one Ajith and it is seen that he has not pleaded guilty. The proceedings are pending before the Magistrate's court. The Magistrate's court shall conclude the proceedings and if the accused is found guilty, the registered owner shall be issued with notice and the confiscation considered. 10. In this context, it is to be noticed that there is no procedure prescribed under subsection (4A) of Section 21 as to how confiscation is to be carried out. In many of the cases alleging offences under the MMDR Act, the driver alone is made the accused. On a finding of guilt being entered as noticed herein above, subsection (4A) of Section 21 makes the confiscation automatic. The confiscation order however, prejudices the registered owner of the vehicle. In _W.P(C). No.19255/2015 & con. Cases._ **9** such circumstances despite there being no specific mandate for hearing, this Court has to insist upon an opportunity for hearing being afforded to the registered owner. There could be situations where the registered owner is not responsible for the act committed by the driver, for example, in cases of theft of vehicles which has already been registered prior to the confiscation. It is not to say that only in the cases of theft of vehicles the registered owner would be absolved of the liability. This Court has merely mentioned one instance which arose in the mind of this Court and definitely it would be for the Magistrate to decide as to whether the liability of confiscation can be avoided or not. Hence before the confiscation orders are passed under subsection (4A), definitely a hearing shall be afforded. This court in a similar situation were there was no hearing statutorily mandated; quoted two decisions of the Hon'ble Supreme Court in **Manvish Info Solutions Private Ltd., v. Employees Provident fund Organization (2017 (4) KLT 535)** which _W.P(C). No.19255/2015 & con. Cases._ **10** ## reads as follows **:** _Apposite here would be remembering Indira Nehru Gandhi v. Raj Narain (1975 Supp.SCC 1) and Mohinder Singh Gill v. Chief Election Commissioner ((1978) 1 SCC 405). In the former, K.K.Mathew. J held so:_ _“If the amending body really exercised judicial power, that power was exercised in violation of the principles of natural justice of audi alteram partem. Even if a power is given to a body without specifying that the rules of natural justice should be observed in exercising it, the nature of the power would call for its observance.” (para 303)._ _In the latter V.R.Krishna Iyer, J., following Mathew. J. held so:_ _“Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has, many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adam-and of Kautilya's Arthasastra-the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foilage are noble and not newfangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.” (para 43)._ _It was also held so in paragraph 77:_ _We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the Rules and inferentially where it has not specificated it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and_ _W.P(C). No.19255/2015 & con. Cases._ **11** _where some direct consequence on candidates emanates from its exercise we must read this functional obligation.”_ Accordingly, the writ petitions are disposed of declaring that before a confiscation is effected under Section 21 (4A) the Court should issue notice to the registered owner and then consider the question of confiscation. Sd/- **K.VINOD CHANDRAN, JUDGE.** al/1.11.2017 True copy P.S to Judge _W.P(C). No.19255/2015 & con. Cases._ **12** CORRECTED AND COPIED FROM PENDRIVE.