Shameer v. Geologist Department of Mining and Geology and The Sub Inspector of Police, Tirurangadi Police Station, Malappuram District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942** ## **WP(C).No.10280 OF 2020(H)** ## **PETITIONER:** **SHAMEER AGED 35 YEARS S/O. MUHAMMED, MELEVEETIL THANERANGAL HOUSE, VALLIKUNNU NORTH P.O. MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS:** **1 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, MANJERI, MALAPPURAM DISTRICT 676 121. 2 THE SUB INSPECTOR OF POLICE, TIRURANGADI POLICE STATION, MALAPPURAM DISTRICT 676 306.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10280 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.10280 of 2020** **===========================** Dated this the 26[th] day of May, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - _“i)Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to release the Excavator/JCB bearing registration No.KL-53B/350 to the petitioner forthwith;_ - _ii)Declare that the seizure of the excavator/JCB owned by the petitioner by the 2[nd] respondent is perse illegal on the basis of the averments set out in Exhibit P1 seizure mahazar;_ - _iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Smt.Smitha Babu, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. Smt.Smitha Babu, learned counsel appearing for the petitioner has made submissions in tune with the pleadings in the W.P(C). It is pointed out that the impugned seizure of the petitioner’s vehicle (JCB) has been effected as early as on 10.10.2019 and the allegations are only to the effect that the said vehicle (JCB) has been used for levelling the property having an extent of hardly 5 cents and that there are no allegations W.P(C) No.10280 of 2020 3 whatsoever that anyone has thereafter transported such soil from the property to another place. Further that the act of mere levelling of a land is permissible and that the respondents do not have any case in the seizure mahazar that the subject property has been classified as Nilam or Wetland and that provisions of any other law has been violated or that the act alleged in the seizure would even remotely amount to quarrying of the soil, etc. Further it is also pertinently submitted by the learned counsel for the petitioner that to the best of his knowledge, the competent official concerned (District Geologist) has not filed any complaint or report before the jurisdictional Magistrate’s Court concerned alleging contravention of the provisions of the Mines and Minerals (Development & Regulation) Act, 1957 or the provisions contained in the Kerala Minor Mineral Concession Rules, 2015 framed under the abovesaid Act. In these circumstances, it is strongly urged by Smt.Smitha Babu, learned counsel appearing for the petitioner that this Court may pass an order directing the 1[st] respondentDistrict Geologist to grant interim custody of the vehicle to the petitioner subject to the petitioner executing a bond, etc. 4. Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents has opposed the plea and has pointed out that at best this Court may consider issuing directions in the light of the W.P(C) No.10280 of 2020 4 legal principles laid down by the Full Bench of this Court in the case in _**Prakash Nayak v. District Collector**_ [2016 (4) KLT 102 (FB)] which has dealt with such scenarios involving contravention of the provisions of the Mines and Minerals (Development & Regulation) Act, etc. To a specific query, as to whether the complaint as envisaged in the provisions in the Mines and Minerals (Development & Regulation) Act has been filed by the 1[st] respondent-District Geologist before the jurisdictional Magistrate’s Court concerned, the learned Government Pleader would submit that he has no specific factual instructions on those aspects. 5. The Full Bench of this Court in the case in _**Prakash Nayak v. District Collector**_ [2016 (4) KLT 102 (FB)] has held as follows in paragraph No.27 thereof : _“The general powers of the police for arrest and seizure under the Code of Criminal Procedure are not specifically ousted or excluded by any of the provisions of the MMDR Act. On the other hand the offence punishable under Section 21 is made specifically cognizable also. That the offence is made cognizable means that any police officer, competent and empowered to act under the Code of Criminal Procedure, is competent to make arrest and to make seizure of properties, but prosecution can be launched only by the persons authorised by the Government under Section 22 of the MMDR Act. Contraband articles including minerals are liable to confiscation by court orders under sub-section (4A) of Section 21 of the MMDR Act. The latter part of the sub-section provides that the property shall be disposed of in accordance with the directions of such court. This means that appropriate orders including confiscation orders can be passed by the court having jurisdiction to take cognizance of an offence punishable under sub-section (1) of Section 21, on a complaint brought by any officer authorised under Section 22 of the MMDR Act. Appropriate orders meant under sub-Section (4A) will include even_ W.P(C) No.10280 of 2020 5 _interim orders authorizing interim custody under Section 451 of the Code of Criminal Procedure. The object of sub-section (4A) of Section 21 is not that the property seized under sub-section (4) shall be liable to confiscation in all situations. What we find on an analysis of the various provisions is that confiscation of properties is authorised under subsection (4A), by orders of the court having jurisdiction. However the court is competent to pass appropriate orders, for disposal of the properties. In appropriate cases where the facts and situations are of extreme violation confiscation will have to be ordered by the court. However, in the case of minerals illicitly transported or imported, confiscation must be the rule. But in the case of vehicles and other articles, appropriate orders including confiscation orders can be passed by the court having jurisdiction, and such properties can be appropriately dealt with.”_ 6. Taking note of the facts and circumstances of the case and also the directions issued by this Court in similar cases following the legal principles laid down by the Full Bench of this Court in **Prakash Nayak’s case** (supra) [2016 (4) KLT 102 (FB)], the following directions and orders are passed : - (i) In case, the 1[st] respondent-District Geologist has already filed - the requisite complaint before the jurisdictional Magistrate's Court concerned in terms of the provisions contained in the Mines and Minerals (Development & Regulation) Act and the Rules framed thereunder, then the 1[st] respondent will immediately inform the petitioner about the factum of such filing of complaint and as to when the complaint was filed and before which Court, etc. - (ii) In case, the 1[st] respondent-District Geologist has not so far W.P(C) No.10280 of 2020 6 filed any such complaint, then the 1[st] respondent may file such complaint before the jurisdictional Magistrate's Court concerned within 10 days from the date of receipt of a certified copy of this judgment. Thereupon, the 1[st] respondent should also immediately inform the petitioner by registered post about the factum of filing of such complaint and as to when the complaint was filed and before which Court. - (iii) If complaint has been so filed, then the petitioner may immediately approach the jurisdictional Magistrate's Court concerned and may file appropriate application seeking for grant of interim release/interim custody of the vehicle, which shall then be considered by the jurisdictional Magistrate's Court concerned and orders may be passed thereon. In that regard, the learned Magistrate will examine the allegations raised in the seizure mahazar and the complaint and may also have specific reference to the abovesaid contentions raised by the petitioner that the allegations in the seizure does not disclose any offence, etc. The learned Magistrate may pass orders on the said plea for grant of interim custody of the W.P(C) No.10280 of 2020 7 vehicle, subject to appropriate conditions as may be just, fair and proper. - (iv) If on the other hand, the District Geologist has not filed any complaint as on today and also does not avail the abovesaid opportunity to file the complaint within 10 days from the date of receipt of a certified copy of this judgment, etc., then the petitioner may straight away approach the 1[st] respondentDistrict Geologist for grant of interim release of the vehicle, upon which the 1[st] respondent shall grant interim release of the vehicle to the petitioner, subject to the petitioner executing a simple bond and also filing an affidavit or undertaking that he shall ensure that the vehicle shall not be used for commission of any offence and that he will not alienate or transfer the vehicle during the currency of the proceedings, etc. 7. It is made clear that this Court has not considered the legality of the proceedings initiated against the petitioner and all contentions in that regard are left open and the petitioner will be at liberty to seek any appropriate remedies in that regard for quashment of the impugned proceedings, if he is so advised and in the manner known to law. W.P(C) No.10280 of 2020 8 8. The petitioner will produce copy of the Memorandum of this W.P(C) along with a certified copy of this judgment before the 1[st] respondent-District Geologist, for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of . **Sd/ALEXANDER THOMAS JUDGE** vgd W.P(C) No.10280 of 2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SEIZURE MAHAZAR PREPARED BY THE 2ND RESPONDENT DATED 10.10.2019.**