Vinod C.K. and C.K. Abdul Rahiman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934** ## **Crl.MC.No. 232 of 2013** **--------------------------------** **PETITIONERS:** **---------------------** **1. VINOD C.K., S/O.KUMARAN,AGED 29 YEARS, CHUNDAPARAMBIL HOUSE,KALIKAVU, KOTTAI VILLAGE, PALAKKAD, (DRIVER OF LORRY BEARING KALIKAVU, KOTTAI VILLAGE, PALAKKAD,(DRIVER OF LORRY BEARING REGISTRATION NO.KL-9-P-9083).** **2. C.K.ABDUL RAHIMAN, AGED 38 YEARS, S/O.KABEER,PANIKUKLAM HOUSE,KUATHANOOR.P.O, PALAKKAD (OWNER OF LORRY BEARING REGISTRATION NO.KL-9-P-9083).** **BY ADV. SRI.P.M.ZIRAJ.** **RESPONDENT:** - **----------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM, THROUGH THE SUB INSPECTOR OF POLICE, KOTTAYI POLICE STATION,PALAKKAD DISTRICT,PIN-678 572.** **BY ADDL. D.G.P. SRI. K.I. ABDUL RASHEED.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-01-2013, ALONG WITH CRL.M.C. NO.233/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C.NO.232/2013:** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEXURE-I: COPY OF THE MAHASAR DTD 26/12/2012 PREPARED BY THE SUB INSPECTOR OF POLICE, KOTTAYI POLICE STATION.** ## **RESPONDENTS ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **Prv.** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** **Crl. M.C. Nos. 232, 233, 236, 237, 242, 243, 244, 254, 255 & 256 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** **DATED THIS THE 17th DAY OF JANUARY, 2013** ## **O R D E R** In all these Criminal Miscellaneous Cases, the prayers are identical. The same is to direct the Sub Inspector of Police concerned to receive and consider the application of the petitioners to compound the offence against the petitioners and thereby give an opportunity to them for compounding the alleged offence under Section 60(A)(1) of the Kerala Minor Mineral Concession Rules with a further direction to release the vehicle to the petitioners after compounding the offence. The petitioners have produced as Annexure A1, the copy of the mahazar in all the cases. 2. It is pointed out that the seizure is made under Section 102(1) of the Code of Criminal Procedure. But without reporting the same to the Judicial First Class Magistrate having jurisdiction, the Police Officer who seized the vehicle, reported the same to the Revenue Divisional Officer who has no authority in the matter. 3. The matter was heard in the light of the point raised, whether the seizure is under Section 102(1) of the Code of Criminal Procedure or not. Crl.M.C.No.232/2013, etc. -2- 4. Heard learned counsel for the petitioners, Shri P.M.Ziraj and learned Additional Director General of Prosecutions, Shri K.I. Abdul Rasheed. 5. Learned counsel for the petitioners relied upon the decision of a Division Bench of this Court in **Sujith v. State of Kerala and others** (2012 (2)KHC 275) wherein the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 were considered. Therein, the Division Bench was of the view that the Police Officer can effect seizure of the same, even if seizure is done by the Revenue Divisional Officer, in terms of Section 102(1) of the Code of Criminal Procedure. This Court was of the further view that the Police Officer shall file a report of such seizure to the Magistrate concerned, in terms of Section 102(3) of the Code. 6. Learned Addl. Director General of Prosecutions submits that the provisions regarding seizure have been incorporated in the Mines and Minerals (Development and Regulation) Act, 1957 and Minor Mineral Concession Rules and therefore Section 102(1) of the Code will not apply. 7. Under the Mines and Minerals (Development and Regulation) Act, 1957, Section 21 provides for penalties. The provision regarding seizure is Crl.M.C.No.232/2013, etc. -3- Section 21(4) which reads as follows: “(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.” Section 21(4A) provides for confiscation by an order of the court which is competent to take cognizance of the offence under sub-section (1). Section 22 provides that “no court shall take cognizance of of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.” 8. Under the Minor Mineral Concession Rules, Rule 58 provides for penalties. Rule 58(3) provides for seizure and the same reads as follows: “(3) Whenever any person raises, without any lawful authority any minor minerals from any land, and for that purpose, brings on the land, any tool, equipment, vehicle or any other things, such mineral, tool, equipment, vehicle or other thing shall be liable to be seized by an officer or authority specifically empowered in this behalf by the Government.” Crl.M.C.No.232/2013, etc. -4- 9. Even though Shri P.M. Ziraj, learned counsel for the petitioners relied upon **Sujith's case** (2012 (2) KHC 275), the provisions under the Protection of River Banks and Regulation of Removal of Sand Act, 2001 are slightly different. Therein, Sections 22 and 23 are important which reads as follows: **“22. Punishment under other laws not barred.** -- Nothing in this Act shall prevent any person from being prosecuted under any other law for the time being in force for any act or omission made punishable under this Act. **23. Confiscation of vehicles.** -- Whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transportation is liable for confiscation by the Police or Revenue Officials.” Therefore, going by Section 22, prosecution can be there in respect of any person under any other any other law for the time being in force. Section 23 provides for punishment as well as confiscation of the vehicle. While interpreting the said provisions, in **Moosakoya v. State of Kerala** (2008 (1) KLT 538), a Division Bench of this Court, in para 3 was of the view that the seizure, for the purpose of Section 23 is to be effected under the provisions contained in the Sand Act and Rules and not under Section 102 Crl.M.C.No.232/2013, etc. -5- of the Code of Criminal Procedure. The relevant findings contained in para 3 are extracted below: “Rr.27 and 28 clearly lay down the procedure to be complied with by the police officer or revenue officer who seizes the vehicle for illegal transport of sand. The police officers and revenue officials shall seize the vehicle used for illegal transportation of sand under R.27 of the Rules. Under S.23 not only police officers, but also revenue officers may seize such vehicles. After seizure what is to be done with the vehicle and procedure to be adopted by the officers are clearly laid down in Rr.27 and 28. The seizure is, therefore, to be effected under the provisions contained in the Sand Act and Rules and not under S.102 Crl.P.C.” 10. The effect of Section 22 was considered by a later Division Bench in **Sujith's case** (supra) and the applicability of Section 102(1) of the Cr.P.C. was considered in that context. This is clear from the following statement of law in paragraphs 8 and 9. “8. As already noted, S.22 provides that nothing in the Act shall prevent any person from being prosecuted under any other law for the time being in force for any act or omission made punishable under the Act. Therefore, the restrictions in S.25 as to taking cognizance do not apply to criminal proceedings relatable Crl.M.C.No.232/2013, etc. -6- to apprehension, prosecution, conviction and punishment on the allegation of commission of an offence under other laws. The provisions of S.23 of the Act would also not apply to such proceedings. Chapter V of the Act does not provide alternatives to different provisions in the Code of Criminal Procedure which regulate arrest; process to compel appearance; process to compel the production of things; proceedings in trial etc., under S.24 of the Act, all offences under the Act are cognizable. The Act is not a comprehensive and complete code by itself. The Act does not exclude the application of the Code of Criminal Procedure. Hence, the general procedural law would apply to the extent it is not excluded specifically by the Act. When a complaint is made in terms of the provisions of Chapter V of the Act, the provisions of the Code of Criminal Procedure would, undoubtedly, apply to the proceedings initiated thereby.” 9. Now, S.102(1) of Crl.P.C. empowers any police officer to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Under sub-s. (3) of S.102, the police officer shall forthwith report the seizure to the Magistrate having jurisdiction. The provision in S.102 undoubtedly would apply when any police officer finds any property under circumstances which create suspicion of the commission of any offence which would be punishable under any law. In its application to sand or vehicle which is subjected Crl.M.C.No.232/2013, etc. -7- to proceedings under S.23 of the Act, even if the seizure is done by a revenue official, a police officer may effect seizure of the self same goods, in terms of S.102(1) of Crl.P.C. and the revenue official shall then hand over the seized goods to that police officer. This is because the authority, power and the corollary duty of the police officer under S.102(1) of Crl.P.C. is not abridged in any manner by the provisions in the Act. The legislative authorization in S.23 of the Act, though a clumsily worded provision, is only to seize for the purpose of confiscation and not to effect seizure for purposes intended by S.102(1) of Crl.P.C., which include detection, containment, investigation, prosecution and trial in terms of the penal laws. Remember, the offences under the Act are cognizable, meaning that a police officer may arrest without warrant; though, S.25 of the Act interdicts cognizance by Court, except on a complaint by a person authorized in terms of that section of the Act. Following such seizure, police officer shall report such seizure to the Magistrate concerned, in terms of S.102(3) Crl.P.C.” The decision in **Moosakutty's case** (supra) was distinguished by stating that therein the aspect of seizure under Section 23 for confiscation alone was considered and finally in para 10 it was held that those do not regulate the seizures for and in connection with the prosecution which matter falls under Crl.M.C.No.232/2013, etc. -8- Section 102 Cr.P.C. 11. Learned Addl. Director General of Prosecutions emphasised the fact that Section 21(4) of the Mines and Minerals (Development and Regulation) Act and Rule 58(3) of the Mines and Minerals Concession Rules specifically provides for effecting seizure. It is therefore submitted that the seizure effected can only be under those provisions and not under Section 102 of the Code of Criminal Procedure. 12. Having heard both sides, I am of the view that the petitioners' contention that Section 102 of the Code alone is attracted herein, cannot be accepted. The said contention is taken so as to advance the argument that a further report should be filed before the criminal court. The provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, especially Sections 22 and 23 are quite different, when they are considered along with the provisions of the Mines and Minerals (Development and Regulation) Act, as well as Minor Mineral Concession Rules. Therefore, the principles stated in **Sujith's case** (supra) in strict sense, may not apply as far as the applicability of Section 102 of the Code, especially since in paragraphs 8 and 9 their Lordships have considered the effect of Section 22 of the said Act which provides for prosecution under Crl.M.C.No.232/2013, etc. -9- any other laws for the time being in force. Such a provision is absent as far as the Mines and Minerals (Development and Regulation) Act herein is concerned. 13. In the light of the above, the principles stated by the Division Bench in **Moosakoya's case** (2008 (1) KLT 538) will only apply. Therefore, the prayer sought for by the petitioners herein for providing an opportunity to them to compound the offence, is not liable to be granted in these proceedings. Admittedly, First Information Reports have not been filed in these cases. Therefore, unless the petitioners are termed as offenders and consequently as accused in any of the crimes, this Court will not be justified in exercising the jurisdiction under Section 482 of the Code of Criminal Procedure in considering the prayers sought for in these cases. The remedy of the petitioners is to seek other remedies. Accordingly, the writ petitions are dismissed without prejudice to the right of the petitioners to avail other remedies. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**