W.P.(C) Nos. 6366, 6436, 6531 and 6540 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 2ND DAY OF APRIL 2013/12TH CHAITHRA 1935** **WP(C).No. 6366 of 2013 (U) ---------------------------** **PETITIONER(S):** **--------------** **MANIKANDAN, AGED 35 YEARS S/O.VELAYUDHAN, PATTETTUVALAPPIL, VATTAMKULAM P.O PONNANI TALUK MALAPPURAM DISTRICT (OWNER OF TIPPER LORRY BEARING REGISTRATION NO.KL.O7.AR.3928).** **BY ADV. SRI.P.M.ZIRAJ** **RESPONDENT(S):** **--------------** **THE VILLAGE OFFICER, VATTAMKULAM VILLAGE, MALAPPURAM DISTRICT, PIN 679 578.** **BY SR.GOVERNMENT PLEADER SMT.M.J.RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-04-2013, ALONG WITH W.P.(C) NOS.6540, 6436 AND 6531 OF 2013 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6366 of 2013 (U)** **APPENDIX** **PETITIONER(S) EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE SEIZURE MAHAZAR DATED 05.03.2013 PREPARED BY THE RESPONDENT.** **RESPONDENTS' EXHIBITS :NIL** **//TRUE COPY//** **P.A TO JUDGE** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) Nos. 6366,6436, 6531 and 6540 of 2013 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 2[nd] day of April, 2013 ## **JUDGMENT** The petitioners in all these writ petitions have approached this Court with almost identical prayers as noted below: “1. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to release the vehicle of the petitioner unconditionally since the seizure is illegal. 2. Declare that the respondent is not an authority under the Kerala Minor Mineral Concession Rules 1967 or Mines and Mineral (Development and Regulation) Act 1957 and hence the seizure is illegal. 3. Direct the respondent to receive and consider the application to compound the offence against the petitioner and thereby given an opportunity to the petitioner for compounding alleged offence under Section 60 (A) (1) of the Kerala Miner Mineral Concession Rules 1967 4. Issue such other writ or orders or directions, which this Honourable Court may deem fit and proper in the interest of justice and circumstances of the case. ## _W.P.(C) No. 6366 of 2013 and connected cases_ : 2 : 2. The factual particulars in the concerned cases, are tabulated for convenience, as given below. |Case No.<br>[W.P.(C)]|Name of the<br>Petitioner(s)|Vehicle No.||Seized By| |---|---|---|---|---| |6366 of 2013|Manikandan|KL 07 AR 3928|Village Officer,<br>Vattamkulam|| |6436 of 2013|Rafeek|TN 49 AE 1607|The Deputy<br>Tahasildar,<br>Ottappalam|| |6531 of 2013|Annies Sunny|KL 07 AY 1158|Village Officer,<br>Airapuram|| |6540 of 2013|Sujith K.V.|KL 54 A 1074|Village Officer,<br>Vattamkulam|| 3. The learned counsel for the petitioners submits that the only relief now pressed before this Court is to permit the petitioners to have the offence compounded. It is also pointed out that, once the offence is compounded, no further prosecution proceedings will lie in view of Section 2 of Section 23 A of the Mines and Minerals (Development and Regulation) Act, 1957. 4. Heard the learned Government Pleader as well. 5. Now, the question that remains is, what fee could _W.P.(C) No. 6366 of 2013 and connected cases_ **==> picture [30 x 10] intentionally omitted <==** be imposed for compounding the offence, if the petition for compounding is allowed. By virtue of the proviso to Section 23A(1) and the proviso to Rule 60A(1), it cannot exceed the maximum amount of fine which may be imposed for that offence ( **in respect of offences punishable with fine only** ). The penalty is stipulated under Section 21(1) of the Act and Rule 58(1) of Rules. The said provisions read as follows : ## “ **Section 21. Penalties.** (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twentyfive thousand rupees, or with both.” ## **“Rule 58. Penalties.** (1) Whoever contravenes any provision of these rules shall be punishable with imprisonment for a term which may extend to one year, or with a fine which may extend to five thousand rupees or with both and in the case of continuing contravention, with an additional fine which may extend to five hundred rupees, for every day during which such contravention continues after ## _W.P.(C) No. 6366 of 2013 and connected cases_ : 4 : ## conviction for the first such contravention.” 6. True, as per Rule 58, it is provided that the maximum fine that can be imposed in respect of infringement is only Rs. 5,000/-. But, coming to the provisions of the Act i.e Section 21(1), the maximum fine that could be imposed is Rs. 25,000/- in respect of the two specific instances taken care of (under Sub Section (1) and Sub Section (1A) of Section 4 of the Act. Sub section (1A) of Section 4 reads as follows : “(1A) No person shall transport or store or cause to the transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.” 7. Infringement of other provisions are taken care of by Sub Section (2) of Section 21 of the Act, read with Rule 58 of the Rules. When a special provision is there with regard to the instances under Sub Section (1) and (1A) of Section 4 of the Act, as dealt with under Section 21(1), it has to be guided by such special provision and not by the general provision of the Rules under Rule 58. That apart, the ceiling with respect ## _W.P.(C) No. 6366 of 2013 and connected cases_ : 5 : to the 'maximum fine' is only in respect of the offences which are **liable to be punished by fine only** ; as clear from the proviso to Section 23A(1) of the Act and the proviso to Rule 60A(1) of the Rules; whereas the offences under Section 4 (1A) is one which can be punished with imprisonment for a term which may extend to two years or with a fine of twenty five thousand rupees or with both (see paragraphs 21, 22, 23 and 24 of the judgment passed by a Division Bench of this Court reported in **Ismayil v. Deputy Tahsildar [2011(2) KLT 322].** 8. Considering the scope for compounding and the probable amount that could be imposed as compounding fee in tune with the relevant provisions of law; in some other cases which came up for consideration before this Court , interim orders were passed, enabling the petitioners to have the vehicle concerned released as an interim measure, on satisfaction of a sum of Rs. 25,000/- (Rupees Twenty five thousand only) before the concerned respondent/S.I. of Police and on executing a Simple Bond undertaking to produce the ## _W.P.(C) No. 6366 of 2013 and connected cases_ : 6 : vehicle as and when called for and that the vehicle will not be alienated or encumbered during pendency of further proceedings. In some other cases, interim orders were passed earlier, directing the concerned respondent/S.I. of Police to consider the application preferred by the petitioner for compounding the offence within the time specified therein and also to release interim custody of the vehicle, on executing a 'simple bond' and giving an 'undertaking' to produce the vehicle as and when called for by the Court or by the authorities concerned and that the petitioner will not transfer or encumber the vehicle or reduce its value in the meanwhile. In yet another group of cases it was brought to the notice of this Court that the concerned respondent/S.I. of Police had already registered a Crime and that vehicle was produced before the concerned Judicial First Class Magistrate having jurisdiction over the area. In such cases also, interim orders were passed earlier, directing the concerned respondent/S.I. of Police to consider and pass orders in the application stated as preferred by the concerned petitioner for permission to _W.P.(C) No. 6366 of 2013 and connected cases_ : 7 : compound offence. 9. The basic issue involved in these cases was considered by this Court in a batch of cases [W.P.(C) 24494 of 2012 and connected cases] and as per the judgment dated 09.01.2013 **[Digil Vs. S.I. of Police (2013 (1) KLT 600)]** , it was held in paragraph 24 that, once the offences are compounded, no further proceedings for confiscation of the vehicle can be sustained. The observation made by the learned Judge in paragraph 25 is relevant, which is extracted below : 25. Therefore, in cases where the offences are compounded in the light of sub-section (2) of Section 23A of the Act and Rule 60A of the Rules, no proceedings can be taken against the offender. In the light of the fact that the court can take cognizance only on a complaint in writing, it cannot be said that after the composition of the offence a fresh complaint can be filed. Even in respect of cases where complaint has been filed, if the offence is compounded, a report will have to be filed before the court and the complaint will have to be closed . When power is given to the court itself to confiscate the vehicle and no separate procedure is prescribed in such cases by the main ## _W.P.(C) No. 6366 of 2013 and connected cases_ : 8 : body of Section 21, it is not possible to accept the contention of the learned Government Pleader that again an order of confiscation can be passed by the court. No specific procedure is prescribed under the enactment or under the Miner Mineral Concession Rules to approach the court in such cases to proceed with the confiscation proceedings. The rules framed under Section 15 of the Act by the State Government do not provide anything with regard to the confiscation proceedings as already noticed. It may be a matter for consideration by the appropriate bodies to bring in new provisions concerning confiscation proceedings. ## 10. After arriving at such a finding, the writ petitions were allowed, with the following directions : 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 ## _W.P.(C) No. 6366 of 2013 and connected cases_ : 9 : 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. In the above circumstances, this Court finds that the petitioners herein are also entitled to have similar relief. It is ordered accordingly. The question as to the power of Village Officer to seize the vehicle under the Mines and Minerals (Development and Regulation) Act, 1957/Kerala Minor Mineral Concession Rules 1967. The Writ Petitions are disposed of. Sd/- **P. R. RAMACHANDRA MENON, (JUDGE)** kmd