Kerala High CourtAhammad Safeek T.E vs State Of Kerala on 2 August, 2016Author:V Raja VijayaraghavanBench:V Raja VijayaraghavanIN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

      MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

                     Crl.MC.No. 6504 of 2016 ()
                     ---------------------------

      CRIME NO. 595/2016 OF CHANDERA POLICE STATION , KASARGOD


PETITIONER(S)/ACCUSED:
---------------------

          1. AHAMMAD SAFEEK T.E.,
            AGED 25 YEARS,
            S/O. IBRAHIM T.S.,
            D. NO.1-486, POOMANNU HOUSE,
            K.C. NAGAR, TALAPADY POST,
            MANGALORE.

          2. ASHOK SUVARNA,
            AGED 41 YEARS,
            S/O. BABU POOJARY,
            RADHAKRIPA ESHWAR COMPOUND BEJAL,
            MANGALORE.


            BY ADVS.SRI.MANOJ RAMASWAMY
                    SMT.SANJANA R.NAIR

RESPONDENTS/COMPLAINANT:
------------------------

          1. STATE OF KERALA,
            REPRESENTED BY THE
            PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM - 682 031.

          2. THE SUB INSPECTOR OF POLICE,
            CHANDERA POLICE STATION,
            KASARAGOD DISTRICT-671323.


           BY PUBLIC PROSECUTOR SRI. T.R. RENJITH

        THIS CRIMINAL MISC. CASE   HAVING COME UP FOR ADMISSION ON
07-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MC.No. 6504 of 2016

                              APPENDIX:

PETITIONERS' ANNEXURES:

A1:  COPY OF THE FIR NO.595/2016 DATED 2.8.2016 OF CHANDERA POLICE
STATION.

A2:  COPY OF SEIZURE MAHAZAR.

A3:  COPY OF the GO(MS) NO.161/09/ID DATED 14.12.2009

A4:  COPY OF the JUDGMENT IN WPC 31958/2015 DATED 30.10.2015 AND
CONNECTED CASES.

A5:  COPY OF the INVOICE NO.760 DATED 29.7.2016.

A6:  COPY OF THE ADVANCE TAX UTILIZATION RECEIPT DATED 2.8.2016.

A7:  COPY OF DELIVERY NOTE ISSUED AT THE COMMERCIAL TAX CHECK POST
AT MANJESWARAM.

A8:  COPY OF CERTIFICATE VIDE NO.321305566932/2016-17 DATED 4.8.2016
ISSUED BY THE COMMERCIAL TAX OFFICER, MANJESWARAM.

RESPONDENTS' ANNEXURES:      NIL



                 TRUE COPY


                 P.A. TO JUDGE.



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              RAJA VIJAYARAGHAVAN.V., J
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                  Crl.M.C. No. 6504 of 2016
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                 Dated 7th November, 2016
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                              ORDER1.This petition is filed underSection 482of the Code of

  Criminal Procedure.2.The petitioners herein are the accused 1 and 2 in Crime

  No.595 of 2016 of the Chandera Police Station registered

  for offences punishable underSection 379of the IPC and

  underSections 20of the Kerala Protection of River Banks

  and Regulation of Removal of Sand Act, 2001 (hereinafter

  referred to as "Act 18 of 2001").3.The prosecution allegation is that, on 2.8.2016 the Sub

  Inspector of Police, Chandera Police Station intercepted

  the Lorry bearing Reg.No.KA-19/AB-3735 driven by the 1st

  petitioner and on inspection, the vehicle was found loaded

  with sand. Under the strong premise that what was beingCrl.M.C. No.6504 of 2016       -2-transported was river sand, illegally removed from some

  river in the State of Kerala, violating the provisions of Act

  18 of 2001, the vehicle as well the sand was seized and

  Annexure-A1 FIR was registered as aforesaid.4.This petition is filed seeking to quash the proceedings on

  the ground that the continuance of proceedings is nothing

  but an abuse of process.5.I have heard the submissions of the learned counsel

  appearing for the petitioners as well as the learned Public

  Prosecutor.6.The learned counsel appearing for the petitioners submits

  that due to the scarcity of construction grade sand in the

  State of Kerala, the Government has taken a policy

  decision to encourage the import of sand from other

  States as well as from other Countries. This was done in

  public interest considering the huge requirement of sandCrl.M.C. No.6504 of 2016       -3-in the State of Kerala.      It was in accordance with the

  orders issued by the Government that the petitioners had

  imported sand from the State of Orissa.        Reference is

  made to Annexure-A5 Invoice, Annexure-A6 Advance Tax

  Utilisation Receipt and Annexure-A7 Delivery Note and

  Annexure A8 certificate issued by the Commercial Tax

  Officer to contend that what was seized from the vehicle

  of the 2nd petitioner was not river sand removed from the

  rivers flowing in the State of Kerala but sand imported

  from the State of Orissa.       In view of the above, the

  initiation of prosecution is nothing but an abuse of process

  of court, is the submission.7.The learned counsel would then rely on the judgment inPrakash Nayak v. District Collector, Kasaragod and

  Others[2016(40 KHC 915] to contend that a Full Bench

  of this Court has conclusively held that sand or even river

  sand brought to the State of Kerala from other States, onCrl.M.C. No.6504 of 2016        -4-licit or illicit export, cannot be governed by theSand Actin Kerala. According to the learned counsel, in view ofthe

  said decision, the Crime registered underSection 379of

  the IPC and under the various provisions of the Act 18 of

  2001 can only be quashed.8.Per contra, the learned Public Prosecutor relying on the

  case ofPrakash Nayak(supra) would contend that even

  if provisions under Act 18 of 2001 is not attracted,

  prosecution is perfectly possible under theMMDR Actand

  the rules framed thereunder.        It is submitted by the

  learned Public Prosecutor that the petitioners have not

  produced any mineral transit pass issued by the

  competent authority in the State of Orissa which in other

  words would reveal that the sand was not licit.       It is

  submitted that the Full Bench has held that the

  prosecution procedure including seizure and arrest as

  provided under theMMDR Act, 1957will have to beCrl.M.C. No.6504 of 2016     -5-followed in such circumstances.     However, the learned

  Public Prosecutor would fairly submit that the Commercial

  Tax Officer (Admn) after verification of the Kerala Value

  Added Tax Information System (KVATIS) and vehicle

  checking register maintained in the commercial tax check

  post, Bangara has intimated that the vehicle bearing

  Reg.No.KA-19-AB 3735 had crossed the check post prior

  to the seizure.       The learned Public Prosecutor has

  submitted that steps have been taken for altering the

  Section by including the penal provisions of theMMDR Act,

  1957.9.I have considered the rival submissions and have gone

  through the materials on record.10.Since the documents produced by the petitioners and

  also the information received from the commercial tax

  authorities reveals that the sand found in the vehicle was

  imported from the State of Orissa, the prosecution of theCrl.M.C. No.6504 of 2016       -6-petitioner underSection 379of the IPC and underSection

  20of Act 18 of 2001 cannot be sustained.11.However, the petitioner has not produced any mineral

  transit pass issued by the competent authority in the

  State from where the sand was exported on payment of

  royalty and other charges.In view of the above, and as

  held by the Full Bench inPrakash Nayak(supra), there

  is no embargo in dealing with the case under theMMDR

  Act, 1957and proceedings including seizure, confiscation

  and prosecution can be initiated under the provisions of

  the said Act.      Hence, though the prosecution of the

  petitioner underSection 379of the IPC and underSection

  20of Act 18 of 2001 cannot be sustained in the eye of

  law, Annexure-1 FIR cannot be quashed as such.The

  petitioner is liable to be proceeded underSection 21of the

  MMDR Act, 1957 as has been held inPrakash Nayak(supra).Crl.M.C. No.6504 of 2016          -7-12.In the result, this petition is disposed of as follows:(i) Prosecution of the petitioners underSection 379of the IPC and underSection
             20of the Kerala Protection of River Sand
             and Regulation of Removal of Sand Act,
             2001 cannot be sustained and the same is
             quashed.(b) However, the petitioners are liable to
             be proceeded against under the relevant
             provisions of theMines and Minerals
             (Development and Regulation) Act, 1957.(c) If the police officer who has seized the
             vehicle has not so far reported the fact of
             seizure, he shall immediately report the
             fact of seizure to the court having
             jurisdiction. The court having jurisdiction
             shall be empowered to pass appropriate
             orders as regards the sand and the vehicle
             involved in the cases.     If application for
             interim custody is filed, the same shall
             also   be   dealt   with  by   the   learned
             Magistrate expeditiously.(d) Alternatively, since the prosecution
             is being carried on under theMMDR Act,
             1957, the offence punishable under the
             said Act is compoundable either before or
             after the institution of the prosecution
             underSection 23Aof the MMDR Act,
             1957.(e) If the petitioners are prepared to
             compound the offence, the 2nd respondentCrl.M.C. No.6504 of 2016         -8-is directed to produce the vehicle bearing
              Registration No.KA-19-AB-3735       before
              the District Geologist, Kasaragode within a
              period of three days from the date of
              receipt of a copy of this order.(f)The District Geologist, Kasaragod shall
              permit the petitioners to compound the
              offence underSection 23Aof the MMDR
              Act on payment to that person, for credit
              to the Government, such sum as the said
              authority may specify.(g)The    above    endeavour     shall  be
              completed within a period of 5 days from
              the date of filing of application seeking
              composition before the District Geologist,
              Kasaragod. The petitioners shall pay the
              amount     directly  before    the  District
              Geologist concerned and certificate to that
              effect shall be produced before the 2nd
              respondent who shall release the vehicle
              as well as the sand.Petition is disposed of.Sd/-RAJA VIJAYARAGHAVAN.V.,
                                                 JUDGE

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