Lissy Sunny vs State of Kerala

A.V. Ramakrishna Pillai, J.—The petitioner, whose goods vehicle bearing Reg. No. KL 5 Y 2900 was seized by the Deputy Tahsildar, Kottayam and the Village Officer, Onamthuruthu, on 27.01.2010 on the allegation that the said vehicle was being used for unauthorized transportation of river, has come up before this Court.

The petitioner alleges that he was having a valid pass in Form P under Rule 48K of the Kerala Minor Mineral Concession Rules. He further alleges that the 8th respondent has been issued with Ext. P2 licence by the Geologist under Rule 48(c) of the above Rules; and in view of the above pass and licence, the petitioner''s vehicle could have been searched by an officer, not below the rank of Tahsildar, which is the mandate of Section 23(B) of the Kerala Mines and Minerals (Development and Regulation) Act, 1957. His further allegation is that no sample was taken from his vehicle legally and the sample of sand alleged to have been taken from the petitioner''s vehicle was not collected in the presence of witnesses. His further allegation is that the provisions of Section 100 of the Code of Criminal Procedure have not been properly followed as mandated under Section 23(B) of the Central Act. The petitioner''s grievance is that his vehicle was proceeded against under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, assuming that the sand collected from his vehicle was river sand. The vehicle was confiscated as per Ext. P13 order. The petitioner alleges that Section 21(4) of the Central Act 67 of 1957, the vehicle should have been seized by an empowered officer; and under Section 21(4)(a), the vehicle seized under Sub Section 4 is liable to be confiscated by an order of the court, which is competent to take cognizance. Here, the petitioner points out that there is no order of confiscation of his vehicle. It is with these allegations, the petitioner has come up before this Court.

In the counter affidavit filed by the 3rd respondent, it is contended as follows;

As per Section 23 of the Kerala Protection of River Banks of Regulation of Removal of Sand Act, 2001 and 27 of Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002, Revenue Officer or Police officials can seize the vehicle used for transportation of river sand. No category is mentioned. Unauthorized mining of river sand affects the ecological balance of the area in question. In order to restrict the mining of river sand, the Government introduced the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The unauthorized extraction and transportation of river sand/kayal sand and mining are restricted according to the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and not according to the Kerala Minor Mineral Concession Rules, 1967. The squad deputed to restrict the unauthorized mining and transportation of river sand under the leadership of Tahsildar, Kottayam, the 4th respondent herein, seized the vehicle bearing No. KL 5Y 2900 on 27.1.10 at 3.00 pm in Kallara-Neendoor Road at Pralel during the routine inspection. It was confiscated with the bona fide belief that vehicle is transporting kayal sand by using a permit given for the transportation of ordinary sand. The 7th respondent in the squad of the 2nd respondent has prepared the mahazar in the presence of the witnesses and the matter of collection of sample was referred in the mahazar. The squad had taken the sand sample from the vehicle itself at the same time.

Form P is issued under Section 48K of Minor Mineral Concession Rules for transporting ordinary sand. After verification of sample from the vehicle, the Senior Geologist reported that the sand is river sand. From this, it is revealed that the party was transporting river sand by using the pass issued for ordinary sand. The unauthorized transportation of sand was raided by the squad members under the leadership of Tahsildar. The mahazar is counter signed by the Deputy Tahsildar included in the squad. As per the report of the Senior Geologist dated 09.02.2009, No. 230/DOY/ML/10, the sample resembles to that of river sand. A true copy of the said report is produced herewith and marked as Ext. R3(A).

The members in the squad (Two Deputy Tahsildars) under the leadership of Tahsildar seized the vehicle and it is seen from the mahazar that two witnesses signed. The matter relating to river sand was dealt in accordance with Kerala Protection of River BankS and Regulation of Removal of Sand Act, 2001 and Rules, 2002. Tahsildar, Kottaym reported that the driver signed on the covers of the sample. The driver refused to accept the mahazar, but, he signed in the label of packets containing sand sample collected from the vehicle.

Mrs. Lissy Sunny Manakulangara filed WP(C) No. 3933/2010 before this Court; and this Court, on 10.02.2010, ordered the Tahsildar to release the vehicle unconditionally if the vehicle was not involved in any other offence. After verification of report and hearing both parties, the file was handed over to the District Collector as the vehicle was carrying the river sand. It was handed over, because, according to Section 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, the Tahsildar has no power to release the vehicle. On receipt of application from Mrs. Lissy Sunny, the District Collector had conducted hearing on 12.03.2010. After hearing and verification of reports, the District Collector ordered to confiscate the vehicle or to release the vehicle by depositing an amount of 6,50,000/-. It is as per the judgment in WP(C) No. 3933/2010 dated 10.02.2010 notices were served to the petitioner and sand stockiest, the Tahsildar, Kottayam considered the matter and passed Order No. 979/2010 dated 05.03.2010 and referred the matter to the District Collector, Kottayam.

Against the said order, the party filed WP(C) No. 16637/2010 before this Court and vide its judgment dated 05.10.2010, ordered the Sub Divisional Magistrate Court to take the matter afresh and pass final order. As per the amended provisions of Section 23 of the Sand Act, 2001, the RDO exercised the power of Sub Divisional Magistrate. The District Collector handed over the file to the office of the 3rd respondent. The 3rd respondent conducted hearing of Deputy Tahsildars included in the squad (Sri Alex Joseph & T.D. David), Geologist, Sand Stockist, Vehicle Owner and counsel; and the Revenue Divisional Officer passed final order dated 05.04.2011.

During hearing, the Deputy Tahsildars in the squad argued that they seized the vehicle with bona fide belief that the vehicle was carrying kayal sand and the Geologist reported that the sand is river sand. They also argued that on inspecting the stock register of the sand stockiest, it was found that the register was not maintained properly. They also argued that another vehicle of the same owner has seized earlier for the same offence and they were doing the same business for the last 5 years. The Geologist came up for hearing, who argued that as per the Mines & Minerals (Development & Registration Act), 1957, all sand other than used for industrial purpose are treated as ordinary sand. Considering the above arguments and related records, the 3rd respondent passed the final order on 05.04.2011. This Court ordered to consider the matter afresh as per the Act and Rules of Kerala Protection of River Banks and Regulation of Removal of Sand, and not according to Mines and Mineral (Development & Regulation) Act, 1957. Consequently, as per Section 23 of the Act, the Revenue Divisional Officer passed final order on 05.04.2011 ordering to confiscate the vehicle with a condition to release the vehicle, if he remits 6,50,000/- as vehicle value. The order has been passed as per the Act and Rules of Kerala Protection of River Banks and Regulation of Removal of Sand and according to the direction in the judgment of this Court.

The petitioner was transporting river sand in the pretext of P Form. Report of Senior Geologist reveals the fact that the sample resembles to that of river sand. The unauthorized excavation and transportation of river sand is dealt with according to the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act and not according to the Kerala Mines and Mineral (Development & Regulation) Act, 1967.

The Government introduced the Kerala Protection of River Banks and Regulation of Removal of Sand Act to restrict the unauthorized extraction and transportation of river sand and unauthorized mining of river sand. The report of Senior Geologist, vide No. 230/DOY/ML/10 dated 09.02.2010, stated that the sand sample resembles to that of river sand. Hence, the actions of revenue authorities are legal.

It is submitted that the seizure and order of the revenue authorities are legal and in accordance with Kerala Protection of River Banks and Regulation of Removal of Sand Act. The Act is introduced to curb the unauthorized mining of river sand for protecting the ecological balance. The party was transporting river sand in pretension of ordinary sand in the light of P Form. The unauthorized transportation of river sand is dealt with according to the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and its amendments and not according to the Kerala Minor Mineral Concession Rules, 1967. As per Sec. 23 of the Act, 2001 and Sec. 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002, revenue official can seize the vehicle. This vehicle was thus seized by the Taluk Squad under the leadership of Tahsildar, Kottayam.

The procedure of seizure and sampling was conducted in the presence of witnesses. Sample was taken from the lorry in the presence of lorry driver along with his signature. The sample collected from the vehicle is tested by the Geologist. The actions of the squad was in accordance with the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The Tahsildar, Kottayam seized the vehicle bearing Reg. No. KL 5Y 2900 on 27.01.2010 alleging that the vehicle had been carrying kayal sand unauthorizedly by using a permit (P Form No. 228/10 dated 27.1.10) given for the transportation of ordinary sand. The Tahsildar, Kottayam sent the sand sample collected from the vehicle to the Mining & Geology Department, Kottayam for verification of the sand. The Senior Geologist reported on 09.02.2010 that the sample resembles to that of river sand.

The Taluk Special Squad headed by the Tahsildar, Kottayam conducted the search and the matter of seizure of vehicle was reported to the District Collector on 29.1.2010. Under the provisions of Section 23 of the Act, 2001 and Section 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002, the revenue officials are empowered for confiscation of vehicles. The driver of the vehicle refused to accept the mahazar and it was not given to the petitioner as she was not present at the time of seizure. The unauthorized transportation of the river sand was dealt in accordance with the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Report of Senior Geologist vide No. 230/DOY/ML/10 dated 09.02.2009 reveals that the sand sample resembles to that of river sand.

Arguments have been heard.

The learned counsel for the petitioner mainly relied on Ext. P4 notification No. 32010/L2/93/ID dated 22.06.1995 published in Extra Ordinary Kerala Gazette No. 796 dated 26.06.1991, which makes it clear that the officer, not below the rank of Tahsildar, is the competent authority to exercise the powers and functions under Rule 3(iv) of the Kerala Minor Mineral Concession Rules, 1967.

It can be seen from Ext. P4 that only the Tahsildar, Revenue Divisional Officer or the District Collector or such other Officers mentioned therein are competent to conduct the search and to seize the vehicle into custody. In this case, the petitioner''s vehicle was taken into custody by respondents 5 and 7, who have no powers to do so.

Further, Section 23(B) of the Code of Criminal Procedure shall apply while effecting the search. Section 100 of the Code of Criminal Procedure makes it mandatory to conduct the search in the presence of two witnesses; and a list of all things taken possession of, shall be delivered to the person searched. Ext. P3 is the Mahazar signed by two persons evidencing the seizure of the vehicle and the sample of the so called sand taken from the vehicle was not in the presence of those witnesses and a copy of the list of sample taken attested by the witnesses was neither prepared nor given to the petitioner''s driver. It is a settled proposition of law that while taking samples of contraband articles, presence of witnesses are mandatory and such samples will have to be taken and identified by those witnesses.

Ext. P1 would go to show that the petitioner''s driver purchased three Metric Tones (one lorry lad) of sand from the 8th respondent under a cash memorandum in Form P issued by him. Ext. P2 is the true copy of the licence in Form L dated 23.07.2009 issued to the 8th respondent. As could be seen from Ext. P1, it has been issued under Rule 48k of the Kerala Minor Mineral Concession Rules, 1967 in Form P, which was with the vehicle; and the proceedings against the vehicle can only be under the Central Act 67 of 1957 and the under the Kerala Minor Mineral Concession Rules. As Ext. P1 was issued under Rule 48(k) in Form P, the search and seizure can be made only under Section 23(B) of the Central Act by a Gazetted Officer, notified by the State Government in accordance with Section 100 of the Code of Criminal Procedure. Here, none of these conditions are satisfied.

The learned Senior Government Pleader relied on the finding in Ext. P7, wherein it is stated that the sample collected was sent for examination to the District Geologist, who certified that it was river sand. In support of the argument, the learned Government Pleader relied on Ext. P10 report of the Senior Geologist, wherein it is stated that the sand sample resembles to be fluvial origin (river sand).

The learned counsel for the petitioner would argue that the said observation is wrong in the light of Ext. P17, which is an information received by the petitioner under the Right to Information Act, wherein it is stated that during the period ranging from 26.01.2010 to 15.02.2010, there was only one application received in the Directorate of Mining & Geology, Kesavadasapuram, Pattom, Thiruvananthapuram, for examination; and during that period, no application was received from Kottayam District.

Evidently, the present seizure was effected by the Tahsildar, Kottayam. The learned counsel for the petitioner further relied on Ext. P18, which is the deposition of the Geologist, who was examined before the Revenue Divisional Officer on 29.12.2010 while issuing Ext. P13 proceedings. Ext. P18 reveals that the Geologist has deposed that it cannot be conclusively said that the sample was river sand. Therefore, in the light of the deposition, Ext. P10 certificate does not have any legal sanctity and the impugned orders passed consequent to Ext. P10 have to go. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is entitled to succeed.

In the result, the writ petition is allowed.

Exts. P3, P7, P8, P10 and P13 are quashed and it is hereby declared that the seizure of the petitioner''s vehicle bearing Reg. No. KL 5 Y 2900 is illegal.