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2018 DIGILAW 701 (KER)

Rajesh v. District Collector

2018-09-04

SHAJI P.CHALY

body2018
JUDGMENT : 1. This Writ Petition is filed by the petitioner challenging Ext.P4 order passed by the 2nd respondent as per the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001, on the ground that the same is passed absolutely in violation of the statutory provision namely, S.23A of the said Act. Brief material facts for the disposal of the Writ Petition are as follows: 2. Petitioner is the registered owner of a tipper lorry bearing Reg. No. KL-14-H 5972, a 2009 model vehicle which was put in use by entrusting the same to a driver having valid licence and badge. The 3rd respondent, on 03.06.2013, seized river sand from the vehicle of the petitioner when the driver was driving the vehicle and registered Ext.P2 F.I.R. Thereupon, petitioner has submitted an application under S.451 Cr.P.C. and the Magistrate has passed Ext.P3 order dated 05.10.2013, providing interim custody of the vehicle to the petitioner on conditions subject to the confiscation proceedings if any initiated by the authority under the statute. It was further directed that the petitioner shall produce the vehicle as and when directed by the Magistrate or as directed by the confiscating authority under the statute. According to the petitioner, petitioner has maintained the vehicle in accordance with the directions issued by the Magistrate. 2. The 2nd respondent initiated confiscation proceedings with regard to the vehicle. The 2nd respondent was not satisfied with the explanation offered by the petitioner and has passed Ext.P4 order dated 26.03.2016, directing the petitioner to produce a demand draft for Rs. 5,50,000/- before the 2nd respondent in lieu of confiscation of the vehicle. Apparently, being aggrieved by the said order, petitioner has preferred Ext. P5 revision along with Ext. P6 application to condone the delay which was dismissed as per Ext.P7 by the revisional authority on the ground that petitioner has not submitted the application within the special limitation period prescribed under Section 23B. It was thereafter, this Writ Petition is filed by the petitioner. 3. I have heard learned counsel for the petitioner and learned Government Pleader and perused the pleadings and the documents on record. 4. The controversy revolves around Section 23A of Act 2001, which read thus: “23A. It was thereafter, this Writ Petition is filed by the petitioner. 3. I have heard learned counsel for the petitioner and learned Government Pleader and perused the pleadings and the documents on record. 4. The controversy revolves around Section 23A of Act 2001, which read thus: “23A. Confiscation of sand, vehicles - (1) Where any property is seized under Section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of property is received, the police officer concerned shall take steps under Section 102 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). (2) Where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall be taken as per the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and, if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them is not satisfactory, they shall be subjected to confiscation under sub-section (4): Provided that the release of the properties seized to any person, for its safe custody, to any person or its disposal, shall be on sufficient security and such release or disposal shall only be till the completion of the confiscation proceedings under this Act. Provided further that the sand seized shall not, for any reason, be released to any person and the same shall be subjected to confiscation under sub-section (4). (3) Where a report under sub-section (1) is received before a Sub-Divisional Magistrate, a notice requiring to furnish in writing within the stipulated time as stated in the notice, the reasons, if any, for not confiscating the property seized under Section 23, shall be issued to the owner of, or the person having control of, the vehicle, tool, implements, loading equipment, or other article. (4) Where the owner of the properties seized or the person having control of the same does not furnish explanation or the explanation given is not satisfactory, and the Sub-Divisional Magistrate is satisfied that the properties seized under Section 23 are to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed in writing to its owner or the person having its control: Provided that the owner of the properties seized or the person having its control shall be given the liberty to reclaim it, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, in lieu of the properties confiscated: Provided further that the sand confiscated shall not for any reason, be released by releasing the value. (5) The amount received under sub-section (4) shall, subject to the provisions of Section 23D, be remitted to the River Management Fund. (6) The sand confiscated under sub-section (4) shall be sold to Nirmithi Kendra or to ‘Kalavara’ at such rate, as may be fixed by the Public Works Department from time to time and such amount shall be remitted to the River Management Fund. (7) The confiscation under this section shall be in addition to the penalty provided for the offence under this Act.” 5. On a reading of sub-section (4) above, it is evident that where owner of the properties seized or the person having control of the same does not furnish explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the properties seized under Section 23 are to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed in writing to its owner or the person having its control. 6. However, the proviso thereto makes it clear that the owner of the property seized or the person having its control shall be given the liberty to reclaim it, except sand, by remitting an amount equal to the value of the confiscated articles as fixed by the Collector in lieu of the property confiscated. Therefore it is explicit that the primary authority is not at liberty to compel the petitioner to remit the amount, and then take the vehicle. Which thus means, the payment of the amount in lieu of confiscation is optional to the owners of the property. Therefore it is explicit that the primary authority is not at liberty to compel the petitioner to remit the amount, and then take the vehicle. Which thus means, the payment of the amount in lieu of confiscation is optional to the owners of the property. The imperative provision contained under Section 4 is unequivocal that the confiscation of the vehicle, on finding guilt is mandatory upon the primary authority, but option can be left to the owner as per the proviso thereto. According to the petitioner, instead of confiscating the vehicle, the authority has directed the petitioner to remit the value of the vehicle which is an option to be exercised by the petitioner on account of the provisions contained under the proviso thereto. I find force in the said contention, and accordingly I have no hesitation to hold that the order impugned is illegal, arbitrary, and without jurisdiction to that extent, liable to be interfered with by this court under Article 226 of the Constitution of India. 7. Therefore, I think it is only appropriate that Ext.P4 order is modified to the extent directing the petitioner to surrender the vehicle before the statutory authority, which exercise is offered to be undertaken by the petitioner in the Writ Petition. On account of the same, the Writ Petition is allowed to the above extent and the petitioner is directed to surrender the vehicle before the 2nd respondent within 15 days from the date of receipt of a copy of this judgment. Thereafter, the 2nd respondent will be at liberty to take appropriate action in accordance with law. I also make it clear that, if the petitioner is not complying with the directions with respect to the surrender, 2nd respondent will be at liberty to take necessary action to confiscate the vehicle. Needless to say, the amount deposited by the petitioner in accordance with Ext.P3 order passed by the Magistrate shall be taken into account while considering the whole issue. 8. The Writ Petition is allowed to the above extent.