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2023 DIGILAW 582 (TS)

Vijaya Islavat v. State of Telangana

2023-08-16

SUREPALLI NANDA

body2023
ORDER : 1. Heard Mr. Ch. Ravinder, learned counsel for the petitioners and learned Government Pleader for Mines and Mineral and Geology for respondent Nos. 1 and 3 and Mr. B.G. Ramulu, learned Standing Counsel appearing on behalf of the 2nd respondent. 2. This Writ Petition is filed praying to issue a Writ of Mandamus, declaring the action of the 2nd respondent in blocking the vehicles of the petitioners TS-07-UG-4445, TS-07-UK-2579, TS-07-UG-5279 and TS-02-UB-8888 in Sand Sale Management and Monitoring System (SSMMS) of the TSMDC website prohibiting the petitioners from purchasing the sand in online booking is illegal, arbitrary and violative of Article 19 (1) (g) of the Constitution of India and violative of principles of natural justice and consequently direct the 2nd Respondent to delete the vehicles of the petitioners bearing Nos. TS-07-UG-4445, TS-07-UK-2579, TS-07-UG-5279 and TS-02-UB-8888 from the blocked vehicles list in Sand Sale Management and Monitoring System website. 3. The case of the Petitioner in brief, is as follows: (a) The petitioners are the owners of vehicles (lorries) bearing Nos. TS-07-UG-4445, TS-07-UK-2579, TS-07-UG-5279 and TS-02-UB-8888, they have got valid goods vehicle permit to operate the same in entire state and all the documents of the vehicle are also valid. The major business of the petitioners is transportation of sand on hire basis by engaging their vehicles by the sand purchasers. (b) Over the past several years, the Government of Telangana introduced online booking for purchase of sand from its official sand reaches which is managed by the TSMDC. (c) Eventually, the petitioners' vehicles were alleged to have been involved in the transportation of sand on the fake way bills being purchased by them from one Yeddula Kiran Kumar by paying money and a crime is registered vide FIR No. 104 of 2023 under Sections 379, 420, 468, 471 IPC, 21 (1) of the Mines And Minerals (Development And Regulation) Act, 1957. (d) Admittedly as per the contents of FIR and Panchanama dated 20.03.2023, no such fake way bills are recovered from them or from their vehicles. In fact, the petitioners’ vehicles were not even present with load of sand and none of the names of the petitioners were mentioned in FIR as accused. However, on the alleged confession statement of Yeddula Kiran Kumar, the petitioners’ vehicle numbers were also mentioned and seized. (e) Subsequently, as there was a threat of arrest, the petitioners filed Crl. Pet. Nos. However, on the alleged confession statement of Yeddula Kiran Kumar, the petitioners’ vehicle numbers were also mentioned and seized. (e) Subsequently, as there was a threat of arrest, the petitioners filed Crl. Pet. Nos. 3165 of 2023 and 6057 of 2023 before this Court seeking to quash the crime and the court having found a prima-facie in the petitioners’ favour, directed the 4th Respondent to follow the procedure us 41(A) of the Cr.P.C. and also directed the petitioners to execute a personal bond for an amount of Rs. 50,000/- each and shall cooperate with the investigation officer in concluding the investigation. Thus, the petitioners were released on bail. (f) Since the vehicles of the Petitioners were seized, a petition was filed seeking release of the vehicles and the same was allowed and the vehicles were released on 25.07.2023, 11.07.2023 and 24.04.2023. However, the 2nd Respondent Corporation blocked the vehicle numbers of the petitioners in its website under the headings of blocked vehicles disabling them from online booking of the sand. Upon enquiry, the petitioners were informed that as per the information furnished by the 4th Respondent, that these vehicles are involved in a crime and that unless the case in Crime No. 104 of 2023 is closed or finally decided, blocking of these vehicles will not be deleted from the website. Except the same orally, no written orders are passed. (g) Furthermore, before blocking the vehicles of the petitioners in the website, prohibiting them from booking the sand, no notice is issued, no explanation is called for and no orders are passed. Therefore, the action of the 2nd Respondent is violative of principles of natural justice. Hence, this Writ Petition. 4. The pleas put forth by the 2nd respondent as per the written instructions filed by the 2nd respondent-Vice Chairman and Managing Director of Telangana State Mineral Development Corporation Limited dated 20.07.2023 vide reference TSMDC/Legal/WP No. 18619/2023, and adopted in the present writ petition by the 2nd respondent in particular, Paras 9 to 13 read as under: “9. Station house officer, Matwada, Police station who is the seizing authority as per the TSSMR-2015 vide Letter No. C No. 104/Cr/INPT-MAT/2023, dated 07.04.2023 sent letter to TSMDC regarding blockage of vehicles for creating fake way bills and transporting sand illegally and causing loss to the Government in deceitful manner. SHO, registered a case in Cr. Station house officer, Matwada, Police station who is the seizing authority as per the TSSMR-2015 vide Letter No. C No. 104/Cr/INPT-MAT/2023, dated 07.04.2023 sent letter to TSMDC regarding blockage of vehicles for creating fake way bills and transporting sand illegally and causing loss to the Government in deceitful manner. SHO, registered a case in Cr. No. 104/2023, U/Sec 379, 420, 468, 471 IPC Sec. 21 (1) Mines & Mineral Act, and issued FIR to the court and case is under investigation. 10. Accordingly, as per the request of Station House officer, Matwada the TSMDC had blocked 55 vehicles in order to prevent them from committing further offences. 11. Further it is submitted that as per G.O.Ms. No. 3, dated 08.01.2015 it is clearly stated that “any sand lorry found without valid way bill issued by TSMDC or by the pattadar will be deemed illegal and the vehicle shall be seized. 1. Any machinery and vehicle shall be seized used for extraction and transportation of sand in contravention of these rules shall be seized. 2. The following officer in the state are authorized under these rule to seize a machinery or vehicle involved in illegal sand extraction and transportation. (a) Sub-collector/revenue divisional officer. (b) Tahsildar (Concerned) Mandal. (c) Sub-Divisional Police Officer (Concern) (d) Station House Officer (Concern) (e) District/Divisional Panchayath Officer (f) Assistant Director of Mines & Geology (Concern) (g) Any other officer nominated by the District Collector (Concern). 12. Police have already identified the persons who are generating fake waybills and arrested them. As per the recommendation of the police, we have blocklisted the vehicles which involved in illegal sand transport. 13. Further submitted that based on the Security reasons and ground that the crime registered against the petitioners and past history in the online, listed block petitioners vehicles for 6 months without any show cause notices, so as to not repeat the same things in future for illegal sand transportation and creating fake way bills etc. After completion of the 6 months the petitioners vehicles will be removed from block list without any application.” 5. Government of Andhra Pradesh, G.O.Ms. No. 71 dated 04.09.2019, in particular, the relevant paras are extracted herein: “(15) Ban on sand transportation across the border: Transportation of sand beyond the borders of the state is prohibited. After completion of the 6 months the petitioners vehicles will be removed from block list without any application.” 5. Government of Andhra Pradesh, G.O.Ms. No. 71 dated 04.09.2019, in particular, the relevant paras are extracted herein: “(15) Ban on sand transportation across the border: Transportation of sand beyond the borders of the state is prohibited. (16) Offences and Penalties: (f) Officers authorized to levy, collect penalties and seizure of vehicles from the person involved in illegal mining/stocking/hoarding/selling/block marketing in the State authorized under these rules are as follows: (i) District Collector (Concerned) (ii) Joint Collector (Concerned) (iii) Superintendent of Police (Concerned) (iv) Additional Superintendent of Police/OSD (Concerned) (v) Sub-Collector/Revenue Divisional Officer (Concerned) (vi) Tahsildar (Concerned) Mandal (vii) Sub-Divisional Police Officer (Concerned) (viii) Station House Officer (Concerned) (ix) District/Divisional Panchayat Officer (x) Deputy Director of Mines and Geology (Concerned) (xi) Assistant Director of Mines and Geology (Concerned) (xii) Any other officer nominated by District Collector (Concerned).” 6. The relevant Sections 451 and 457 of the Code of Criminal Procedure reads as under: “451. Order for custody and disposal of property pending trial in certain cases - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation - For the purposes of this section “property” includes: (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 457. Explanation - For the purposes of this section “property” includes: (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 457. Procedure by police upon seizure of property: (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.” 5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial. (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary. (3) if the property is subject to speedy and natural decay, to dispose of the same.” 7. The Apex Court in the Judgment dated 01.10.2012 reported in Sunderbhai Ambalal Desai vs. State of Gujarat, (2002) 10 SCC 283 with C.M. Mudaliar vs. State of Gujarat, observed in Paras 7, 15,17 and 18 read as under: 7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody. 3. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody. 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail. 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. Vehicles 15. Learned Senior Counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, a number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to their owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 17. In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. If the said vehicle is insured with the insurance company then the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. DISCUSSION AND CONCLUSION: DISCUSSION: 8. It is the specific plea of the learned counsel for the 2nd respondent that the 4th respondent-Station House Officer, Matwada Police Station who is the seizing authority as per the TSSMR 2015 vide Letter No. C. No. 104/Cr/INPT-MAT/2023, dated 07.04.2023 had forwarded letter to T.S.M.D.C. Hyderabad i.e. the 2nd respondent herein, regarding blockage of vehicles due to creation of fake way bills and for transportation of sand illegally and causing loss to the Government in deceitful manner. That the Station House Officer, registered a case in crime No. 104 of 2023 under Sections 379, 420, 467, 468, 471 IPC, and Section 21(1) and (2) of the Mines And Minerals (Development And Regulation) Act, 1957 and issued FIR to the Court and that the case is under investigation and as per the request of the Station House Officer, Matwada, the TSMDC had blocked 55 vehicles in order to prevent them from committing further offence. 9. It is further specifically contended on behalf of the 2nd respondent that based on security reason’s and duly considering the fact that crime had been registered against the petitioners it was decided to block the petitioners vehicles for six months so as to ensure that the same things are not repeated in future and to ensure illegal transportation of sand by creating fake way bills and that after completion of six months, the petitioners vehicles will be removed from blocklist without any application being filed by the concerned seeking release of the said vehicles. 10. This Court opines that the 2nd respondent herein has no power or authority to blocklist the petitioners’ vehicles. 10. This Court opines that the 2nd respondent herein has no power or authority to blocklist the petitioners’ vehicles. The specific contention of the counsel for the 2nd respondent that the petitioners’ vehicles will be removed from blocklist without any application being filed by the petitioners, requesting the 4th respondent to remove the petitioners’ subject vehicles from blocklist after completion of six months in view of the crime registered against the petitioners so that the petitioners would not repeat the same in future and indulge in any illegal transportation of sand by creating fake way bills is not tenable since the said plea cannot be the ground to blocklist the petitioners subject vehicles without any power or authority vested under law. Neither the counsel for the 2nd respondent places before this Court any rule position authorizing the 2nd and 4th respondent authority in blocklisting the petitioners subject vehicles i.e. TS-07-UG-4445, TS-07-UK-2579, TS-07-UG-5279 and TS-02-UB-8888 nor disputes the fact that the petitioners had not been put on prior notice prior to blocklisting the petitioners vehicles pursuant to the crime in connection with FIR No. 104 of 2023 dated 10.03.2023 registered by the 4th respondent herein against the petitioners under Sections 379, 420, 467, 468, 471 IPC and Section 21(1) and (2) of the Mines And Minerals (Development And Regulation) Act, 1957. CONCLUSION: 11. Taking into consideration that the action of the 2nd and 4th respondent authority in blocklisting the petitioners subject vehicles admittedly even according to the 2nd respondent authority has been without issuing notice to the petitioners and in clear violation of principles of natural justice, this Court opines that the same is contrary to the law laid down by the Apex Court Judgment reported in State of Orissa vs. Dr. Binapani Dei and Others, AIR 1967 SC 1269 on the point that any order which has civil consequences must be passed after giving opportunity of hearing to the party. It is settled Law that any authority must act fairly and should give the person proceeded against the reasonable opportunity from making his objection against the proposed action to be initiated against the said person. It is settled Law that any authority must act fairly and should give the person proceeded against the reasonable opportunity from making his objection against the proposed action to be initiated against the said person. This Court opines that the action of the 2nd respondent is in clear violation of principles of natural justice since the respondents 2 and 4 failed to issue prior notice to the petitioners prior to blocklisting the petitioners subject vehicles and even failed to provide a reasonable opportunity to the petitioners prior to the unilateral blocklisting of the petitioners subject vehicles, without any jurisdiction and the said action in fact is totally unwarranted and uncalled for. Even in the written instructions filed by the 2nd respondent, the 4th respondent failed to justify the said action of block listing the petitioner’s vehicle by the 2nd and 4th respondents herein by tracing their said power to do so by referring to the relevant legal provision permitting them to do so. It is the bounden duty cast upon the respondents 2 and 4 to act judicially and to keep the petitioners herein informed of the case of the State and the evidence in support thereof and to provide a reasonably fair opportunity to the petitioners of meeting their case before a decision adverse to the petitioners is taken. 12. A bare perusal of the paragraphs of the Judgment of the Apex Court reported in 2002 (10) SCC 283 (referred to and extracted above) clearly indicates that the Apex Court opined that it is of no use to keep seized vehicles at police stations for a long period since the vehicles become junk day by day and the owner of the vehicles should not suffer because of its remaining unused. 13. Taking into consideration the above referred facts and circumstances of the case and the observations made by the Apex Court in the Judgment reported in Sunder Bhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283 C.M. Mudaliar vs. State of Gujarat, dated 01.10.2002, in particular at Para 7, 15, 17 and 18 (referred to and extracted above) on the point that the owner of the vehicle should not suffer because of its remaining unused and further that if the vehicles are kept unattended the vehicles become junk day by day and also the view taken by the Apex Court in State of Orissa vs. Dr. Binapani Dei and Others, AIR 1967 SC 1269 dated 07.02.1967, on the point that any order which has civil consequences must be passed after giving reasonable opportunity of hearing to the party concerned, the Writ Petition is allowed as prayed for and respondent No. 2 is forthwith directed to delete the vehicles of the petitioners bearing Nos. TS-07-UG-4445, TS-07-UK-2579, TS-07-UG-5279 and TS-02-UB-8888 from the blocked vehicles list in Sand Sale Management and Monitoring system Website and permit the petitioners to forthwith operate the said vehicles. However, there shall be no order as to costs. 14. Miscellaneous Petitions pending, if any, shall stand closed.