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2024 DIGILAW 671 (KER)

Arshad, Son Of Moidu v. State Of Kerala

2024-06-19

BECHU KURIAN THOMAS

body2024
ORDER : Would the penal provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, apply to river sand found on a stationary vehicle? Petitioners have raised the aforesaid question for consideration in this petition filed under section 482 Cr.P.C. 2. Petitioners are the second and sixth accused in C.C.No.3318/2023 on the files of the Judicial First Class Magistrate Court, Tirur. Prosecution alleges that the accused had, on 12.10.2023, removed and transported river sand without any document or permit on a vehicle bearing registration No.KL-08-AE-8245, which had not even paid the periodical tax and was operating without any valid insurance. The vehicle was found parked in the compound house of the third accused, situated next to the Thirunavaya pump house, adjacent to a Kadavu and thereby committed the offences under Section 379 read with Section 34 of the Indian Penal Code, 1860, apart from Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short ‘the Sand Act’), Sections 192A(1) and 196 of the Motor Vehicles Act, 1988, and Section 15 of the Motor Vehicles Taxation Act. 3. Sri. P.M.Ziraj and Adv. Irfan Ziraj, the learned counsel for the petitioners, contended that the prosecution allegations against the petitioners are baseless and are not sustainable in law. It was pointed out that the vehicle was allegedly seized while it was parked in the house of the third accused, and hence, the offences under the Sand Act will not be attracted. The learned counsel also contended that in order to attract the offence under Sections 20 and 23 of the Sand Act, the river sand must have been either extracted from the ‘Kadavu’ or must have been transported, and a stationary vehicle will not come within the purview of the term ‘transport of sand’. The learned counsel further submitted that the vehicle having been parked inside the private property of the third accused, none of the offences alleged are attracted. 4. Sri. Ashi M.C, the learned Public Prosecutor, on the other hand, contended that the first petitioner has indulged in repeated commission of similar offences under the Sand Act and already 12 cases have been registered against him for identical offences. 4. Sri. Ashi M.C, the learned Public Prosecutor, on the other hand, contended that the first petitioner has indulged in repeated commission of similar offences under the Sand Act and already 12 cases have been registered against him for identical offences. It was further submitted that the term ‘transport’ includes even a vehicle loaded with river sand, and any interpretation that defeats the purpose of the statute ought not to be accepted. The learned Public Prosecutor further submitted that the house of the third accused is situated next to a ‘kadavu’ and therefore, the contention raised on the basis of the vehicle seized from a private property has no significance. 5. I have considered the rival contentions. 6. Petitioners and the other accused are alleged to have transported river sand without any permit or pass, as required under law. The Sand Act mandates that the river sand shall be removed only after obtaining permission from the Competent Authority. Admittedly, the petitioners did not possess any such permission. Therefore, the river sand found in the lorry belonging to the second accused was not legally authorised. 7. Section 23 of the Sand Act states that whoever transports sand, without complying with the provisions of the Act shall be punished, and the vehicle used for the transportation be liable to be seized by the Police or Revenue Officials. The word transport cannot be interpreted to mean that the vehicle must be in motion. If such an interpretation is adopted, the whole purpose of the statute would be defeated. 8. Blacks Law Dictionary Eight Edition defines the word “transport” as “to carry or convey from one place to another”. The Oxford Advanced Learners Dictionary Ninth Edition also defines the word ‘transport’ to mean ‘carry’. The words ‘transports sand’ would take in the removal of sand from the river bed or kadavu to the lorry and from the lorry to any other place. Even when a vehicle is loaded with river sand, it will amount to transport of sand, irrespective of whether the vehicle has set in motion or not. The contention of the learned counsel for the petitioners that the vehicle in a stationary mode will not fall within the purview of the Sand Act is too far-fetched and is not legally tenable. 9. The contention of the learned counsel for the petitioners that the vehicle in a stationary mode will not fall within the purview of the Sand Act is too far-fetched and is not legally tenable. 9. Taking into consideration the alleged repeated commission of similar offences by the first petitioner in similar offences, interference under Section 482 of Cr.P.C is not called for. Accordingly, this criminal miscellaneous case is dismissed.