IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 885 of 2010() 1. C.T.SHAN, AGED 29 YEARS, Petitioner Vs 1. STATE OF KERALA REP. BY ITS Respondent 2. THE DISTRICT COLLECTOR, 3. SUB INSPECTOR OF POLICE, For Petitioner :SRI.K.S.HARIHARAPUTHRAN For Respondent : No Appearance The Hon'ble the Chief Justice MR.J.CHELAMESWAR The Hon'ble MR. Justice K.T.SANKARAN The Hon'ble MR. Justice P.N.RAVINDRAN Dated :21/07/2010 O R D E R J.CHELAMESWAR, C.J. , K.T.SANKARAN & P.N.RAVINDRAN, JJ. W.A.Nos.885, 1162 of 2010, W.P(C)Nos.16624, 18384, 19809, 19817, 19823, 19838, 19839, 19842, 19870, 19872, 19926, 19935, 19942, 19966, 19981, 19983, 19991, 20052, 20081, 20082, 20083, 20084, 20097, 20134, 20135, 20150, 20263, 20676, 20678, 20701, 20719, 20797, 20803, 20830, 20831, 20843, 20947, 20971, 21003, 21017, 21018, 21019, 21029, 21065 of 2010 Dated this the 21st day of July, 2010 JUDGMENT
J.Chelameswar,C. J.
This batch of writ appeals and the writ petitions raise a common question. Cargo vehicles owned by the various persons (writ appellants or writ petitioners, as the case may be) were seized by the authorities functioning under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 on the allegation that these vehicles were found transporting "river sand" in contravention of some provision or other of the above mentioned enactment. Section 23 of the said Act authorises the confiscation of a vehicle which is found transporting sand without complying with the provisions of the Act. Such a confiscation was required to be made by the District Collector under Rules 27 and 28 of the Rules known as W.A.No.885 of 2010 and connected cases Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002.
2. The case of all the petitioners and the appellants before us is that the confiscation proceedings before the Collector take an unduly long time and during the pendency of such proceedings the vehicles seized are left unprotected and exposed to the vagaries of the weather. Therefore, in the event even if the confiscation proceedings result in an order favourable to the owner of the vehicle, though the owner of the vehicle in law is entitled to take back the custody of the vehicle, the vehicle would get damaged and the value of the vehicle would be depreciated. Therefore, these writ petitions/appeals praying that the owners of the vehicles be given the interim custody during the pendency of the proceedings under the above mentioned Act.
3. It may be mentioned here neither the Act nor the Rules provide for the interim custody of the vehicles. In the absence of any specific provision normally a vehicle seized by the State on the allegation of the contravention of some provision of the law is required to be in the custody of the State until the adjudication into the accuracy of such allegation is completed. Though under some W.A.No.885 of 2010 and connected cases enactments specific provisions exist envisaging interim custody of the vehicle during the pendency of the confiscation proceedings to be given to the owner of the vehicle on some terms and conditions. The Kerala Abkari Act is one such provision.
4. This Court in exercise of the jurisdiction under Article 226 of the Constitution of India from time to time took a view that interim custody of the vehicles seized under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 may be given to the owners during the pendency of the proceedings under Section 23 of the Act. However, regarding the terms and conditions subject to which such interim custody is to be given there is a divergence of opinion. A Division Bench of this Court in Writ Appeal No.2579 of 2009 by judgment dated 4th December 2009 opined as follows:-
"7. Having regard to the fact that large number of cases involving illegal transportation of sand in violation of the provisions contained in Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2001, we are of the view that following guidelines/directions have to be issued with regard to the release of vehicles that may be involved in such cases.
W.A.No.885 of 2010 and connected cases i. The vehicle shall be released to the registered owner on his depositing half of the total value of the vehicle as may be assessed by the Assistant Executive Engineer (Mechanical), PWD as provided under Rule 4 of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 or the Assistant Motor Vehicles Inspector. ii. The registered owner shall execute a bond furnishing security for the balance amount to the satisfaction of the District Collector concerned. He shall further undertake to produce the vehicle as and when directed and also not to transfer/alienate the vehicle pending the proceedings. It shall also be undertaken by the registered owner that he will not cause any damage to the vehicle so as to reduce its value and utility. iii. If the vehicle gets involved in a similar offence after such release, it shall be liable to immediate seizure, in which event it shall not be released until finalisation of the proceedings.
8. We make it clear that the above guidelines/directions are not exhaustive. They are only intended to ensure that adequate measures are taken to prevent recurrence of such offences under the Act."
W.A.No.885 of 2010 and connected cases However, another Division Bench in Writ Appeal No.499 of 2010 by judgment dated 17th March 2010 opined that the interim custody of such vehicles shall be given to the owners on condition that the owner remits an amount of Rs.25,000/- and also on a further condition that an endorsement made in the RC book of the vehicle that there is an adjudication under the above mentioned Act pending against the vehicle.
5. In view of such divergence of opinion, by order dated 4th June 2010 in Writ Appeal No.885 of 2010, two of us, J.Chelameswar, C.J. and P.N.Ravindran,J., thought it fit that the matter be heard by a Full Bench to resolve the conflict occurring in the above referred two decisions of this Court. Subsequently a number of writ petitions wherein a similar question was raised came to be referred to a Division Bench by the learned single Judges of this Court on the ground of the above mentioned reference to the Full Bench. That is how all the various writ petitions in this batch came to be listed before the Full Bench.
6. When the matters were taken up the learned Additional Advocate General brought to the notice of this Court that the reference W.A.No.885 of 2010 and connected cases becomes almost academic in view of the subsequent developments, ie., an Ordinance issued by the State of Kerala, (Ordinance No.31 of 2010) by which the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 is sought to be extensively amended. The relevant for the present purpose is Section 10 of the Ordinance by which the original Section 23 is sought to be substituted by Sections 23, 23A to 23D, which provide for an elaborate mechanism providing for appellate and revisional remedies against the orders of confiscation of vehicles.
7. The learned counsel appearing for the various petitioners/ appellants herein also submitted that in view of the amendment in the law different considerations may emerge regarding the interim custody of the vehicles such as the one involved in the present batch of cases. Learned Counsel however submitted that in so far as the vehicles seized before the amendment Act are concerned, the order of the Division Bench in W.A.No.499 of 2010, which directed the State to give interim custody of the vehicle seized under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 on condition that the owner remits an amount of Rs.25,000/- is a W.A.No.885 of 2010 and connected cases reasonable order in view of Section 20 of the Act which prescribes a penalty for the contravention of the provisions of the Act stipulates that any person found guilty of the contravention of any provision of the Act is liable for punishment of imprisonment for a term of which may extend to two years or with fine which may extend to twenty-five thousand rupees. Therefore, it is argued that the owner of a vehicle which is seized on the ground that it was found involved in some activity in contravention of the provisions of the above mentioned Act, cannot be mulcted with a liability greater than the one indicated in Section 20.
8. The learned Additional Advocate General, on the other hand, relied upon two decisions of the Supreme Court in State of Karnataka v. K.Krishnan, (2000) 7 SCC 80 and Section Forestor and another v. Mansur Ali Khan, (2004) 1 SCC 293. In State of Karnataka v. K.Krishnan, (2000) 7 SCC 80 dealing with the aspect of granting interim custody of the vehicle found involved in the forest offence under the Karnataka Forest Act, 1963 the Supreme Court held as follows:-
"The liberal approach in the matter would perpetuate the commission of more offences with W.A.No.885 of 2010 and connected cases respect to the forest and its produce which, if not protected, is surely to affect mother earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to the party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come."
W.A.No.885 of 2010 and connected cases The later decision also placed heavy reliance on the said decision and followed the said decision.
9. We regret our inability to accept the submission made by the learned counsel for the petitioner for the grant of interim custody of a vehicle which is allegedly involved in the contravention of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 on condition that the owner remits an amount of Rs.25,000/- pending the confiscation proceedings. In our opinion such a view canvassed by the petitioners supported by the Division Bench of this Court in Writ Appeal No.499 of 2010 is not in tune with the two decisions of the Supreme Court referred to above. Apart from that Section 20 only prescribes the penalty for the contravention of the provisions of the Act to be imposed on the violator of the law. The vehicle which is used for commission of a contravention of the Act is dealt with separately under Section 23 and the law specifically provided for confiscation of such vehicle.
10. Eventually if the vehicle is confiscated, the owner of the vehicle would lose the entire value of the vehicle. It is a different matter in a given case, the vehicle may be liable for confiscation or not W.A.No.885 of 2010 and connected cases depending upon the evidence in that case. While making an order for interim custody of the vehicle in favour of the owner, against whom proceedings for confiscation of the vehicle are pending, the Court will not only take into consideration the interest of the owner of the vehicle, but also the interest of the State, the object of the legislation and larger public interest which is sought to be achieved by the confiscation of the vehicle. The full value of the vehicle must be safeguarded before directing the State to part with the custody of the vehicle in favour of the owner. The very fact that the legislature of Kerala thought it fit to bring in a special legislation to prevent indiscriminate excavation of sand from the river banks indicates the magnitude of the problem.
11. In the circumstances, we are of the opinion that while making any order for interim custody of the vehicle confiscated under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, necessary condition for safeguarding the full value of the vehicle is to be stipulated.
12. Having regard to the facts and circumstances of the case, we are of the opinion that interim custody of the vehicle can be W.A.No.885 of 2010 and connected cases granted on condition that the owner of the vehicle deposits 30% of the value of the vehicle as determined by the appropriate authority under the Motor Vehicles Act in cash and a further condition that the owner of the vehicle should provide either a bank guarantee or immovable property security for the balance of the value of the vehicle. The amount so deposited and the security furnished would follow the final outcome of the confiscation proceedings.
13. We also deem it appropriate to direct that the proceedings under Section 23 of the above mentioned Act confiscating the vehicle shall be concluded within six weeks from the date of seizure of the vehicle as far as possible, in which case the need to consider the interim custody of the vehicle may not normally arise. But for any reason the authorities under the Act are not able to conclude the proceedings within the period of six weeks mentioned above, the interim custody of the vehicle shall be given to the owner on the conditions specified earlier. It is also made clear that to avoid anycontroversy and the allegations of undue delay on the part of either party to the proceedings, the competent authority shall put the owner on notice within a period of three days of the date of seizure and the W.A.No.885 of 2010 and connected cases owner or any other person interested in the vehicle shall file his objections to the confiscation within a week thereafter.
14. In so far as the vehicles which are subject matter of controversy in the matters listed before us today, we direct the respondents to give interim custody of the vehicles to the respective owners, subject to the conditions specified above within a period of one week from the date of production of this order.
All the writ appeals and the writ petitions are disposed of as indicated above.
J.CHELAMESWAR, Chief Justice K.T.SANKARAN, Judge P.N.RAVINDRAN, Judge.
J.CHELAMESWAR, C.J. , K.T.SANKARAN & P.N.RAVINDRAN, JJ.
W.A.Nos.885, 1162 of 2010, W.P(C)Nos.16624, 18384, 19809, 19817, 19823, 19838, 19839, 19842, 19870, 19872, 19926, 19935, 19942, 19966, 19981, 19983, 19991, 20052, 20081, 20082, 20083, 20084, 20097, 20134, 20135, 20150, 20263, 20676, 20678, 20701, 20719, 20797, 20803, 20830, 20831, 20843, 20947, 20971, 21003, 21017, 21018, 21019, 21029, 21065 of 2010
JUDGMENT 21st July, 2010