IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 29479 of 2008(H) --------------------------------------- PETITIONER: ------------------- BIJO, S/O. SASI, AGED 26 YEARS, KUZHIMULI HOUSE, LALAM DESOM, PULIYANNOOR VILLAGE, LALAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.P.M.ZIRAJ. RESPONDENTS: ----------------------- 1. DISTRICT COLLECTOR, KOTTAYAM. 2. SUPERINTENDENT OF POLICE, KOTTAYAM. 3. THE SUB INSPECTOR OF POLICE, PALA POLICE STATION, KOTTAYAM DISTRICT. R1 TO R3 BY DIRECTOR GENERAL OF PROSECUTIONS SRI. RAVINDRANATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, ALONG WITH W.P.(C). NO. 31183/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.GIRI, J. ------------------------- W.P.(C).No.29479, 29480, 29529, 29534, 29535, 29549, 29555, 31183, 31379, 34696 & 34705 of 2008 ------------------------- Dated this the 11th day of December, 2008. JUDGMENT Common issues arise for consideration in these cases. Therefore, they have been heard together and are being disposed of by this common judgment. 2. Though challenge in these writ petitions is against the validity of Section 17 of the Anti-Social Activities (Prevention) Act, 2007 {for short “the Act”}, I am not inclined to consider those contentions on merit essentially for two reasons. Firstly, as rightly pointed out by Mr.Raveendranath, learned Additional Director General of Prosecutions, in most of these cases, the State of Kerala has not been made a party. Secondly, the challenge is only against the validity of Section 17 of the Act, which deals with the power, as such, available to the Government and authorised officer, or a person authorized in that regard by the authorized officer, no challenge has been mounted to the definition of 'Anti Social Activity' under Section 2(a) of the Act or the term W.P.(C).NO.29555/08 and con. Cases. :: 2 :: “Depredator of Environment” under Section 2(g) of the Act. Further, I take note of the fact that orders of confiscation are yet to be passed in these cases by the Collector under Section 17(3) of the Act and therefore, it is not necessary to consider the larger questions in these cases. I am, therefore, proceeding to dispose of the writ petitions without considering the question of validity of Section 17 of the Act in question. The contentions raised by the petitioners in this regard are left open. I will refer to W.P.(C)No.29555/08, which to the extent illustrated above, will resolve the disputes involved in the other writ petitions also. 3. The petitioner is the owner in possession of a mini lorry. The 3rd respondent seized the said lorry on 24.9.2008 under Sections 17(1) and 17(2) of the Act, on the ground that vehicle was previously involved twice in an alleged offence of illegal transportation of river sand as evidenced by Ext.P1 seizure mahazar. The petitioner submitted Ext.P2 representation before the Superintendent, for release of the vehicle. This writ W.P.(C).NO.29555/08 and con. Cases. :: 3 :: petition has been filed seeking appropriate reliefs, as mentioned above, including one for a direction to release the vehicle in question to the petitioner. In all these cases, almost similar facts are involved and vehicles have been seized by the concerned Circle Inspector of Police, on the apprehension that it might be used, in future, for anti social activities viz., illegal transportation of river sand. 4. A statement has been filed in W.P.(C) No.29479/08 on behalf of the 1st respondent and reference is made to Annexure A order, by which the concerned District Collector, exercising the powers of the District Magistrate, has authorized the police officers, not below the rank of Circle Inspector, to exercise powers under sub-sections (1) and (2) of Section 17 of the Act. Vehicles have been seized on the strength of such authorization. Annexure B report has been forwarded to the District Magistrate. Proceedings under Section 17(2) (b) have not been taken, in view of the fact that the writ petitions are pending before this court. W.P.(C).NO.29555/08 and con. Cases. :: 4 :: 5. I heard Mr.Ziraj, Mr.P.Shamsuddin and Mr.Zageer Ibrahim, learned counsel for the petitioners and learned Additional Director General of Prosecutions Mr.K.K.Ravindranath. 6. Learned Additional Director General of Prosecutions submits that drastic measures, by way of seizure of vehicles, which are apprehended would be used for extensive and illegal transportation of river sand, is a measure authorized by the Act. Vehicles have been seized and the said fact has been reported to the superior officer. Mr.Ravindranath submits that though the Act does not specifically state as to the manner in which the confiscation has to be done, any proceedings for confiscation will be undertaken only with notice to the owner of the vehicle. If any person other than the owner of the vehicle is in possession of the same, then notice shall be given to such person in possession also and any order of confiscation will be passed only after hearing the persons. W.P.(C).NO.29555/08 and con. Cases. :: 5 :: 7. No doubt, Section 17 of the Act contemplates confiscation of the vehicles, on an apprehension that it might be used for Anti Social Activities and therefore, it is a provision, which has a serious impact on the rights available to the owners of the vehicles. But, I have noted that in none of these cases, the police officers effected any seizure of the vehicles, which were not previously involved in contravention of the provisions of the Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2001 or any other illicit transportation. Section 17 of the Act enables a seizure of the vehicle, on an apprehension or suspicion and to that extent, it is, therefore, a provision which contemplates a serious consequence. In such circumstances, it is imperative that a vehicle, if seized under Sections 17(1) and (2) of the Act, must be immediately reported to the concerned District Magistrate and a copy of the intimation, along with the seizure mahazar, must be contemporaneously intimated to the owner of the vehicles. The District Collectors shall, thereupon, consider the seizure mahazar W.P.(C).NO.29555/08 and con. Cases. :: 6 :: and decide whether confiscation proceedings under Section 17(3) of the Act have to be taken and if it is decided to take such confiscation proceedings, a notice must be sent to the owner/possessor of the vehicle clearly specifying the ground, on the basis of which, the vehicle is proposed to be confiscated. Since the provision contemplates drastic consequences, it is necessary that such notice be sent with as much expedition as possible. I make it clear that generally such notices must be sent latest by one week from the date on which the seizure is effected. 8. On receipt of the notice, the owner/possessor of the vehicle shall file his objections and a minimum of 7 days' time must be granted to the owner/possessor. If such objections are filed within a short time frame, and at any rate, within the time as permitted in that regard by the District Collector, then a hearing must be conducted and a reasoned order explaining the reasons for confiscation, if confiscation is ordered as such, must be passed with as much expedition as possible. W.P.(C).NO.29555/08 and con. Cases. :: 7 :: 9. In such circumstances, I am of the view that such orders must be passed, at least, within three weeks from the date on which the objections are filed by the owner/possessor of the vehicle. 10. I have requested Mr.Ravindranath to impress upon the District Collectors, who are called upon to take decisions, to faithfully adhere to the time frame mentioned above, as far as possible. Non-compliance with the time frame must be an exception and not as a rule. 11. Once such orders are passed, the same shall be forthwith communicated to the owner/possessor of the vehicle and the confiscation is made conditional upon non-payment of any amount, as deemed fit, by the District Collector, then payment of such amount should result in release of the vehicle and in doing so, it will be open to the District Collectors to impose such conditions, inter alia, restricting the use of the vehicles for transporting sand or any other materials, as a condition for release of the vehicles. These are matters, which are W.P.(C).NO.29555/08 and con. Cases. :: 8 :: left to the wisdom of the officers in the rank of District Collectors. 12. Taking note of the parameters outlined above, I am of the view, that the above time frame, as outlined above, will be applicable to the rest of the cases also. 13. In the result, the writ petitions are disposed of with the following directions. (1) The concerned District Collector, in each one of these cases, shall, within one week from the date of receipt of a copy of this judgment , send notice to the petitioners in these cases, clearly indicating the grounds, if any, on the basis of which, they propose to hold that the vehicle in question was or is apprehended that it would be used for Anti Social Activities within the meaning of the Act. (2) A minimum of 7 days time must be granted to the petitioners to file objections thereto. (3) The District Collector shall then post these cases before him for a hearing, W.P.(C).NO.29555/08 and con. Cases. :: 9 :: latest within 10 days from the date on which the objections are received from the owner/possessor and the owner/possessor shall be heard. (4) The proceedings under Section 17(3) shall be passed, latest, within 3 weeks from the date on which such objections are filed. (5) In case, the Collector feels that the confiscation of the vehicle is not necessary or that he is satisfied that the vehicle is unlikely to be used for Anti Social Activities or illegal activities, then it is open to him to pass orders for release of the same. Sd/- (V.GIRI) JUDGE sk/ //true copy//