IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WA.No. 291 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.1939/2009 Dated 19/01/2009 .................... APPELLANT/PETITIONER: -------------- MOIDEEN T.P., S/O. MOHAMMED T.P., THELEERI PULPARAMBIL HOUSE, CHERUVADI P.O., KOZHIKODE DIST. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT, KOZHIKODE. 2. THE DEPUTY COLLECTOR, (GENERAL), KOZHIKODE DISTRICT, KOZHIKODE. SR. G.P. SRI.BENJAMIN PAUL FOR R1-2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & C.N.RAMACHANDRAN NAIR, J. .................................................................... Writ Appeal No.291 of 2009 .................................................................... Dated this the 6th day of April, 2010. JUDGMENT Ramachandran Nair, J. Order under challenge is Ext.P10 issued by the District Collector directing release of the vehicle on appellant remitting a total amount of Rs.2,75,000/- out of which Rs.25,000/- represents fine and balance is value of the vehicle for the alleged offence committed under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The learned Single Judge found that no interference is called for with Collector's order because Collector has examined all the contentions raised by the appellant. We have heard counsel for the appellant and Government Pleader appearing for the respondents. 2. Counsel for the appellant has relied on medical evidence produced before the District Collector which shows that the driver underwent medical check up and the Doctor offered consultation sometime on the date of seizure of the vehicle. According to the appellant, the Collector was not justified in declining to accept the medical certificate produced by the appellant merely because it W.A. 291/2009 2 contained the time of examination which was normally not shown in medical examination sheets issued by Doctors. Government Pleader supported the order of the Collector saying that the contention is only an afterthought which the appellant unsuccessfully tried to substantiate before the Collector with medical evidence. Admittedly, the sand under transport was covered by a Pass. However, since time of transport was delayed by four hours, the question is whether the same Pass would have been used a second or repeated time for transport of sand. If appellant is involved in repeated transport of several loads of sand under the cover of same Pass, then the violation is very serious. However, the adjudicating authority has not cared to find out the river from where the sand was collected and the probable destination atleast to allege whether the transport time to the destination is such that more than one load could have been transported by noon time when the vehicle was seized. Even though medical evidence was rightly found to be unacceptable as such, we feel appellant is entitled to benefit of doubt because there is no proof of repeated transport of more than one load of sand with the same Pass. Strangely there is no mechanism to cancel a Pass on or after utilisation leaving the possibility of misuse of the same Pass for transport of more than one load of sand. Further, the W.A. 291/2009 3 department has no case of repeated violation of the provisions of the Act or Rules by the very same appellant. We, therefore, feel appellant is entitled to benefit of doubt entitling him for quantum relief. We, therefore, reduce the total amount payable from Rs.2,75,000/- fixed by the District Collector to Rs.1,00,000/- (Rupees one lakh only), out of which Rs.25,000/- will be treated as fine and balance Rs.75,000/- will be treated as value of the vehicle. If appellant has paid Rs.50,000/- in terms of interim order issued by this court on 9.2.2009, then on payment of balance Rs.50,000/- which we direct the appellant to pay within one month from now, the respondents will call for the RC book, make an endorsement that the appellant as registered owner was once involved in an offence under the Sand Mining Act so that for repeated offence with the same vehicle, absolute confiscation or recovery of full value could be ordered. J.CHELAMESWAR Chief Justice C.N.RAMACHANDRAN NAIR Judge pms