IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(C).No. 37087 of 2010(I) -------------------------- PETITIONER: --------------- PRASAD, S/O. SIVIARAMAN, MULLASSERRY HOUSE, VALLAMKULAM KIZHAKKU MURI, ERAVIPEROOR VILLAGE, PATHANAMTHITTA DIST. BY ADV. SRI.T.P.PRADEEP RESPONDENTS: --------------- 1. INSPECTOR OF POLICE, THIRUVANANTHAPURAM RANGE. 2. SUPERINTENDENT OF POLICE, PATHANAMTHITTA. GOVERNMENT PLEADER, SHRI P.K.RAVEENDRA BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF the RESTRICTION ORDER DT.22.6.2010 EXT.P2 : TRUE COPY OF THE SHOW CAUSE NOTICE DT.9.12.2009 EXT.P3 : TRUE COPY OF THE EXPLANATION DT.22.12.2009 EXT.P4: TRUE COPY OF THE ORDER OF THE ADVISORY BOARD DT.16.8.2010 RESPONDENT'S EXHIBITS : NIL // TRUE COPY// PA TO JUDGE K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.37087 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2011 JUDGMENT K.M. Joseph J., This petition is filed with a prayer to quash Ext.P1 order passed under Sec.15(1) of Kerala Anti Social Activities Prevention Act 2007. 2. Three crimes are relied against the petitioner by the 1st petitioner to classify the petitioner as a 'known goonda'. Crime No.71 of 2009 of Thiruvalla Police Station was registered under Sec.20 and 21 of Kerala River Bank Protection and Sand Mining Control and Regulation Act 2001. 3. We heard learned counsel for the petitioner and learned senior Government Pleader. 4. Learned counsel for the petitioner would contend that the W.P.(C) No.37087 of 2010 :2: Authority had acted illegally in reckoning Crime No.71 of 2009 for the purpose of classifying him as a 'known goonda'. He complains that it cannot be relied for the purpose of treating the petitioner as a 'known goonda'. He would further contend that there was no independent witnesses while seizure was effected. He also drew our attention to the averments in the writ petition as follows: “Allegation is that the lorry owned by the petitioner was used for transportation of river sand. Crime was registered under Sec.20,21 of Kerala River Bank Protection and Sand Mining Control and Regulation Act. The lorry was seized at 2.40 a.m. without the presence of any witnesses and only one Jose and one Anil Kumar were in the array of accused in FIR. Later petitioner was implicated as 3rd accused and final report was given.” 5. The petitioner drew our attention to the counter affidavit filed on behalf of the first respondent. Therein it is stated that: “Thiruvalla Police station Crime 71/09 W.P.(C) No.37087 of 2010 :3: U/s.20,21 of Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001 reported on 22.1.2009 from Thottabhagom. Complainant: R.Jayaraj, CI of Police, Thiruvalla. The case in brief is that the complainant found that the accused drove a Tata 609 Mini Lorry illegally filled with river sand without any proper record. The accused Prasad (petitioner) was arrested on 24.3.2009 and bailed out. After investigation the case was charge sheeted on 9.4.2009 before the Hon'ble Judicial First Class Magistrate Court Thiruvalla and the case is pending trial as CC 463/09.” 6. Going by the averments in the writ petition, the case of the petitioner is that there were no witnesses. He drew our attention to the charge-sheet and pointed out that it will show that there are no independent witnesses and there are only police witness. In this context the learned counsel for the petitioner relied on judgment of this Court in Vinija v. State of Kerala (2009(3) KLT 110). 7. Learned senior Government Pleader is not in a position to W.P.(C) No.37087 of 2010 :4: dspute before us the contention that there are no independent witness in respect of seizure in Crime No.71 of 2009. The report of the Police Officer cannot be reckoned in terms of the proviso unless seizure is made in the presence of independent witnesses. Going by the unrebutted allegations in the writ petition, it is clear that there are no witnesses. If one goes by the chargesheet witnesses are police officers. The expression in the presence of 'witnesses' can be understood only as non-police witnesses. Either way the petitioner must succeed. 8. In such circumstances, we allow the writ petition and quash Ext.P1 restriction order. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/