IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 W.A.No. 1786 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.7671/2008 DATED 04/07/2008 .................... APPELLANT/PETITIONER: ------------------------------------ SHAJU.E.D, AGED 42 YEARS, S/O.DEVASSY, EDASSERY HOUSE, PALAYAMPARAMBU, KADUKUTTY, THRISSUR DT. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT/RESPONDENT: ------------------------------------------- SUB INSPECTOR OF POLICE, MALA POLICE STATION, MALA, THRISSUR DT. BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A. No. 1786 of 2008 ------------------------------------------ Dated, this the 18th day of September, 2008 JUDGMENT H.L.Dattu, C.J. Petitioner in W.P.(C) No.7671 of 2008 has presented this writ appeal, being aggrieved by the orders passed by the learned Single Judge dated 4th of July, 2008. By the impugned order, the learned Single Judge has rejected the writ petition. However, has granted liberty to the petitioner to make an appropriate application before the learned Magistrate to release the sand seized by the police authority. Further, the learned Judge has directed the learned Magistrate that if and when such an application is filed, the same will be considered in accordance with law as expeditiously as possible, at any rate, within one month from the date of filing of such an application. (2) The brief facts are: The respondent - Sub Inspector of Police, Mala Police Station has filed a criminal complaint before the jurisdictional Magistrate in Crime No.63 of 2008 against the petitioner for violation of the provisions of Section 4(1A) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter for the sake of brevity referred to as 'the Act'). When the writ petition was filed, the criminal case was still pending and therefore, one of the prayers in the writ petition was to direct the respondent to permit him to compound the offence departmentally in lieu of prosecution W.A.No.1786 of 2008 2 proceedings. However, when the petition was taken up for hearing, the said prayer had become infructuous, since during the pendency of the proceedings, the respondent had accepted the offer made by the petitioner and had compounded the offence departmentally, as provided under Section 23A of the Act. (4) The other prayer in the petition was to direct the respondent to release the sand seized on furnishing sufficient security. (5) In support of this relief in the petition, the primary contention of the petitioner before the learned Single Judge was, that, since he has compounded the offence departmentally in lieu of the prosecution proceedings, the sand seized by the respondent requires to be released. This contention of the petitioner is negatived by the learned Single Judge. That is how the petitioner is before us in this writ appeal. (6) The learned counsel for the appellant would submit that since the petitioner has compounded departmentally the offence alleged against him, he is entitled for release of the sand seized by the respondent. (7) In order to answer the contention of the Appellant's learned counsel, Section 23A of the Act requires to be noticed. It is as under: “23A. Compounding of offences. (1) Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that W.A.No.1786 of 2008 3 offence, on payment to that person, for credit to the Government, of such sum as that person may specify; Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under sub-section (1) no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith.” (8). Sub-section (1) of Section 23A of the Act, permits the authorised officer who is authorised to make a complaint before the jurisdictional Magistrate Court for the offences committed under the Act to compound the offence departmentally in lieu of prosecution proceedings either before or after the institution of the prosecution proceedings. Sub-section (2) provides that where the offence is compounded under sub-section (1), no proceedings or further proceedings shall be taken against the offender in respect of the offence compounded. (9). Section 21 of the Act provides for penalties. Sub-section (1) says, any person who contravenes sub-section (1) or (1A) of Section is liable for punishment which may extend to two years or with fine which may extend to twenty five thousand rupees or with both. Sub-section (1) of Section 4 mandates that no person shall undertake any prospecting or mining operations without a valid licence or permit. Sub-section (1A) of Section 4 says, that no W.A.No.1786 of 2008 4 person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of the Act and the Rules framed thereunder. Sub-section (4), (4A) and (5) of Section 21, provides for the procedure for dealing with minor mineral and the vehicle/vessel seized if there is contravention of the provisions of the Act. Sub-section (5) authorises the State Government to recover the mineral from a person who raises any mineral without authority of law or where such person has already disposed of the mineral, the price thereof including rent, royalty,etc. Thus, the section provides two types of penalties. One the person who contravenes the provisions of the Act and the second, the procedure for dealing with the mineral and the vehicle seized whenever a person contravenes the provisions of the Act. (10). In the instant case, the person who had contravened the provisions of sub-section (1A) of Section 4, has compounded the offence departmentally in lieu of prosecution proceedings and in view of specific provisions contained in sub-section (4), (4A) and (5) of Section 21 of the Act, merely because he has compounded the offence, is not entitled for release of seized mineral. (11) Compounding of an offence and the other proceedings under the Act are two different concepts. Compounding is permitted only to save from the prosecution proceedings before the jurisdictional Magistrate and that, in our opinion, would not entitle the petitioner to have the seized materials released in his favour. Keeping this aspect of the matter in view, the learned W.A.No.1786 of 2008 5 Single Judge, in our opinion, has rightly rejected the writ petition. (12) Sri.V.M.Krishnakumar, learned counsel appearing for the appellant, has brought to our notice the observations made by this Court in the case of Moideen v. State of Kerala (2007 (4) KLT 261) and the observation made by a learned Single Judge in Sivapalan v. R.T.O., Kollam (1996 (2) KLT 632). In our view, those decisions would not assist the appellant in any manner whatsoever as those decisions were rendered in a different context altogether and also under different statutory provisions. (13) In view of the above, we do not see any error in the orders passed by the learned Single Judge which would call for our interference. Therefore, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk