IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.MC.No. 53 of 2009() ----------------------- CMP.4760/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... PETITIONER(S): ------------------------- THONIKKADAVATH SHOUKATHALI, S/O.MUHAMMED HAJI, PADINHATTUMURI, MALAPPURAM DISTRICT. BY ADV. MR.SUNNY MATHEW RESPONDENT(S): --------------------------- 1. THE TAHSILDAR, ERNAD TALUK. 2. STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, MANJERI POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION MR.V.G.GOVINDAN NAIR & BY PUBLIC PROSECUTOR MR. C.K.SURESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/02/2009 ALONG WITH CRMC.NO.274 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. Nos.53, 274, 319, 321, 331, 349, 376, 434, 460 & 469 of 2009 ------------------------------------------------- Dated this the 10th day of February, 2009 ORDER Not what the ideal law ought to be – not even whether the provisions in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short `the Act') are constitutionally valid and proper; but only ascertainment of the binding law which subordinate courts and functionaries now have to follow is the short question, but the big challenge, before me in these cases. 2. The state of the law – substantive and procedural, in respect of seizure/confiscation of vehicles under the Act and the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 (for short `the Rules') leaves very little to be desired. It is perhaps a very sad commentary on the system that the controversy as to whether the Act and the Crl.M.C. Nos.53 of 2009 & other connected cases -: 2 :- Rules contemplate confiscation or mere seizure of the vehicles continue even now without authentic resolution. Sec.23 of the Act has the heading “confiscation of vehicles”; but the body of the Section speaks of only “seizure”. The conflict between the Malayalam and the English versions of the Act and the Rules, though pointed out by the courts from early days, continues even now. The law wing of the State Government must hang its head down in shame that this unsatisfactory state of the law continues even now though this Act was enacted in 2001 and the Rules were promulgated in 2002. The amount of time, energy and resources that the courts, litigants and the State have been forced to waste on account of such unsatisfactory state of the law is huge and enormous. Every day in this jurisdiction before this Court a number of petitions come up raising claims for release of vehicles and complaining of non-release by the Magistrates. The learned counsel submit that unscrupulous public officials are taking advantage of the ambiguity of the law and are resorting to corrupt practices. But the system remains unmoved. The opportunity for the unprincipled functionaries to indulge in corrupt practices taking advantage of the ambiguity of law should not be afforded by any system wanting good governance. All this does not appear to have trigerred the State Crl.M.C. Nos.53 of 2009 & other connected cases -: 3 :- to take necessary remedial action. The learned Advocate General and the learned Director General of Prosecutions have been requested to appear and explain They were requested to persuade the powers that be to undertake the necessary exercise to bring clarity and certainty into the law on the subject. Nothing has been done though sufficient time has been granted. 3. In these petitions, there is no challenge before me against the constitutional validity on the ground that the law relating to confiscation in the Act and Rules is “imperfect, ineffective, vague, unworkable and expropriatory” in nature as indicated by the Hon'ble Mr. Justice V. Ramkumar in Ahammed Kutty v. State of Kerala (2008 (1) KLT 1068). These petitions relate only to cases where seizure has been effected by the police or revenue officials of vehicles alleging violation of the provisions of the Act and Rules. In some cases seizure has been effected by the police while in some others such seizure has been effected by the revenue officials. In some cases crimes have been registered. In some others crimes have not been registered. In some the seizure of the vehicle has been reported the learned Magistrate; whereas in some others seizure has been reported only to the District Collector. In some cases seized vehicles have been produced before the Magistrate. In some Crl.M.C. Nos.53 of 2009 & other connected cases -: 4 :- others they have not been so produced. In some cases such vehicles produced before the court have been got released by the officials and seizure has later been reported to and/or the vehicles have been produced before the District Collectors concerned. 4. In all these cases the learned Magistrates were approached claiming release of the vehicles. The learned Magistrates have rejected such requests. The learned Director General of Prosecutions submits that the rejection in all these cases is perfectly justified as the jurisdiction to deal with the vehicles seized under the Act and Rules rests exclusively with the District Collectors and not with the learned Magistrates. The learned Magistrates do not have the jurisdictional competence to direct release of the vehicles and, in these circumstances, the orders passed by the learned Magistrates do not warrant interference, submits the learned D.G.P. 5. It may be apposite straightaway to refer to Sec.23 of the Act and Rules 27 and 28 of the Rules which I extract below: “Sec.23. Confiscation of vehicles.- Whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for Crl.M.C. Nos.53 of 2009 & other connected cases -: 5 :- seizure by the Police or Revenue Officials. Explanation.-- The term `vehicle' for the purpose of this section includes `country boat' and raft.” “Rule 27.Procedure for confiscation of vehicles.-- (1) The Police or Revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules. (2) In the case of seizure of vehicle under sub-section (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and on copy to the District Collector. (3) The vehicle may be returned if the owner of the vehicle or the possessor remits an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure. 28. Sale of the vehicle seized.-- (1) The District Collector shall consider every objection submitted within seven days of seizure of any vehicle under rule 27 and the decision of District Collector thereon shall be final. Crl.M.C. Nos.53 of 2009 & other connected cases -: 6 :- (2) In the case of sale of the vehicle under sub-section (1), if the fine and amount under sub-section (3) of section 27 of these rules has not been remitted, the District Collector shall sell the vehicle by auction. (3) The amount received from auction under sub-section (2) shall be credited to the River Management Fund after deducting the expenditure of auction.” As indicated earlier, the Act was enacted in 2001 and the Rules were promulgated in 2002. 6. The courts had opportunity on a number of occasions to consider the nature of the powers of confiscation/seizure under Sec.23 of the Act and the procedure to be followed by the seizing officials and courts. The first of such cases chronologically is the decision in Sanjayan v. Tahsildar (2007(4) KLT 597 (SC)). Though the decision was reported only in 2007 KLT, the judgment was rendered as early as on 17/6/02. The decision is of a Division Bench of this Court and the name of the Supreme Court is erroneously shown in the citation by the KLT. 7. Without referring to the decision of the Division Bench in Sanjayan, (which was not reported in any journal at the Crl.M.C. Nos.53 of 2009 & other connected cases -: 7 :- relevant time) two later decisions of single Benches of this Court in Rahim v. State of Kerala (2002(3) KLT 340) and Moosakoya v. State of Kerala (2005 (4) KLT 331) (referred to as Moosakoya-I) took the view that the District Collector does not have the power under Sec.23 of the Act read with Rules 27 and 28 of the Rules to direct confiscation of the vehicles. These decisions held that the seized vehicle must be produced before the Magistrate under Sec.102 Cr.P.C. or its seizure must be reported to the learned Magistrate. It was for the Magistrate thereafter to pass appropriate orders regarding interim custody of the vehicle, it was held. 8. The incongruity between these decisions was taken note of and a reference was made to the Division Bench on this question as per the order dated 4/6/07 in Crl.M.C.No.1161/07 and connected matters. 9. A Division Bench of this Court in Abdul Samad v. State of Kerala (2007(4) KLT 473) (which is the same as Alavi.P.K. v. District Collector (2007(4) ILR Kerala 221)) took the view that the District Collector has the power of confiscation under Sec.23 of the Act read with the Rules. The learned Judges of the Division Bench held that the seizure under the Act was not to be governed by the provisions of Sec.102 Cr.P.C. and that the Act Crl.M.C. Nos.53 of 2009 & other connected cases -: 8 :- and the Rules provide a complete code for dealing with the properties seized under the Act. The Division Bench therefore overruled the decisions in Rahim and Moosakoya-I (supra). That decision was appealed against and the Supreme Court in Special Leave to Appeal (Civil) No.5098/08 has stayed the operation of the said judgment. Later, a two Judge Bench perceiving conflict between Sanjayan and Abdul Samad/Alavi made a reference order dated 8/2/08 in W.P.(c) No.2806/07 and connected matters. The matter thus reached the Full Bench. It was then brought to the notice of the Full Bench that an appeal against the decision of the Division Bench Alavi/Abdul Samad is pending before the Supreme Court and, in these circumstances, the reference was not answered. By order dated 23/7/08 all the matters were referred back by the Full Bench to the Division Bench for consideration and decision. 10. While so, a learned single Judge of this Court made a further reference of the same question which was decided in Alavi/Abdul Samad on the ground that the Division Bench in Alavi/Abdul Samad had omitted to consider the fact that as per Sec.24 of the Act the offences under the Act are cognizable. The same Division Bench which rendered Abdul Samad/Alavi considered the question again afresh in Moosakoya v. State of Crl.M.C. Nos.53 of 2009 & other connected cases -: 9 :- Kerala (2008(4) KLT 538) (hereinafter referred to as `Moosakoya-II’). The learned Judges of the Division Bench considered the fresh reference made by the learned Single Judge and reiterated that the seizure and confiscation of vehicles under the Act and the Rules are to be governed only by the Act and Rules and the seizures under the Act and Rules are not to be reckoned as ones in exercise of the powers under Sec.102 Cr.P.C. Specific and unambiguous directions were issued by the Division Bench in para-3. I shall advert to those specific directions later. 11. It appeared that the controversy stood resolved by that authentic pronouncement of the Division Bench and the peremptory and clear directions issued in para-3 of the said judgment. 12. But later a single Bench of this Court in Ahamedkutty v. State of Kerala (2008 (1) KLT 1068) again felt that that Bench was competent to consider the question afresh notwithstanding the decisions in Alavi/Abdul Samad and Moosakoya-II and proceeded to consider the question afresh. The view was taken that the jurisdiction rests with the Magistrates, notwithstanding the two decisions of the Division Bench referred above, to deal with the applications for release of Crl.M.C. Nos.53 of 2009 & other connected cases -: 10 :- vehicles seized for alleged violation of the Act and the Rules. Still later, another single Bench of this Court in Subramanian v. State of Kerala (2009 (1) KLT 77) was called upon to consider the constitutional validity of the Act on certain other grounds. The learned single Judge by observations in para-52 of that judgment took the view that the decision in Ahamedkutty cannot be held to be binding law and cannot be followed in the light of the earlier decisions in Alavi/Abdul Samad and Moosakoya-II. I shall advert to that passage later. 13. It is in the light of the above precedents that the question comes up for consideration now before this Court. The learned counsel have been heard. Exhaustive arguments have been advanced. After considering all the relevant circumstances I have no hesitation whatsoever to agree with the learned D.G.P. that I am bound by the decisions in Alavi/Abdul Samad and Moosakoya-II. To me, it appears too late in the day for this single Bench to take the view contrary to the findings/conclusions of the Division Bench in these two decisions that there is no power of confiscation for the District Collector under the Act and Rules. Even in Sanjayan (supra) it appears to me to be evident that that Division Bench also had only taken the view that confiscation is possible under the provisions of the Act Crl.M.C. Nos.53 of 2009 & other connected cases -: 11 :- and the Rules by the District Collector. Following observations in paras-5 and 7 of the said decision (Sanjayan) appear to me to be crucially relevant. In para-5 it is stated: “ .... The Rules empower the District Collector to take action for confiscation of the vehicles after following the procedure prescribed therein.” Later in para-7 their Lordships had further observed as follows: “ .... In any of the concerned cases, if, confiscation of the vehicles is contemplated under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 read with Rules made thereunder, the Revenue authorities shall proceed and act in accordance with Rules 27 and 28 of the Rules.” 14. Of course, my attention has been drawn to the following passage appearing in para-6 which reads as follows: “ .... All that the Revenue authorities have been empowered to do is to compound the offence.” 15. I am unable to agree that the Division Bench in Sanjayan had taken the view that there is no power of confiscation for the District Collector under the Act and Rules, Crl.M.C. Nos.53 of 2009 & other connected cases -: 12 :- notwithstanding the above observations in para-6. 16. Be that as it may, viewed from any angle, the conclusion appears to be inevitable that this Single Bench is bound by the observations, conclusions and specific directions of the Division Bench in Abdul Samad/Alavi and Moosakoya-II. 17. This is not to say that I have no disagreement with the conclusions of the Division Bench. My agreement or disagreement is irrelevant. Academic disagreement notwithstanding, it must be noted that sitting as a single Bench I am bound by the decision of the Division Bench. Natural queries do of course arise. The only substantive statutory provision in the Act dealing with confiscation is Sec.23 of the Act. Can there be a power of confiscation under the Rules if the Act does not confer such powers? If the expression “seizure” in the body of Sec.23 of the Act were to be read as “confiscation”, will police officers also have powers of confiscation? I am unable to get satisfactory and rational answers for these questions. It would be negation of the rule of law to confer such quasi judicial power of confiscation on police officials. Going by the English translation of the statue if the expression “seizure” were to be read and understood as “confiscation”, certainly such powers of confiscation may have to be conceded to the police officials also. Crl.M.C. Nos.53 of 2009 & other connected cases -: 13 :- 18. I am also equally sceptical about the expression “with fine” used in Rules 27(3) and 28(2) of the Rules. Who is to impose a fine contemplated under Rule 27(3) of the Rules? Can the District Collector a Revenue official have the powers to impose fine? Should not the expression “with fine” be understood in the context of Sec.20 of the Act which deals with the powers of the courts to impose fine for offences committed under the Act? Can the expression “fine” in Rule 27(3) and Rule 28(2) be read down to mean compensation for the loss suffered by the community/State consequent to the offence committed? These questions do also generate academic dissatisfaction. 19. I must also note that the legislature does have experience in enacting provisions conceding the powers for confiscation to specified non-judicial authorities who are to exercise quasi judicial functions. Sec.61A of the Kerala Forest Act; Sec.67B of the Kerala Abkari Act; Sec.6-A of the Essential Commodities Act and a host of other statutes deal with similar situations. It appears to me to be idle to assume that the legislature with such experience would have been satisfied by enacting a provision like Sec.23 of the Act to confer on the authorities a power to direct confiscation without even a provision for appeal. Crl.M.C. Nos.53 of 2009 & other connected cases -: 14 :- 20. It also appears strange to me that there is no specific stipulation in the Act and the Rules to give notice to the owner of the vehicle, if he be different from the person from whose possession the vehicle is seized by the police/revenue officials. Principles of natural justice would certainly demand that the owner of the vehicle must be given an opportunity to be heard before a decision is taken to confiscate his property even assuming that it has been seized from the possession of a person other than the owner or his employee. The provisions of Sec.23 of the Act and Rules 27 and 28 read along with directions in para-3 Moosakoya-II do not show that such an owner has any right of hearing or entitlement for notice before an order of confiscation is passed against him. 21. I do also note that anarchy prevails in the State about the procedure to be adopted. Even when crimes under the Act (cognizable offences) are detected by the police or in the presence of the police or even after the seized vehicles are handed over to the police, no FIR is seen registered in some cases. In some cases, the police officers take it on themselves that the FIR must be registered and investigations must commence when they detect offences or they come to know of the offences detected by revenue officials. But in many others Crl.M.C. Nos.53 of 2009 & other connected cases -: 15 :- they do not think it necessary to register crimes. How and on what intelligible criteria such decisions are taken are not decipherable at all. When revenue officials detect the offences, some times reports are made to the police and crimes are registered; some times they conveniently think that it is not necessary to do the same. Too much of discretion without any guideline appears to have been left with the police and the revenue officials and the learned counsel before me submit that many such officials are making hay while the sun shines. Many have a vested interest in the continuance of the ambiguity, submit counsel. Until the ambiguity is resolved by an authentic judicial pronouncement, or until amendments are made to the Act and the Rules, such vices, I feel, are likely to continue. It is the negation of the ideal of good governance to permit such state of affairs to continue. I can do nothing better than to ascertain the binding law. Even making a reference under Sec.3 of the High Court Act appears to be futile as the Full Bench as per order dated 23/7/08 has opined that the decision of the Supreme Court in the appeal against Abdul Samad/Alavi has to be awaited. 22. But all these academic dissatisfactions or anxieties of mine cannot weigh with me while ascertaining the binding law Crl.M.C. Nos.53 of 2009 & other connected cases -: 16 :- correctly. I have no hesitation to agree that Alavi/Abdul Samad and Moosakoya-II have concluded the issue on the question as to what is the correct procedure to be followed by detecting officers who effect seizure and the superior official to whom seizure is reported. I shall now extract the relevant specific observations appearing in Moosakoya-II in para-3 which is binding on me. 23. They read as follows: “ ... Under Sec.23 not only police officers, but also revenue officers may seize such vehicles. After seizure what is to be done with the vehicle and procedure to be adopted by the officers are clearly laid down in Rules 27 and 28. The seizure is, therefore, to be effected under the provisions contained in the Sand Act and Rules and not under S.102 Cr.P.C. On seizure, the following procedures have to be complied with: 1. The officer who is seizing the vehicle should prepare a mahazar. 2. The said mahazar should be signed by two witnesses. 3. A copy of the mahazar should be given to the person possessing the vehicle at the time of seizure. Crl.M.C. Nos.53 of 2009 & other connected cases -: 17 :- 4. A copy of the mahazar should be given to the District Collector. 5. The owner of the vehicle or the person from whom the vehicle was seized can file objection. 6. The District Collector is bound to consider the objection filed within seven days of seizure. 7. In Alavi's case, we have also held that as part of principles of natural justice, District Collector should give an opportunity of hearing also to the person who filed the objection. 8. The District Collector is bound to take a decision. If the vehicle is not found involved in illegal transport of the same, he is bound to return the same. 9. If it is found that the vehicle was transporting sand illegally, he has to fix an amount equivalent to the prize to be paid to the River Management Fund. 10. The District Collector is bound to Crl.M.C. Nos.53 of 2009 & other connected cases -: 18 :- return the seized vehicle if the amount fixed by the Collector is paid by the owner in possession of the vehicle as the case may be. 11. If the amount fixed is not paid within a reasonable time, he can sell the vehicle in auction. 12. The amount realised from the auction shall be credited to the River Management Fund.” 24. Alavi/Abdul Samad binds me. Moosakoya-II binds me. The mere fact that an appeal has been preferred against Alavi/Abdul Samad and the Supreme Court has stayed the operation of the direction in favour of the appellant therein cannot lead me to the conclusion that I can ignore either Alavi/Abdul Samad or Moosakoya-II. The stay of operation a the judgment/direction in favour of a litigant does not militate against the binding nature of the law declared by a larger Bench. 25. It is true that another single Bench in Ahamed Kutty v. State of Kerala (2008 (1) KLT 1968) has taken a different view. That view came up for consideration before a later single Bench in Subramanian. In para-52 the learned single Judge in that subsequent decision has observed thus: Crl.M.C. Nos.53 of 2009 & other connected cases -: 19 :- “52. Sec.23 of the Act provides that “whoever transports sand, without complying with the provisions of the Act, shall be liable to be punished and the vehicle used for the transportation is