IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 22566 of 2009(M) -------------------------- PETITIONER(S): --------------- T.ASHARAF, S/O.ALI, AGED 40 YRS., THOTTIYIL HOUSE, ANANTHAVOOR P.O., KUNDILANGADI, THIRUNAVAYA (VIA), MALAPPURAM DT., (RC OWNER AND IN POSSESSION OF KL-07-S/6355). BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM. 2. SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION, KOTTAKKAL, MALAPPURAM DISTRICT. BY GP SRI. P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ....................... W.P.(C).22566/2009 ....................... Dated this the 12th day of August, 2009 JUDGMENT Petitioner is a registered owner of a mini lorry bearing registration No.KL-07-S/6355. The same was seized on 16.1.2009 on the allegation that it was being used for illicit transportation of river sand. Seizure was effected by invoking provisions of Kerala Anti Social Activities (Prevention) Act. It seems that the petitioner was heard thereafter and an order was passed by the 1st respondent, the District Collector, directing confiscation of the vehicle. Consequential notice Ext.P4 was also served. These proceedings have been challenged in the writ petition. 2. A Division Bench of this Court in Abdul Majeed v. District Collector (2009 (3) KLT 459), held that the State is not entitled to seize the vehicle for the alleged illicit transportation of river sand by invoking provisions of the Anti Social Activities (Prevention) Act. Said seizure and confiscation are to be done under the provisions of W.P.(C).22566/2009 2 the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Paragraph 12 of the judgment reads as follows:- “In the result, we declare that the vehicle of the petitioner cannot be confiscated, relying on the vague provisions of Section 17 of the Act. But, the matter does not end there. As the vehicle of the petitioner is alleged to have been involved in the transport of river sand, it can be dealt with under Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002. The vehicles used for commission of anti-social activity are, in fact, used in commission of offences under various other enactments, which provide for dealing with vehicles. For example, if the vehicle is used by the bootlegger, it can be confiscated under the Abkari Act, or if the vehicle is used for transporting forest produce illegally, it can be confiscated W.P.(C).22566/2009 3 under the Forest Act. If there are no relevant provisions under the concerned Act, then it can be dealt with under the provisions of the Code of Criminal Procedure. If the vehicles are to be dealt with under the provisions of the Act, better and more specific provisions other than Section 17 are required to be introduced in it. In this case, we notice that the vehicle of the petitioner has already been released on payment of Rs.25,000/- and also executing a bond, undertaking not to alienate or encumber the vehicle. In this case, the District Collector may proceed again the vehicle under the Kerala Protection of River Banks and Regulation of Removal of Sand Act and the Rules thereunder, within a period of one month from the date of receipt/production of a copy of this judgment. If proceedings under the said Act are not initiated within the above said time limit, the release of the vehicle made as per the interim order, shall be treaed as unconditional and the amount deposited by him shall be released to him and other conditions imposed shall stand W.P.(C).22566/2009 4 vacated. If proceedings under the above mentioned Act are initiated within one month of the receipt of a copy of this judgment, the conditions imposed for release of the vehicle will remain in force until final orders are passed in that proceedings. The final orders shall be passed within one month of initiation of the proceedings.” 3. The said principle applies to the present case also. Learned Government Pleader points out that this is one of the cases where final order under the Anti Social Activities (Prevention) Act has been passed. In my view, since the Division Bench has issued a declaration and has also observed that the Act does not contain an adequate provision to deal with the case of illicit transportation of river sand, the same view would apply to the present case also. 4. Writ petition is therefore, disposed of declaring that seizure and confiscation of the petitioner's vehicle W.P.(C).22566/2009 5 bearing registration No. KL-07-S/6355 under the provisions of the Anti Social Activities (Prevention) Act is illegal. The said vehicle shall be released to the petitioner on deposit of Rs.25,000/- and subject to the undertaking that the vehicle shall not be alienated or encumbered, till proceedings if any initiated by the District Collector under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 are completed. Such proceedings, may be initiated by the District Collector within one month from the date of receipt of a copy of this judgment. If it is not so initiated, then the amount deposited by the petitioner pursuant to this order, shall be refunded to him and the petitioner will be entitled to use his vehicle in accordance with law. V.GIRI, Judge mrcs