Kerala High Court
Shajeer vs The Sub Inspector Of Police on 4 August, 2016
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938
Crl.MC.No. 6009 of 2016 ()
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CRIME NO. 425/2016 OF MANJESWAR POLICE STATION , KASARGOD
PETITIONER(S):
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SHAJEER
S/O. USMAN,
RAYAMARAKKAR HOUSE, CHOVALLUR,
THRISSUR.
BYADV. SRI.O.D.SIVADAS
RESPONDENT(S):
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1. THE SUB INSPECTOR OF POLICE
MANJESWAR POLICE STATION, MANJESWARAM, KASARGOD
DISTRICT.PIN- 671121.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
PIN- 682031.
BY PUBLIC PROSECUTOR SRI.T.R.RENJITH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-11-
2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 6009 of 2016 ()
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE A1 TRUE COPY OF THE BILL DATED 4.8.2016 ISSUED BY M/S
KAILAS CONSTRUCTIONS.
ANNEXURE A2 TRUE COPY OF THE PERMIT DATED 8.8.2016 ISSUED BY THE
DISTRICT MINING OFFICE,
ANNEXURE A3 TRUE COPY OF THE TRANSIT PASS AND RECEIPT ISSUED
FROM SALOORA CHECK POST AUTHORITIES.
ANNEXURE A4 TRUE COPY OF THE RECEIPT DATED 4.08.2016 ISSUED BY
SHREE SAKTHIVINAYAGA TRANSPORT.
ANNEXURE A5 TRUE COPY OF THE FIR IN CRIME NO. 425/2016 REGISTERED
BY THE POLICE.
ANNEXURE A6 TRUE COPY OF THE REPORT SUBMITTED BY THE POLICE
BEFORE THE JFCM-II, KASARGOD.
RESPONDENT(S)' ANNEXURES
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NIL
/TRUE COPY/
VPS PS TO JUDGE
RAJA VIJAYARAGHAVAN.V, J
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Crl.M.C. No.6009 of 2016
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Dated this the 16th day of November, 2016
O R D E R
1.This petition is filed under Section 482 of the Code of Criminal Procedure.
2.The petitioner herein is the sole accused in Crime No.425 of 2016 of Manjeswar Police Station registered for offences punishable under Section 379 of the IPC and under Sections 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as "Act 18 of 2001").
3.The prosecution allegation is that, on 5.8.2016 at 6 p.m., the Sub Inspector of Police, Manjeswar Police Station intercepted the Lorry bearing Reg.No.KL 52/H 9517 driven by the petitioner and on inspection, the vehicle was found loaded with sand. Under the strong premise that what Crl.M.C.6009/2016 2 was being transported was river sand, illegally removed from some river in the State of Kerala, violating the provisions of Act 18 of 2001, the vehicle as well the sand was seized and Annexure-A5 FIR was registered as aforesaid. Though in Annexure-A5 FIR, the vehicle number is noted as KL 52 J/3877, in Annexure-A6 report subsequently submitted before the jurisdictional Magistrate by the Sub Inspector of Police, Manjeswaram Police Station, it is stated that the vehicle number was noted wrongly and the actual number is KL 52/H 9517.
4.This petition is filed seeking to quash the proceedings on the ground that the continuance of proceedings is nothing but an abuse of process.
5.I have heard the submissions of the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.
6.The learned counsel appearing for the petitioner submits Crl.M.C.6009/2016 3 that due to the scarcity of construction grade sand in the State of Kerala, the Government has taken a policy decision to encourage the import of sand from other States as well as from other Countries. This was done in public interest considering the huge requirement of sand in the State of Kerala. It was in accordance with the orders issued by the Government that the petitioner had imported sand from the State of Maharashtra. Reference is made to Annexure-A1 bill, Annexure-A2 permit, Annexure-A3 transit pass and Annexure-A4 receipt to contend that what was seized from the vehicle of the petitioner was not river sand removed from the rivers flowing in the State of Kerala but sand legally imported from the State of Maharashtra.
7.The learned counsel would then rely on the judgment in Prakash Nayak v. District Collector, Kasaragod and Others [2016(40 KHC 915] to contend that a Full Bench of this Court has conclusively held that sand or even river Crl.M.C.6009/2016 4 sand brought to the State of Kerala from other States, on licit or illicit export, cannot be governed by the Sand Act in Kerala. According to the learned counsel, in view of the said decision, the Crime registered under Section 379 of the IPC and under the various provisions of the Act 18 of 2001 can only be quashed.
8.The learned Public Prosecutor on instructions submitted that the investigating officer has verified from the District Mining Officer, Collectors Office, Nanded and it was found that Annexure-A3 transit pass was genuine. It is also submitted that the check post records revealed that the vehicle had crossed the Bangara Manjeswara check post on the date of seizure.
9.I have considered the rival submissions and have gone through the materials on record.
10.The Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 framed by the Crl.M.C.6009/2016 5 Government of Kerala in exercise of the powers under sub-section (1) of S.23C of the MMDR Act prohibits a person from transporting any mineral or mineral product without having a valid mineral transit pass under these Rules. Since a valid transit pass has been produced by the petitioner and since the information received from the commercial tax authorities reveals that the sand found in the vehicle was imported from the State of Maharashtra, the prosecution of the petitioner under Section 379 of the IPC and under Section 20 of Act 18 of 2001 cannot be sustained.
In the result, this petition is allowed and Annexure-A5 FIR in Crime No.425 of 2016 of Manjeswar Police Station and all further proceedings pursuant thereto against the petitioner are quashed. SD/-
RAJA VIJAYARAGHAVAN.V. JUDGE vps