Kerala High Court
Vahida vs The Geologist on 26 May, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942
WP(C).No.9922 OF 2020(M)
PETITIONERS:
1 VAHIDA
AGED 28 YEARS, W/O. BASHEER, PULLATTUKUZHI HOUSE,
PALLIKKAL P.O., MALAPPURAM DISTRICT
2 MUJEEB
AGED 32 YEARS, S/O.BEERANKUTTY, ARIPPARA HOUSE,
KOONOLMAD, PUTHUR, PALLIKKAL, MALAPPURAM DISTRICT
3 BASHEER.P.,
AGED 38 YEARS, S/O. BEERAN, PULLATTUKUZHI HOUSE,
KOONOLMAD, PUTHUR, PALLIKKAL, MALAPPURAM DISTRICT
4 MUHAMED SHAFI.P.,
AGED 36 YEARS, S/O. BEERAN, PULLATTUKUZHI HOUSE,
KOONOLMAD, PUTHUR, PALLIKKAL, MALAPPURAM DISTRICT
5 SAITHALI
AGED 40 YEARS, S/O. MUHAMMED, CHEMMALA,
KODIKUTHIPARAMBU, ANTHIYOORKUNNU P.O, PULIKKAL,
MALAPPURAM DISTRICT
6 MOHAMMED SHAFI.E.,
AGED 38 YEARS, S/O. KUNHALI.E., UNNIYALUNGAL HOUSE,
SRAMBIYA BAZZAR, PULIKKAL, MALAPPURAM DISTRICT
BY ADV. SRI.BABU S. NAIR
RESPONDENTS:
THE GEOLOGIST
DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,
MANJERI, MALAPPURAM DISTRICT,PIN-676 121
BY ADV. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.9922 OF 2020(M) 2
ALEXANDER THOMAS, J.
-------------------------------------------
W.P.(C)No.9922 of 2020
----------------------------------------------
Dated this the 26th day of May, 2020
JUDGMENT
The case set up in this Writ Petition (Civil) is as follows:-
Since the petitioners have been under lockout due to Covid-19 pandemic, they have not been operating their vehicles all throughout the lockout period declared by the government.
Subsequently, the government has relaxed the conditions of lockout, permitting all the construction activities to be started, the petitioners wanted to operate their vehicles as their only source of livelihood is the operation of the vehicles. On 07-05-2020, the 2 nd respondent seized all the vehicles from the public road. The vehicles owned by the petitioners 1 to 3 and 6 were empty vehicles and the vehicles owned by the petitioners 4 and 5 were loaded with few laterite stones. The vehicles including the excavator were seized and taken to the police station and the drivers of the respective vehicles were issued with Exhibits P7 to P12 notices under 14(1)(A) of Cr.P.C. making them accused stating that they WP(C).No.9922 OF 2020(M) 3 have committed the offences under Sections 188, 269 and 270 IPC, 118(e) of the Kerala Police Act, 2011 and Section 5 of the Epidemic Diseases Ordinance, 2020. All the aforesaid offences are very minor and the seizure of the vehicles at all are warranted.
No seizure mahazar were issued to the petitioners.
2. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:-
i) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the 2 nd respondent to release the vehicles bearing registsration No.KL-56D/5468, KL-13V/3303, KL-10AH/290, KL-
10AH/4845 and KL-55G/5998 and KL-10AY/438 to the petitioners for their interim custody, unconditionally, forthwith;
ii) Declare that the seizure of the vehicles owned by the petitioners on the allegations set out in Exhibit P7 to P12 notices are absolutely necessary, unwarranted and illegal;
iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case"
3. Heard Sri.Babu S. Nair, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents 1 & 2.
4. Sri.Babu S. Nair, learned counsel appearing for the petitioners has made submissions in tune with the pleadings in WP(C).No.9922 OF 2020(M) 4 this writ petition (civil). Sri.Babu S. Nair, learned counsel appearing for the petitioners would urge that the vehicles of petitioners 1 to 3 are lorries which were admittedly found empty at the time of the seizure and that the vehicles the of petitioners 4 and 5 are also lorries which were having only laterite stones at the time of seizure and that the vehicle of 6 th petitioner is a JCB. The impugned seizure was effected on 07.05.2020, which is after the relaxations of the lock down made effective from 24.04.2020. It is also urged that in this case seizure mahazar has not been prepared by the 2nd respondent Station House Officer and that he has mechanically registered an FIR as Crime No.228/2020 of Thenhipalam Police Station for offences alleged under Sections 188, 269 and 270 of the Indian Penal Code (IPC) and Section 118(e) of the Kerala Police Act, 2011 and Section 5 of the Epidemic Diseases Ordinance, 2020. In this regard it is pointed out that it is, by now, well established that cognisance of an offence as per Section 188 of the IPC can be taken only on the basis of a complaint in writing of the officer whose directions have been allegedly violated. Further it is pointed out that there are no factual allegations to justify the incorporation of the abovesaid offences in WP(C).No.9922 OF 2020(M) 5 the FIR and also that at the time of the seizure the 2 nd respondent had no case that the vehicles have involved in contravention of the provisions of the Mines and Minerals (Regulation and Development Act), 1957 and the Kerala Minor Mineral and Concession Rules, 2015, framed thereunder. That is only later the 2nd respondent has given a report on the basis of incorrect allegations and factual allegations to the 1st respondent District Geologist about alleged contravention of the provisions of MMDR Act and KMMC Rules. Accordingly it is urged that this court may direct the 2nd respondent to grant interim custody of the seized vehicles to respective petitioners.
5. The above said prayers are seriously opposed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for the respondents.
6. It is also pointed out that the 2 nd respondent-Station House Officer has already submitted a report to the 1 st respondent-District Geologist alleging contravention of the provisions of the MMDR Act and the Rules framed thereunder and the matter is now pending consideration before the 1 st respondent.
WP(C).No.9922 OF 2020(M) 6
7. It is seen that a Division Bench of this Court has already passed certain directions and orders as per the order in suo motu writ proceedings in WP(C) No.9401/2020 dated 17.04.2020. The following directions have been passed in paragraph Nos.6 to 9, which reads as follows:-
"6. It is brought to our notice that for various needs, genuine or otherwise, certain citizens of this State have violated the provisions of the Ordinance and have plied their vehicles in public roads. Those vehicles have been promptly seized by the Police and crimes have been registered against the alleged violators inter alia under Sections 188, 269 of the IPC, Section 118(e) of the Kerala Police Act, 2011 and also the various provisions of Epidemic Disease Ordinance. The seized vehicles are lying in the premises of the Police Stations, exposed to the vagaries of nature. In the ordinary course, the owners of the said vehicles would have approached the jurisidictional Magistrate for release of vehicles under Section 451 or 457 of the Code of Criminal Procedure. However, as the courts are functioning in a restricted capacity, they are prevented from doing so. We are given to understand that vehicles in the thousands have been seized and are lying in the premises of the various Police Stations. This has resulted in causing grave inconvenience to the law enforcement officers, as they are required to ensure that the vehicles are not stolen/lost from the Station concerned. Less said about the consequent damage to the vehicles, the better.
7. In view of the above, we deem it necessary to issue certain general directions by invoking our extraordinary jurisdiction under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure to enable the Station House Officers to release the vehicles on conditions so as to solve this imbroglio.
8. We therefore direct the Station House Officers of the respective Police Stations in the State of Kerala to release the vehicles seized under the Kerala Epidemic Diseases Ordinance, 2020 or under the provisions of the Indian Penal Code/Kerala Police Act, 2011 for violating the lockdown imposed on the owner of the respective vehicle, executing a personal bond and on depositing copies of the RC book, his license and the certificate of insurance of the vehicle. The owner of the vehicle shall file an undertaking that the vehicle shall be produced as and when directed by the officer concerned at a later stage. In addition, the owner shall be required to remit the amount, which we have tentatively fixed as under.WP(C).No.9922 OF 2020(M) 7
Type of Vehicle Fine
Two Wheelers/three wheelers Rs.1000/-
Motor Car & Jeeps and other Light Motor Rs.2000/-
Vehicles (Private and Transport)
Stage Carriages and Contract Carriages and Rs.4000/-
Medium Goods vehicle
Heavy Goods Vehicles Rs.5000/-
9. The amount collected as aforesaid shall be deposited in the treasury under a suitable head, with clear particulars and in accordance with the relevant regulations. The SHO concerned shall forward a copy of this Order along with the final report to the learned Magistrate concerned, who shall deal with the matter in accordance with law. It is made clear that this order is being passed under the prevailing extraordinary circumstances solely for the release of the vehicle at the interim stage and shall be subject to the final order passed in each case. It is also made clear that the benefit of this order shall not be extended to repeat offenders."
8. After having heard both sides, this Court is of the considered view that directions can be issued in tune with the orders already passed by the Division Bench of this court as per order dated 17.04.2020 in W.P.(C) No.9401/2020. Accordingly the following directions and orders passed.
(a) The 2nd respondent-Station House Officer shall grant interim custody of the vehicles seized from the petitioners pursuant to Crime No.228/2020 of Thenhipalam Police Station on the respective petitioners executing a personal bond and on submitting attested copies of respective RC Books, attested copy of the Driving License, attested copy of the Certificate of Insurance of the vehicle and also on the respective petitioners filing an affidavit or undertaking that they shall not involve the said vehicles in any offences and WP(C).No.9922 OF 2020(M) 8 that the respective vehicles shall be produced as and when directed by the respondents, concerned, at a later state. Further it is also ordered that each of the petitioners shall remit an amount of Rs.5,000/- (Rupees Five thousand only) each, as directed therein, for which necessary receipt shall be issued by the 2nd respondent-Station House Officer, etc.
9. This will be without prejudice to the right of the petitioners to challenge the legality of the FIR registered against them as per Crime No.228/2020 by filing appropriate application or petition under Section 482 of the Criminal Procedure Code, if so advised.
10. This will also be without prejudice to the contentions of the respondents that the matter has been proceeded further for the alleged contravention of the provisions contained in the MMDR Act and the KMMC Rules. In that regard, the respondents, more particularly the District Geologist, may proceed in accordance with law. It is also made clear that this will be without prejudice to the contentions of the petitioners against the initiation of any such proceedings. In other words, all such contentions on both sides are left open to be decided in the appropriate proceedings in the manner known to law. WP(C).No.9922 OF 2020(M) 9
11. The petitioners will ensure that a copy of the memorandum of this writ petition (civil) along with a certified copy of this judgment is produced before respondents 1 and 2 for necessary information.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Skk//28052020 WP(C).No.9922 OF 2020(M) 10 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 1ST PETITIONER'S VEHICLE EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 2ND PETITIONER'S VEHICLE EXHIBIT P3 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 3RD PETITIONER'S VEHICLE EXHIBIT P4 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 4TH PETITIONER'S VEHICLE EXHIBIT P5 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 5TH PETITIONER'S VEHICLE EXHIBIT P6 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 6TH PETITIONER'S VEHICLE EXHIBIT P7 TRUE COPY OF THE NOTICE ISSUED TO THE DRIVER OF THE 1ST PETITIONER'S VEHICLE UNDER SECTION 41(1)(A) CR.P.C. EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED TO THE DRIVER OF THE 2ND PETITIONER'S VEHICLE UNDER SECTION 41(1)(A) CR.P.C. EXHIBIT P9 TRUE COPY OF THE NOTICE ISSUED TO THE DRIVER OF THE 3RD PETITIONER'S VEHICLE UNDER SECTION 41(1)(A) CR.P.C. EXHIBIT P10 TRUE COPY OF THE NOTICE ISSUED TO THE DRIVER OF THE 4TH PETITIONER'S VEHICLE UNDER SECTION 41(1)(A) CR.P.C. EXHIBIT P11 TRUE COPY OF THE NOTICE ISSUED TO THE DRIVER OF THE 5TH PETITIONER'S VEHICLE UNDER SECTION 41(1)(A) CR.P.C. EXHIBIT P12 TRUE COPY OF THE NOTICE ISSUED TO THE DRIVER OF THE 6TH PETITIONER'S VEHICLE UNDER SECTION 41(1)(A) CR.P.C. RESPONDENTS' EXHIBITS: NIL