Kerala High Court
Aloshias C.Antony vs The Chief Secretary on 10 May, 2013
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935
WP(C).No. 12398 of 2013 (Y)
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PETITIONER :
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ALOSHIAS C.ANTONY,S/O.K.K.ANTONY,
PANAPARAMBIL HOUSE, EDATHUA VILLAGE,
ALAPPUZHA DISTRICT.
BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)
RESPONDENT(S):
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1. THE CHIEF SECRETARY,
GOVERNMENT OF KERALA, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. DISTRICT COLLECTOR, KOTTAYAM-686 001.
3. DISTRICT POLICE CHIEF, KOTTAYAM-686 001.
4. THE SUB-INSPECTOR OF POLICE,
CHANGANASSERY-686 101.
5. DIRECTOR OF MINING AND GEOLOGY,
DEPARTMENT OF MINING AND GEOLOGY,
THIRUVANANTHAPURAM-695 001.
R1 TO R5 BY SR GOVERNMENT PLEADER SRI.JOSEPH GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-12-2013,ALONG WITH WP(C)NO.18207 OF 2013 AND CONNECTED
CASES, THE COURT ON 19-12-2013 DELIVERED THE FOLLOWING:
sts
WP(C).No. 12398 of 2013 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: TRUE COPY OF THE AGREEMENT WITH REGARD TO THE VEHICLE
BEARING REG.NO.KL-5-AC-2537.
EXHIBIT-P2: TRUE COPY OF THE MAHAZAR PREPARED BY THE
CHANGANASSERY POLICE STATION.
EXHIBIT-P3: TRUE COPY OF THE P FORM DATED 10.5.2013.
EXHIBIT-P4: TRUE COPY OF THE NOTIFICATION NO.20553/K2/88/ID DATED
22.12.1988 (SRO 139/89 DATED 24.1.1989).
EXHIBIT-P5: TRUE COPY OF THE NOTIFICATION ISSUED UNDER SRO 827/91
PUBLISHED ON 26.06.1991.
EXHIBIT-P6: TRUE COPY OF THE INTERIM ORDER DATED 21.3.2013 IN WRIT
PETITION (CIVIL) NO.6050/2013.
RESPONDENT(S)' EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE G.O.(P)NO.170/2010/ID DATED 4/8/2010
/TRUE COPY/
P.A.TO.JUDGE
sts
[CR.]
P.R. RAMACHANDRA MENON J.
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W.P.(C) Nos. 12398, 16802, 18207, 18878, 18879,18890, 18891,
18903, 19488, 20290, 21636, 21637, 21688,21689, 21803, 21805,
22214, 23255, 23281, 23284, 23286, 23287, 23289, 23290, 23767,
24206, 24230, 24237, 24283, 24289, 24365, 24464, 24465, 24542,
24580, 24600, 24708, 24713, 24714, 24715, 24793, 24802, 24867,
24874, 24876, 24879, 24886, 24887, 24903, 24905, 24932, 24935,
24941, 24963, 24989, 25005, 25151, 25201, 25202, 25203, 25204,
25205, 25206, 25212, 25213, 25384, 25386, 25387, 25389, 25687,
25743, 25744, 25745, 25763, 25797, 25883, 25884, 25995, 25997,
25996, 25998, 26007, 26030, 26055, 26062, 26201, 26243, 26245,
26272, 26273, 26274, 26336, 26362, 26371, 26388 , 26423, 26510,
26511, 26539, 26564, 26566, 26681, 26683, 26692, 26740, 26762,
26781, 26844, 26881, 26927, 27071, 27168, 27188, 27232,, 27460,
27466, 27557, 27687, 27722, 27736, 27974, 29133, 29134, 29144,
29145 OF 2013
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Dated, this the 19th day of December, 2013
JUDGMENT
The power and authority of the concerned respondents (Police/Revenue/Mining and Geology Department) to seize the vehicles engaged in raising/transporting 'ordinary earth' in contravention of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957/ Kerala Minor Mineral Concession Rules, 1967 (hereinafter referred to as 'MMDR Act/KMMC Rules') is under challenge in all these writ petitions. W.P.(C) Nos. 12398 of 2013 and connected cases : 2 :
2. In some of the cases, intervention and seizure had been effected by the Police (Sub Inspector/Assistant Sub Inspector of Police ) while in others, seizure had been effected by the Revenue Officials (RDO/Tahsildar/Village Officer) or by the officers under the Mining and Geology Department. In most of the cases, the main contention raised is that eventhough a notification had been issued by the State Government under Section 22 of the MMDR Act, authorizing the concerned respondents to be the authorised officers for filing complaint before the appropriate Court for taking cognizance thereof, no notification had been issued to effect seizure under Section 21(4) of the said enactment and hence the challenge.
3. The pleadings and proceedings are referred to, as given in W.P.(C)No.24542/2013 for convenience of reference. The petitioners are either owners or drivers of the concerned vehicles ( JCB, Tipper Lorries etc.). Their grievance is that they are raising and transporting 'ordinary earth', on the basis of valid permits issued by the competent authority under the relevant provisions of the MMDR Act/KMMC Rules. But the Police/Revenue Officials are quite arbitrarily intercepting the operations, simply as a W.P.(C) Nos. 12398 of 2013 and connected cases : 3 : measure of harrassment and later charging them with the offences, alleging violation of the provisions of the MMDR Act/KMMC Rules. It is contended that the action is rather discriminatory as well, in so far as the respondents are not taking any action or causing any hindrance to similar activities being pursued by the Granite quarry owners/licencees, and in the case of other similarly situated persons, allegedly yielding to their political influence or for extraneous considerations. It is pointed out that, the power to effect seizure is entirely different from the power and authority to file complaint before the competent Court in respect of the alleged offences. According to the petitioners, the power under the former head is wider than the power under the latter head and as such, special empowerment under Section 21(4) is necessary to seize the vehicles. It is sought to be asserted that, the MMDR Act/KMMC Rules being a special legislation, the general provisions under Cr.P.C. are not attracted and in view of the absence of notification under Section 21(4) enabling seizure, the seizure and further proceedings are vitiated in toto and hence the challenge.
4. A counter affidavit has been filed on behalf of the fifth respondent i.e. the Director of Mining and Geology Department W.P.(C) Nos. 12398 of 2013 and connected cases : 4 : pointing out that the idea and understanding of the petitioners as to the scope of Section 21(4) of the Act and the relevant Rules enabling the concerned respondents to effect seizure and to proceed with the matter by filing complaint before the Competent Court in respect of the offences involving violation of the Act/Rules is thoroughly wrong and misconceived. It is stated that 'ordinary earth' is a 'minor mineral' as defined under Section 3(e) of the MMDR Act and if any attempt is made to raise or transport the same without the authority of law, it is liable to be intercepted by virtue of Section 4(1) & 4(1A) of the Act. Specific reference is made to Rule 48 A of the KMMC Rules, which mandates the necessity to have licence to deal with minor minerals and the necessity to issue Cash Memorandum as envisaged under Rule 48K for transporting the same. As per the said Rule, it is obligatory for the purchaser/owner/driver /person in charge of any vessel or vehicle to produce the cash memorandum at the time of inspection and verification, as required by the competent authority or by any other person authorised by the competent authority or by the Government in that behalf and that any consignment of minor mineral without a valid cash memorandum is considered as illicit W.P.(C) Nos. 12398 of 2013 and connected cases : 5 : and the competent authority or such authorised person may recover the minor mineral from the person and also the seize the receptacles in which the same is found and the carts,vehicles or other conveyances used for carrying the same. Reliance is also sought to be placed on the 'proviso' thereunder stipulating the duty of the owner/driver and the person in charge of any vessel/vehicle to stop the vehicle and to remain stationary, so long as it may do so by any Officer of the Department of Mining and Geology or Police or any other person duly authorized by the Government or the competent authority in that behalf, for the purpose of making any recovery under the Rule. According to the respondents, the provision of law is quite categoric, in so far as it provides authority to the Police, officers of the Department of Mining and Geology and other authorized officers to inspect and seize the vehicles involved in illegal excavation and transportation of minor mineral, for the purpose of preferring a complaint in the competent Court. It is also pointed out that the Police and other officers mentioned in the Rules are also authorized to compound the offences as per Section 23 A of the MMDR Act read with Rule 60 A of the KMMC Rules. Reference is also made to Ext.R5(a) Government Order bearing No. W.P.(C) Nos. 12398 of 2013 and connected cases : 6 : G.O. (P) No.170/2012/ID dated 4.8.2010 enabling officers mentioned therein to take necessary steps against illicit mining or transport of minor mineral within the respective area of their jurisdiction, and to prefer complaints in writing in Courts. It is pointed out that, filing of complaint can be made only on detecting the offence and it is only on interception and seizure, that the offence can be made out, to be proceeded further by filing complaint. Support is also sought to be drawn with reference to Rule 58(4) of the KMMC Rules in this regard.
5. With regard to the authority of the officers of the Revenue Department, it has been asserted in paragraph 8 of the counter affidavit that, officers of the Department of Revenue, including Tahsildar, Additional Tahsildar, Deputy Tahsildar and Village Officer are subordinate to the District Collector and that the District Collector is duly authorized to file complaint in respect of the offences under the MMDR Act/KMMC Rules, admittedly as per Ext.P5 notification. It is stated that there is no prohibition in conducting inspection and effecting seizure, on coming across illegal excavation, removal, transportation etc. of a minor mineral, by the subordinate officers of the District Collector, more so when W.P.(C) Nos. 12398 of 2013 and connected cases : 7 : the statute does not envisage that the vehicles be intercepted and seized by the District Collector himself, who is empowered to monitor the activities through his subordinate officers. It is always open for the District Collector to file complaint on the basis of the report submitted by his Subordinate Officers, including Tahsildar, Additional Tahsildar, Deputy Tahsildar and Village Officer as mentioned above and there is no legal bar with regard to the steps to be taken by the officers of the Police/Revenue/Dept. of Mining and Geology, for preventing illegal excavation/removal/quarrying etc. of a minor mineral and transportation of the same.
6. When the matters were taken up for consideration, it was pointed out from the part of the petitioners that the dispute is mainly with regard to the legal question as to the power and authority of the respondents to effect 'seizure' for want of necessary notification under Section 21(4) of the Act and as such, all the matters could be heard and considered together.
7. The learned Government Pleader appearing for the respondents submits that a detailed counter affidavit has been filed in W.P.(C)No.24542/2013 and some other cases as well, with reference to the relevant provisions of law and the same stand is W.P.(C) Nos. 12398 of 2013 and connected cases : 8 : sought to be adopted in all other cases as well. Since the issue is purely a 'question of law', as pointed out by both the sides, all these matters have been taken up together and heard in detail.
8. Sri.K.K.Unni and Sri.P.M.Ziraj learned counsel for the petitioners in the concerned cases addressed the Court leading the arguments on behalf of the petitioners, while Sri. Joseph George, learned Senior Government Pleader presented the case on behalf of the respondents/State. The petitioners sought to rely on the decision rendered by the Apex Court in State of Punjab v. Balbir Singh (1994 KHC 798) (under Narcotic Drugs and Psychotropic Substances Act), Roy v. State of Kerala (2001 KHC 53), the decisions rendered by the Single Bench of this Court in Elakovan v. State [2002 ( 1) KLT SN 23 ( Case No. 26)], Sam Swaminathan v. State of Kerala (2002 KHC 705), Sudhir v. State of Kerala (2004 KHC 745) in support of their contention that search and seizure effected by an unempowered officer, without the requirements of law, vitiates the entire/further proceedings. Similar reliance is sought to be placed on the decisions rendered by a Single Bench of this Court in Unni v. State of Kerala (2009 (2) KHC 661) and Baiju and Others v. State W.P.(C) Nos. 12398 of 2013 and connected cases : 9 : of Kerala (2011(1) KHC 518) ( both under Abkari Act) and so also Radhakrishnan K. v. State of Kerala (2008 (2) KHC
460) and Abdul Rasheed and Another v. State of Kerala (2012 (4 ) KHC 395) ( both under Immoral Traffic (Prevention) Act), besides placing reliance on the decision rendered by the Division Bench of this Court in Travancore Devaswom Board v. Mohanan Nair (2013 KHC 2893) under the Land Reforms Act. The decision rendered by another learned Judge of this Court in Janardhana Kurup v. State (1953 KHC 225) is also pressed into service in this regard.
9. The term 'minor mineral' is defined under Section 3(e) of the MMDR Act, which means; building stones,gravel,ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. It is brought to the notice of this Court that the Central Government, invoking the power conferred under the statute, had issued notification No. G.S.R. 95(E) dated 3.2. 2000 to the effect that ordinary earth is a 'minor mineral' and the same has been notified in the Gazette of India. This being the position, it cannot be a W.P.(C) Nos. 12398 of 2013 and connected cases : 10 : matter of further dispute that 'ordinary earth' is a 'minor mineral'. In so far as it is minor mineral, by virtue of Section 4 and Section 4(1A) no person except under and in accordance with the terms and conditions of the licence to be obtained under the Act/Rules, can raise/extract ordinary sand or transport the same or store or caused to be transported/stored as specified therein.
10. Rule 48 A stipulates that no person, other than a person holding quarrying permit or a quarrying lease, shall stock, sell or offer for sale any minor mineral mentioned in Schedule I of the Rules in any place in the State, except under a dealer's licence issued under the seal and signature of the competent authority, if the Government have issued no notification to that effect in the case of any minor mineral in the whole State or in any particular area. Rule 48 K deals with the issuance of Cash Memorandum while selling minor minerals as prescribed and it is for the owner/driver/person in charge of the vessel/vehicle to produce the same at the time of inspection and verification as required by the competent authority or any other person authorized by the competent authority or Government in that behalf, simultaneously stipulating that any consignment of minor mineral without a valid W.P.(C) Nos. 12398 of 2013 and connected cases : 11 : cash memorandum shall be considered as an illicit one, enabling the officer/authority/authorized person to recover the same from the person, also enabling to seize the receptacles in which it is found and to seize the carts/vehicles /other conveyances used for carrying the same.
11. The scope of the challenge has to be considered in the above background. In order to understand the scheme of the statute and to appreciate the rival contentions, it is necessary to have a glance at Section 22, Section 21(4) of the MMDR Act and Rule 48 K, Rule 58(3) & Rule 58(4) of the KMMC Rules, which are reproduced for convenience of reference :
" Sec.22 : Cognizance of offences - No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.
Section 21(4) : Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially W.P.(C) Nos. 12398 of 2013 and connected cases : 12 : empowered in this behalf."
Rule 48 K Cash Memorandum : Every dealer or producer under these Rules, while selling minor minerals shall give to the purchaser, a cash memorandum in Form P prepared in duplicate duly with seal and signature of the competent authority or any other officer duly authorized in this behalf and every purchaser, owner, driver, and the person in charge of any vessel, vehicle etc., it shall produce the Cash Memorandum at the time of inspection and verification as required by the competent authority or by any other person authorized by the competent authority or Government in this behalf. Any consignment of minor mineral without a valid cash memorandum shall be considered as illicit and the competent authority or such authorized person may recover the minor mineral from the person and also seize the receptacles in which the same is found and the carts, vehicles or other conveyances used in carrying the same. The date and time on each Form 'P' issued shall be entered in words and figures by the dealer or producer at the time of despatch of the consignment :
Provided that the owner/driver and the person in charge of any "Vessel", vehicle shall cause it to stop and to remain stationary so long as it may do so by any officer of the department of Mining and Geology or Police or any other person duly authorized by the Government or the competent W.P.(C) Nos. 12398 of 2013 and connected cases : 13 : authority in that behalf for the purpose of making any recovery under this rule."
Rule 58(3) Whenever any person raises, without any lawful authority any minor minerals from any land, and for that purpose, brings on the land, any tool, equipment, vehicle or any other things, such mineral, tool, equipment, vehicle or other thing shall be liable to be seized by an officer or authority specially empowered in this behalf by the Government .
(4) Illegal transport of minor minerals without any valid permit issued by a competent authority is liable for seizure of the minor mineral along with the transport vehicle, equipment and tools and the owner and /or the driver shall be liable for punishment under rule 58, irrespective of the place from where the minor minerals have been raised. "
12. The learned counsel for the petitioners submit that, there is no dispute with regard to the competency of the concerned officers/respondents to file complaint in writing before the Magistrate's Court for taking cognizance of the offences. But the specific contention is that no notification has been issued by the Government under Section 21(4) of the Act conferring authority upon any officer to effect seizure as specially empowered in this behalf. It is pointed out that, by virtue of Section 26(2) of the W.P.(C) Nos. 12398 of 2013 and connected cases : 14 : MMDR Act, it is possible for the State to delegate powers and it was accordingly, that Ext.P4 notification was issued on 22.12.1988 ( as per SRO 139/89 published in the Kerala Gazette dated 24.1.1989) enabling the fifth respondent/Director of Mining and Geology, Kerala also to exercise the powers exercisable by the Government under the Act/Rules. It is stated that no notification has been issued by the fifth respondent/Director as well, till date. Ext.P5 notification dated 26/06/1991 is only with regard to the authority specified for filing complaint in writing as envisaged under Section 22 of the Act and that, it does not refer to any power of seizure to be exercised by the concerned officers in terms of Section 21(4).
13. As on date, the relevant notification issued by the State Government under Section 22, in supercession of the earlier notification, is the one dated 4.8.2010 published in the Kerala Gazette on 16.8.2010 and produced as Ext.R5(a) along with the counter affidavit filed on behalf of the fifth respondent in W.P.(C) No.24542/2013. This factual position is not disputed. The general purport of the notification is discernible from the 'Explanatory Note' thereunder, which is reproduced below for immediate reference :
W.P.(C) Nos. 12398 of 2013 and connected cases : 15 : "Explanatory Note ( This does not form part of the notification, but is intended to indicate the general purport) Government vide G.O.(Rt) No.205/2010/ID. Dated 20.02.2010 have sanctioned for the creation of Central Mineral Squad with its headquarters at Thrissur and abolished the Special Office at Cherthala. The District Office at Alappuzha is shifted to Cherthala. In the above circumstances the areas of jurisdiction of the Southern and Northern Mineral Squads have to be refixed and Senior Geologist/Geologist and Assistant Geologist of the Central Mineral Squad will have to be empowered to initiate legal action for contravention of the provisions of the Act and Rules made thereunder."
14. The learned counsel for the petitioners submit that the term 'competent authority' has been separately defined under Rule 3 (iv) of the KMMC Rules, which means the authority or officer appointed by the State Government by notification in the Gazette, to exercise the powers and perform the functions of the competent authority under these Rules. A notification bearing No. SRO 74/78 dated 11.7.1978 issued by the State Government under Clause 3
(iv) of the KMMC Rules is brought to the notice of this Court. As per the said notification and the schedule thereunder, the W.P.(C) Nos. 12398 of 2013 and connected cases : 16 : concerned authorities of the Revenue Department, Local Authorities and various other Departments have been mentioned, also specifying the extent of their powers and functions - with reference to the quantum of royalty to be satisfied, also pointing out that in cases involving royalty of more than Rs. 1,000/-, the power shall stand vested with the Director of Mining and Geology. The 'Explanatory Note' thereunder reveals that, it has been issued in connection with the issue of quarrying permits and nothing more.
15. Coming to the scope of Section 21(4) and the nature of the contentions raised by the petitioners, it is to be noted that, Section 21 deals with 'Penalties' and how the proceedings have to be dealt with and finalised. Sub Section 1 of Section 21 says that, whoever contravenes the provisions of sub Section (1) or sub- section (1A) of Section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both. It is settled law that, punishment can be imposed only by a Court of law and not by the Departmental Authorities. Section 22 stipulates that no Court shall take cognizance of any offence punishable under this W.P.(C) Nos. 12398 of 2013 and connected cases : 17 : Act or any Rules made thereunder, except upon a complaint in writing by a person authorised in this behalf by the Central Government or the State Government. This being the position, the power of seizure contemplated under Sub-Section (4) of Section 21 is to be read as corollary to the power of the authorized person under Section 22 to prefer a complaint in writing. The version of the petitioners that the power of seizure is something more than or wider than the power to file a complaint in writing and prosecute the matter, is obviously wrong and misconceived, having no legs to stand.
16. The issue can be considered from another angle as well. The power of seizure stands conferred upon the Police by virtue of Section 102 of the Cr.P.C. which reads as follows :
"S.102. Power of police officer to seize certain property - (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section W.P.(C) Nos. 12398 of 2013 and connected cases : 18 : (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same Provided that where the property seized under sub-
section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale." How the trial is to be conducted in respect of offences under the IPC and those in respect of 'other laws' are clearly stipulated under Section 4(1) and 4(2) of the Cr.P.C., respectively as extracted below :
W.P.(C) Nos. 12398 of 2013 and connected cases : 19 : " S.4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code ( 45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
The question to be considered is whether the general power conferred under the Cr.P.C. is ousted by virtue of the MMDR Act/ KMMC Rules as contended by the petitioners.
17. As mentioned already, the gist of the law declared by this Court as well as by the Apex Court in various decisions cited from the part of the petitioners is that, if the proceedings are not pursued by the competent authorities as specified under the special enactments, it will stand vitiated. 2009 (2) KHC 661 [Unni Vs. State of Kerala] and 2011 (1) KHC 518 [Baiju and Others Vs. State of Kerala] are in respect of offences under 'The Abkari Act'. In the cases mentioned above, crime was registered, investigation was conducted and final report was submitted by the concerned W.P.(C) Nos. 12398 of 2013 and connected cases : 20 : ASI of Police. Interference was made by this Court holding that as per the notification issued by the Government, the Assistant Sub Inspector of Police was not authorized or empowered to detect, investigate or submit final report and accordingly, in the former case, conviction and sentence imposed were set aside, holding that the accused was not guilty in respect of the offence under Section 55 (a) of the Abkari Act, while in the latter case, the FIR and Final report were quashed. Almost similar finding and reasoning have been given in the decisions reported in 2008 (2) KHC 460 [Radhakrishnan K. Vs. State of Kerala] and 2012 (4) KHC 395 [Abdul Rasheed and Another Vs. State of Kerala], both of which relate to offences under the Immoral Traffic (Prevention) Act 1956. In 2013 KHC 2893 [Travancore Devaswom Board Vs. Mohanan Nair], a Division Bench of this Court observed that, in the absence of a notification authorizing a Special Village Officer as the Authorized Officer for the purpose of Section 105 and 105A of the Kerala Land Reforms Act, the report submitted by the Special Village Officer cannot form the basis for an action under Section 72C of the Act. Similarly, it was held in 1953 KHC 225 [Janardhana Kurup Vs. State], with reference to Sections 2 and W.P.(C) Nos. 12398 of 2013 and connected cases : 21 : 6 of the Dramatic Performances Act 1115 (T), that the District Magistrate was not specially empowered under Section 2 of the said Act and that, the notification issued under Section 6 of the Act empowered the concerned authority only for the purpose of that Section and not to act under Section 2 of the Act by implication.
18. Coming to the cases in hand, the situation as mentioned in the above cases has not arisen as yet. Admittedly, complaint is still to be preferred by the authorized officers as contemplated under Section 22 of the MMDR Act and the challenge is only with regard to the 'seizure' of vehicles. That apart, there is no dispute for the petitioners as to the fact that the concerned respondents are actually empowered to file complaint in writing under Section 22 of the MMDR Act by virtue of the relevant notification issued in this regard and the case of the petitioners is only that the officers empowered under section 22 of the Act do not have the power to effect 'seizure' in the course of detection of offence, which is something difficult to digest.
19. The decisions rendered by the learned single Judge of this Court in 2002 (1) KLT S.N. 23 (Case No. 26) [Elakovan Vs. State], 2002 KHC 705 [Sam Swaminathan Vs. State of W.P.(C) Nos. 12398 of 2013 and connected cases : 22 : Kerala], 2004 KHC 745 [Sudhir Vs. State of Kerala] and those rendered by the Apex Court in 1994 KHC 798 [State of Punjab Vs. Balbir Singh] and 2001 KHC 53 [2001 (1) KLT 86] [Roy Vs. State of Kerala] are in respect of the provisions under the NDPS Act, holding that search and seizure conducted by unauthorized Officers cannot form the basis for proceedings in respect of offences under Chapter IV of the said Act. In 1994 KHC 798 (cited supra), the Apex Court has made an exhaustive analysis of the relevant provisions, also with reference to Sections 4, 100 and 165 of the Cr. P.C. as well. Nature of the particular enactment (NDPS Act) stipulating deterrent punishments and the fact that the Legislature has taken care to incorporate several provisions in Chapter V of the NDPS Act, governing the arrest, search and seizure and to afford safeguards, so that the innocent persons are not harassed, were adverted to. Specific reference was also made to Section 51 of the NDPS Act, which reads as follows:
" S 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizure - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act to all warrants issued and W.P.(C) Nos. 12398 of 2013 and connected cases : 23 : arrests, searches and seizure made under this Act.".
Referring to the mandate of Sections 41, 42, 50, 51, 52 and 57 of the NDPS Act, it was observed that the provisions of the Cr. P.C. shall apply, in so far as they are not inconsistent with the provisions of the NDPS Act to all warrants issued, arrest, searches and seizures made under the Act and hence the provisions of Sections 100 and 165 of the Cr. P.C which are not inconsistent with the NDPS Act are applicable for effecting search, seizure or arrest in respect of cases relating to NDPS Act as well.
20. The conclusions arrived at by the Apex Court in 1994 KHC 798, (cited supra) are summarized in paragraph 26 of the said verdict, which reads as follows:
"26. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
(1)If a police officer without any prior information as contemplated under the Provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of W.P.(C) Nos. 12398 of 2013 and connected cases : 24 : complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psycotrophic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafer proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage .onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2A)Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place.When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorised officers as enumerated in Ss. 41(2) and 42(l) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal.
W.P.(C) Nos. 12398 of 2013 and connected cases : 25 : (2B)Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction. (2C)Under Section 42(l) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(l) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3)Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(l) should forthwith send a copy thereof to his immediate official superior. If W.P.(C) Nos. 12398 of 2013 and connected cases : 26 : there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4A)If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
(4B)If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165, Cr.P.C. and if there is no strict compliance with the provisions o Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5)On prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person W.P.(C) Nos. 12398 of 2013 and connected cases : 27 : should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6)The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
From the above, it is crystal clear, that the provisions of the Cr.P.C. with regard to seizure are not to be ignored in toto and as such, seizures in the instant cases are not liable to be assailed, in so far as it is on the basis of the directions given by the authorized W.P.(C) Nos. 12398 of 2013 and connected cases : 28 : officers, who are competent to file complaints for taking cognizance of the offence as specified under Section 22 of the MMDR Act.
21. Yet another aspect to be noted is that, it is the bounden duty of the Police to take every earnest effort to prevent the occurrence of cognizable offences and to take all necessary steps in this regard in discharge of his duty, under any law for the time being in force; as evident from Sections 29(b), (e) & (g) of the Kerala Police Act, which are extracted below:
" S 29 (b) collect and communicate, to the best of his ability, intelligence concerning the commission of cognisable offences or designs to commit such offences and lay such information and take such other steps consistent with law and with the orders of his superior officers as shall best be calculated to bring offenders to justice and prevent the commission of cognisable and within his view, of non- cognisable offences.
(e) apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists.
(g) discharge such duties as are imposed upon him by any law for the time being in force.
Similarly Section 149 of the Cr. P.C. clearly stipulates that every W.P.(C) Nos. 12398 of 2013 and connected cases : 29 : police officer may interpose for the purpose of preventing, and shall, to the best of his ability prevent commission of any cognizable offence. Cognizable offence has been defined under Section 2 (c) of the Cr. P.C., which means an offence for which, a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant. The question is, whether the offence stated as committed by the petitioners is a cognizable offence or not.
22. Section 21 (6) of the MMDR Act reads as follows:
"S. 21 (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 an offence under sub-section (1) shall be cognizable.
Evidently, there is a 'non-obstanti clause' in Section 21 (6) of the MMDR Act, which is a Special Statute, even as contended by the petitioners, which clearly stipulates that, the offence under sub Section (1) of Section 21 shall be cognizable. Sub section 1 of Section 21 deals with the contravention of the provisions of Sections 4 (1) and 4 (1A) of the Act, which are extracted below:
4. Prospecting or mining operations to be under licence or lease- (1) No personal shall undertake any reconnaissance, prospecting or mining operations in any area, except under W.P.(C) Nos. 12398 of 2013 and connected cases : 30 : and in accordance with the terms and conditions of reconnaissance permit or of a prospecting licence, or as the case may be, of a mining lease, granted under this Act and the rules made thereunder.
Provided that nothing in this sub section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.
Provided further that nothing in this sub section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines [the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorate of Mining and Geology of any State Government (by whatever name called) and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956] Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu.
(1A) No person shall transport or store or cause to be W.P.(C) Nos. 12398 of 2013 and connected cases : 31 : transported or stored any mineral otherwise that in accordance with the provisions of this Act and the Rules made thereunder.
From the above, it is quite evident that the offences under Section 4 (1) and 4 (1A) of the MMDR Act are cognizable offences, notwithstanding anything contained in Cr.P.C. and it has been held so, by a Division Bench of this Court as well, as per the decision reported in 2008 (4) KLT 909 [Construction Materials Movers Association Vs. State of Kerala]
23. The questions considered in the above case [2008 (4) KLT 909] were :
(i) Whether ordinary earth is a mineral as defined under the Mines and Minerals (Development and Regulation) Act.
(ii) Whether a quarrying permit is necessary for storing and selling ordinary earth even through ordinary earth is not included in Schedule 1 of the Rules.
The petitioners therein, who were engaged in the business of transporting ordinary earth, approached the Court challenging the action of the Revenue/Police authority by intercepting and detaining their lorries for want of necessary licenses. The reliefs sought for in the writ petition were in the following terms:
W.P.(C) Nos. 12398 of 2013 and connected cases : 32 : "1. Issue a writ in the nature of mandamus commanding the respondents 2 to 13 not to seize the vehicles or respective petitioners and impose fine for the reason that they are transporting ordinary earth.
1(a). In the alternative issue a writ in the nature of mandamus commanding the 14th respondent to accept the applications, filed by the petitioners, filed under the Minor Mineral Concession Rules for permission to transport ordinary earth and consider the same on merits, treating that ordinary earth is a minor mineral".
The Court observed that the decision rendered by this Court in 2008 (1) KLT 141 [Thilakan Vs. State of Kerala] holding that there may not be any law prohibiting removal of the red earth, was without taking note of the status of 'ordinary earth' as minor mineral as defined under Section 3 (e) of the MMDR Act, pursuant to the notification issued in the year 2000 by the Central Government. The Bench also considered the scope of the non- inclusion of ordinary earth in the 'first schedule' to the KMMC Rules and observed that, it can have effect only with regard to the non requirement of satisfaction of royalty and that, any person who wants to deal with ordinary earth had necessarily to procure licence from the Mining and Geology Department, notwithstanding the W.P.(C) Nos. 12398 of 2013 and connected cases : 33 : definition of the term 'Dealer' as contained in Rule 3 (xiii) of the KMMC Rules saying that, 'Dealer' means a person carrying the business of selling minor mineral enlisted in Schedule 1 of the KMMC Rules. It was held that, the contentions of the petitioners that quarrying and transporting of ordinary earth by anyone without any licence in any manner could not be acceded to. Now, by virtue of the amendment of the KMMC Rules in the year 2012, 'ordinary earth' stands included in the first schedule as on date and as such, the Government is entitled to realize royalty as well to the specified extent.
24. In paragraph 11 of the above verdict [2008 (4) KLT 909], the Bench observed that, the first prayer of the writ petitioners was that the Revenue and Police Officers may be restrained from seizing the vehicles. In paragraph 12, it was observed that violation of sub Sections 1, 1A of Section 4 of the Act, being cognizable offences as per Section 21 (6) of the Act, the Police can take preventive action under Section 149 of the Cr.P.C., to prevent commission of those offences. That apart, Rule 61 of the KMMC Rules speaks about the role of police in assisting the competent authority or officer authorized by the Rules in discharing W.P.(C) Nos. 12398 of 2013 and connected cases : 34 : his duty in stopping illicit mining and preventing unauthorized movement of minerals. The Bench observed that, if the Police acts as directed by the District Collector, this Court cannot interfere with the same, calling it as police harassment, also observing that, if the Revenue Officials take action for violation of Section 4 (1A) of the Act, the Court cannot interfere with such action of the Revenue Officials. This being the position, the challenge raised by the petitioners against the interception/seizure of the vehicles by the Police/Revenue Officials in connection with the alleged violation of Section 4(1)/4(1A) of the Act is without any pith or substance, being contrary to the relevant provisions of law and the binding judicial precedents.
25. In this context, it is relevant to note that proper complaints in respect of the offence stated as committed by the petitioners are yet to be made and interference may be necessary, only if such complaints are filed by an officer other than an authorized officer as contemplated under Section 22 of the Act. Further, it has been held by the Apex Court in AIR 2005 SC 733 [State of Madhya Pradesh Vs. Paltan Mallah] with reference to Section 165 of the Cr. P.C. that the alleged illegality of search by W.P.(C) Nos. 12398 of 2013 and connected cases : 35 : the Investigative Officer will not vitiate the seizure unless it is substantiated that some prejudice has been caused in this regard. No such case is brought out by the petitioners, as to prejudice, if any. Even otherwise, it is for the trial Court to decided as to whether any prejudice has been resulted, whether the concerned officer is an authorized officer or not, or whether the proceedings pursued are in violation of the Statutory prescription etc.; based on the evidence to be let in. As such, the grievance of the petitioners is rather in respect of an anticipatory cause of action. It is for the petitioners to face the trial and to substantiate their case with reference to the actual facts, figures and evidence.
26. In the above facts and circumstances, this Court does not find any reason to call for interference. The Writ Petitions are devoid of any merit and none of the grounds raised in support of the same could be held as tenable. Accordingly, interference is declined and all the writ petitions are dismissed.
27. Section 23 A of the MMDR Act read with Rule 60 A of the KMMC Rules enable the parties concerned to have the offence compounded, if they so desire. Once the offence is compounded, no further prosecution proceedings will lie, as made clear by this W.P.(C) Nos. 12398 of 2013 and connected cases : 36 : Court in 2013 (1) KLT 600 (Digil v. Sub Inspector of Police). In the said circumstances, it is made clear that, dismissal of these writ petitions will not stand in the way of the petitioners from seeking for the benefit of 'compounding' the offence, if they opt for the same. If any such application is filed, it shall be considered by the competent authority and the amount already satisfied by the petitioners by virtue of the interim orders passed by this Court for releasing the interim custody of the vehicles shall be given credit to, and only the balance amount, if any, shall be realized towards the compounding fee.
P. R. RAMACHANDRA MENON, (JUDGE) sv/kmd