D.Dhana Lakshmi W/O D.Venkata Ramana Murthy, v. The State Of A.P.,

HON'BLE SRI JUSTICE A.RAJASHEKER REDDY WRIT PETITION NO.64 OF 2015 ORDER:

Heard the counsel for the petitioners and learned Government Pleader for Panchayat Raj, learned Government Pleader for Revenue, learned Government Pleader for Home and learned Government Pleader for Mines and Geology.

2. The grievance of the petitioners in this Writ Petition is that the second respondent has seized the petitioners' vehicles viz., lorries bearing Registration Nos. AP 31 TC 4969 and AP 31 TC 4589 without following any procedure and that the said seizure is illegal and arbitrary.

3. It is not disputed that the seizure of the vehicles for illegally transporting the sand was previously governed by G.O.Ms.No. 186 Industries and Commerce (Mines-I) Department dated 17.12.2013, but the said G.O is now superseded and substituted by G.O.Ms.No. 95 Industries and Commerce (Mines-IV) Department dated 28.8.2014.

4 .

The new Rules provide for a penalty for the first and second offences, and thereafter, discretion is conferred on the authorized Officer to confiscate the vehicle involved in illegal extraction and transportation of sand. The Rules also contemplate that any officer, who seized any vehicle, may release the same on the execution of a bond by the owner thereof for the production of the vehicle so released, as and when directed by the competent court. Rule 18 of the said Rules contains these provisions and the same is extracted hereunder:

"18 Offences:

(i) Where vehicles without valid way bill has been used the transportation of sand in contravention to these rules:

(a) If any vehicle is found to be involved for illegal extraction and transportation of sand under these rules shall be levied penalty for each vehicle as detailed below:- Vehicle First time Second time offender fine offender fine Type amount (in Rs.) amount (in Rs.) Tractor 15,000 45,000 L o r r y upto 10 45,000 75,000 Tons Capacity Lorry above 10 75,000 1,50,000 Tons Capacity (b) If the vehicle is found to be involved more than two times, such vehicle along with sand shall be confiscated by any officer authorized by the Government through notification from time to time. (ii) Every officer seizing any vehicle under said subrule (1) shall place on such vehicle, a mark indicating that the same has been seized and shall submit a report of such seizure to the Competent Court of Law. (iii) An authorized officer who seizes any vehicle shall order confiscation of the vehicle so seized.

(iv) No order of confiscation of any vehicle shall be made under sub-rule (v) Unless the person from whom the vehicle is seized is given:- (a) A notice in writing informing the person of the grounds on which it is proposed to confiscate such property.

(b) An opportunity of making a representation in writing

within such time as may be specified in the notice against the grounds for confiscation; and (c) A reasonable opportunity of being heard in the matter.

(vi) Without prejudice to the provisions of sub-rule (4), no order of confiscation under sub-rule (3), of any machinery/vehicle shall be made if the owner of the vehicle thereof proves to the satisfaction of the authorized officer that it was used in carrying the operations without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. Provided that no order prejudicial to any person shall be passed without being offered an opportunity of being heard.

(vii) Any officer who seized any vehicle under Sub-rule

(1) (iii) and where he makes a report of such seizure to the competent court under sub rule (2) may release the same on the execution a bond by the owner thereof for the production of the vehicle so released, as and when directed by the competent court.

(viii) The vehicle seized udder this rule shall be kept in the custody of the Station House Officer/Motor Vehicle Inspector concerned until an order of the Competent Court of Law directing its disposal is received.

(ix) Upon the receipt of any report under sub-rule (2), the Magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the vehicle according to law."

5. It is stated by the learned counsel for the petitioners that in similar circumstances, this Court disposed of W.P.No.38357 of 2014 by order dated 16.12.2014.

6. The learned Government Pleader for Mines and Geology

has not disputed the same, but however, he states that a crime is registered in this case.

7.

A perusal of the order dated 16.12.2014 passed by this Court in W.P.No.38357 of 2014, shows that the learned Judge has considered Rule 18 of the Rules and passed the order. 8 .

Following the ratio laid down in the said decision, the petitioners are directed to submit representations to the officer who seized the vehicles; the said officer shall within three days from the date of receipt of the application examine whether the vehicles were used in committing the offence for the first or the second time; and, if so, consider directing release of the vehicles on payment of the prescribed penalty. If, on the other hand, the vehicles are found to have been used in the commission of the offence for three or more times, the officer concerned shall consider directing the release of the vehicles, in accordance with Rule 18(vii), on bonds being executed by the owners of the vehicles for their production as and when directed by the competent Court to which such seizure was reported by the Officer who seized the vehicles.

9. The entire exercise, culminating in an order being passed, shall be completed within three days from the date of submission of the representations by the petitioners; and necessary action shall be taken for release of the vehicles, in cases falling within the ambit of Rule 18(i)(a), on payment of the prescribed penalty; and, in other cases, on bonds being executed in terms of Rule 18(vii) of the Rules.

10. Accordingly, the Writ Petition is disposed of. There shall be no order as to costs.

As a sequel thereto, miscellaneous

petitions, pending if any, shall stand closed. ____________________ A.RAJASHEKER REDDY, J Date: 07.01.2015 Pab/va/md