High Court of KeralaWP(C)/1906/2015disposed of

Shamsudheen v. The Sub Inspector Of Police, Kottayi Police Station

2015-01-196 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 19TH DAY OF JANUARY 2015/29TH POUSHA, 1936 WP(C).No. 1906 of 2015 (K) --------------------------- PETITIONER(S):

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1. SHAMSUDHEEN, S/O.MUHAMMED, AGED 43 YEARS, VALLIKKADU HOUSE, KAVUSSERY-II, ALATHUR, PALAKKAD DISTRICT (OWNER OF JCB BEARING REGISTRATION NO.KL-13-K-9733)

2. JAYAPRAKASHAN, S/O.RAMAKRISHNAN, AGED 38 YEARS, ECHANPARA HOUSE, THOZHANOOR VILLAGE, ALATHUR, PALAKKAD DISTRICT (OWNER OF A TRACTOR BEARING REGISTRATION NO.KL-9-G-2646)

3. RAVEENDRAN, S/O.RAMAKRISHNAN, AGED 36 YEARS, ECHANPARA HOUSE, THOZHANOOR VILLAGE, ALATHUR, PALAKKAD DISTRICT (OWNER OF A TRACTOR BEARING REGISTRATION NO-KL-9-F-1178) BY ADV. SRI.P.M.ZIRAJ RESPONDENT :

-------------------------- THE SUB INSPECTOR OF POLICE, KOTTAYI POLICE STATION, PALAKKAD DISTRICT, PIN-678 864 BY SR GOVERNMENT PLEADER SRI.K.C.VINCENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

sts

WP(C).NO.1906/2015 APPENDIX PETITIONER'S EXHIBITS:

P1 COPY OF THE MAHASAR DATED 15/1/2015 PREPARED BY THE RESPONDENT. RESPONDENT'S EXHIBITS:

NIL /TRUE COPY/ P.A.TO.JUDGE sts

P.R. RAMACHANDRA MENON, J.

----------------------------------- W.P(C). No. 1906 of 2015 ------------------------------------------- Dated this the 19th day of January, 2015

J U D G M E N T

Petitioners are the owners of the vehicles bearing Reg. Nos. KL-13-K-9733, KL-9-G-2646 and KL-9-F-1178, which was seized by the respondent, alleging illegal transportation of ordinary earth. The case of the petitioners is that the petitioners have not used the vehicles in contravention of any provisions of the 'MMDR Act, 1957'/'KMMC Rules, 1967, or the Kerala Conservation of Paddy land and Wet Land Act (Act 28 of 2008). The learned counsel for the petitioners submits that the vehicles were being used to transport 'Ordinary earth' covered by valid permit/P Form. 2.

Heard the learned Government Pleader as well, who submits that, no supporting document was there and that the offence involved is under the MMDR Act/ KMMC Rules. No offence under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or 'Sand Act' is stated as involved. Learned counsel for the petitioners submits that the petitioners are ready to compound the offence.

Section 23A of the Act and Rule 60A of the Rules

enable the party to have the offence compounded. The question whether the prosecution proceedings could be pursued further, once the offence is compounded in accordance with the relevant provisions of the MMDR Act has already been considered and decided by this Court in 2013 (1) KLT 600 ( Digil v. Sub Inspector of Police), holding that, once the offence is compounded, there cannot be any further prosecution proceedings. The directions given as per the above verdict are extracted below :

"i) In cases where compounding applications have been acted upon as per the interim orders passed by this Court and the offences have been compounded and compounding fees have been collected and vehicles have been released, it is declared that no further proceedings can be taken for confiscation of the vehicles;

ii) In cases where complaints have been filed before the Court but compounding applications have been entertained and offences have been compounded, appropriate applications will be filed before the Courts and the concerned Courts will pass appropriate orders in the matter with regard to the closure of the cases pending;

iii) In cases where compounding applications are yet to be filed by the parties concerned, it is open to them to file applications which will be dealt with by the officer concerned in accordance with law and they will be free to pass appropriate orders on it. If no applications are filed within a period of three weeks from today and if compounding is not being allowed, it is open to the concerned officers to complete the procedures as enjoined by law."

After hearing both the sides, this Court finds that the petitioners are also entitled to have similar relief.

Coming to the extent of amount to be satisfied as compounding fee, the Rules specifically stipulate that any offence under the Rules can be compounded subject to the satisfaction of the maximum fine prescribed under the Rules, which is stated as Rs.5,000/-. But in respect of the transportation of sand/earth without any valid pass/sanction, it is stated as an offence under the 'Act' itself by virtue of the incorporation of Section 4(1A), for which separate penalty is provided under the Act itself. The maximum fine in respect of such offence prescribed under the Act is stated as Rs.25,000/-. It was in the said circumstance, that this Court was passing orders enabling the party to have interim custody of the vehicle, on satisfaction of a sum of Rs.25,000/-, also directing the concerned respondent to consider the application for compounding, if any.

In view of the willingness expressed from the part of the petitioners to have the offence compounded, conceding the guilt, this Court finds it fit and proper to direct the respondent to compound the offence, if the petitioners satisfy a sum of

Rs.25,000/- each. It is ordered accordingly. On satisfaction of the compounding fee, the vehicles shall be released to the petitioners forthwith. It is made clear that once the offence alleged against the petitioners are compounded, no prosecution proceedings shall be pursued against them.

The Writ Petition stands disposed of accordingly. The petitioners shall produce a copy of this judgment along with a copy of this writ petition before the concerned respondent for further steps.

Sd/- P.R. RAMACHANDRA MENON, JUDGE.