PRAMOD Vs. THE DISTRICT COLLECTOR, PALAKKAD AND ORS.

JUDGEMENT

(1.) THE vehicle/Lorry bearing No. KL -23/907, belonging to the petitioner covered by Ext. P1 'Certificate of Registration' was seized by the 2nd respondent on 10.02.2015 as per Ext. P2 mahazar alleging illegal transportation of river sand. According to the petitioner, no offence has been committed by the petitioner and that the river sand was being transported on the strength of Ext. P3 valid pass. The prayer is to cause the seizure to be reported to the concerned Judicial Magistrate having jurisdiction over the area, so as to enable the petitioner to move the learned Magistrate in terms of Sub -section 1 of Section 23A and also by virtue of the proviso to Sub -section 2 for having interim custody. Reliance is also sought to be placed on the decision rendered by this Court in Aboobacker v. State of Kerala (2014 (3) KLT 26).

(2.) THE learned Government Pleader points out that, the offence under the Act will give rise to two separate proceedings, one by way of confiscation proceedings and the other by way of prosecution. By virtue of the law declared by the Division Bench of this Court in Sujith V. State of Kerala (2012 (2) KLT 547 the prosecution proceedings are liable to be mandatorily pursued, apart from the confiscation proceedings. It is also pointed out that the competent authority to deal with the confiscation proceedings is none other than the RDO, who has not been impleaded in the party array. Considering the relief sought for, this Court finds that the matter has to be reported undoubtedly to the concerned Judicial Magistrate as well, by virtue of the amendment caused to the statute, besides the rights and liberties of the authorities under the Act to pursue the confiscation proceedings. Now, the question to be considered is with regard to the further course of action in connection with the confiscation/prosecution proceedings and also with regard to the granting of interim custody of the vehicle. The competent authority to finalise the confiscation proceedings, as per the statute, is none other than the Sub Divisional Magistrate and there cannot be any dispute in this regard. With regard to granting of interim custody, the matter had come up for consideration before a Full Bench of this Court and as per the decision reported in Shan C.T. v. State of Kerala [ : 2010 (3) KHC 333 : 2010(3)KLT 413], the Bench observed that, interim custody of the vehicle could be released subject to satisfaction of 30% of the value of the vehicle and on furnishing security for the balance amount, giving further direction to have the confiscation proceedings finalised, within the time as stipulated therein. Paragraphs 12 and 13 of the said verdict read as follows: - -

(3.) LATER , an issue came up for consideration before this Court, as to whether prosecution proceedings are mandatorily to be pursued in cases involving offences under the Kerala Protection of River Banks and Regulation of Removal of Sand Act. The said aspect was considered, pursuant to the reference made by a learned Single Judge. The law was declared by a Division Bench, as per the verdict passed in Sujith V State of Kerala ( : 2012 (2) KLT 547), wherein it was observed that, prosecution in respect of the offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act was mandatorily to be pursued and that the matter was required to be reported to the concerned Judicial Magistrate having jurisdiction over the area, by filing proper complaint by the authorised Officers. The operative portion of the said verdict as contained in paragraph 13 reads as follows: