MOOSAKOYA Vs. STATE OF KERALA

JUDGEMENT

(1.) A learned single Judge of this Court referred this matter to the Division Bench as in the earlier judgment of this Court in Alavi P.K. v. District Collector and others (ILR 2007 (4) Kerala 221) (same as Abdul Samad v. State of Kerala (2007 (4) KLT 473)) while holding that Section 102 of the Code of Criminal Procedure is not applicable when vehicles transporting sand illegally is seized under Section 102, Cr. P. C. it was not brought to the notice of this Court that under Section 24 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (in short 'the Sand Act') all offences are cognizable. If the offences are cognizable, the police cannot refuse to register a crime when they get information regarding the commission of a cognizable offence. Consequently, police is bound to report the seizure of the vehicle to the Magistrate having jurisdiction as provided under Section 102, Cr. P. C. At paragraph 6 of the judgment it was held as follows :

(2.) Section 24 of the Sand Act cannot be read in isolation with Section 25. We extract the above sections below :

(3.) A plain reading of the above provision will show that even though by Section 24 all offences under the Act are made cognizable, no Court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A 'complaint in writing' by the authorised officer etc. is the only condition for taking cognizance as provided in Section 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under Section 173(2) of the Cr. P. C. after investigation by police. Section 20 deals with penalty for the offence. Maximum period of imprisonment, apart from fine that can be imposed, is only two years. In Alavi's case, we have considered the scope of Section 23 read with The Kerala Protection of River Banks and Regulation of Removal of Sand Rules (for short 'the Rules') and held that the Act and Rules should be read together and harmoniously interpreted and Collector has got power to confiscate and sell the vehicle if the amount fixed by him is not paid to the River Management Fund within a reasonable time. Statutory rules framed in accordance with the Act also can be referred in interpreting the Statute so long as rules are not inconsistent with the Act. (See : Gujarat Pradesh Panchayat Parishad v. State of Gujarat ((2007) 7 SCC 718). For an effective understanding, we may extract Section 23 of the Act, Rule 27 and Rule 28 of the Rules :