ABDU RAHIMAN Vs. DISTRICT COLLECTOR MALAPPURAM

JUDGEMENT

(1.) The above Writ Petitions were posted before the Division Bench, based on an order of reference made by the learned Single Judge, noticing the apparent conflict between the decisions of this Court in Ahammed Kutty v. State of Kerala,2008 1 KerLT 1068 and Shoukathali v. Tahsildar, 2009 1 KerLT 640.

(2.) Before referring to the legal contentions raised for our resolution, we will briefly refer to the facts of W.P.(Civil) No. 26073 of 2009, which is treated as the main case, for the purpose of referring to the Exhibits and facts. The petitioner is the owner of a goods autorickshaw, KL-10Z/7736. The said vehicle was seized by the Tahsildar, Ernad Taluk on 7.7.2009. The vehicle was, at the relevant time, transporting river sand from one work site to another work site. The Tahsildar reported the matter to the first respondent, District Collector. The said respondent by Ext.Pl order, ordered to pay an amount of Rs. 20,000/-(Rupees Twenty Thousand only) for release of the vehicle. Feeling aggrieved by the said order, the Writ Petition is filed. According to the petitioner, his vehicle could be confiscated or he should be called upon to pay the value of the vehicle in lieu of confiscation, only after a successful prosecution before the competent criminal court. In support of that submission, he mainly relies on the decision of this Court in Ahammed Kutty v. State of Kerala, . When the respondents resisted the said prayer pointing out the decision of another learned Single Judge in Shoukathali v. Tahsildar, , the Writ Petition, as mentioned earlier, was referred to the Division Bench.

(3.) We heard the learned Counsel, Sri. Babu S. Nair, and Sri. Jamsheed Hafiz, for the petitioners. We also heard the learned Advocate General, Sri. C.P. Sudhakara Prasad and the learned Government Pleader Sri. T.B. Hood, appearing for the State. The point that is vehemently canvassed by the learned Counsel for the petitioners is that, the Offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, being a cognizable offence, once information regarding the commission of the same is lodged, the Station House Officer is bound to register a Crime and investigate the same. Simultaneously, he has to file a report regarding the seizure of the vehicle before the Judicial Magistrate concerned under Section 102 of the Code of Criminal Procedure. If that be so, the learned Magistrate will be competent to order release of the vehicle under Sections 451 or 457 of the Code of Criminal Procedure. The Division Bench in Abdul Samad v. State of Kerala, 2007 4 KerLT 473; Alavi P.K. v. District Collector and Ors.,2007 ILR(Ker) 221 and Moosakoya v. State of Kerala, 2008 1 KerLT 538, failed to consider properly the impact of Section 24 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, which makes all offences under the said Act cognizable. So, the decision of the learned Single Judge in Ahamed Kutty refusing to follow the decision in Abdul Samad v. State of Kerala, lays down the correct legal position and the same has to be followed, it is submitted. In other words, the decision in Shoukathali v. Tahsildar , which follows Abdul Samad and Moosakoya , does not lay down the correct legal position, it is pointed out.