Kerala High Court
Beegum Fousiya Jafar E.J vs State Of Kerala on 28 February, 2025
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.MC NO. 863 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 02.08.2024 IN CMP
NO.5141 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
ALAPPUZHA
PETITIONER:
BEEGUM FOUSIYA JAFAR E.J
AGED 28 YEARS
WIFE OF NOUFAL M.N, MADATHIKALAYIL HOUSE,
MIDAYIKUNNAM, VADIYAR, THALAYOLAPARAMBU, KOTTAYAM,
PIN - 686605
BY ADVS.
P.M.ZIRAJ
IRFAN ZIRAJ
RESPONDENTS:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT
OF KERALA AT ERNAKULAM, PIN - 682031
2 THE SUB INSPECTOR OF POLICE
ALAPPUZHA NORTH POLICE, ALAPPUZHA, KERALA, PIN -
688001
OTHER PRESENT:
Crl.MC.No.863/2025
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SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 28.02.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.MC.No.863/2025
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V.G.ARUN, J
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Crl.M.C.No.863 of 2025
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Dated this the 28th day of February, 2025
ORDER
Petitioner's lorry bearing registration No.KL 29 D 0022
was seized by the 2nd respondent on 08.06.2024 alleging
violation of the provisions of the Mines and Minerals
(Development and Regulation) Act ("the MMDR Act" for short).
Later, petitioner moved the jurisdictional Magistrate Court with
a petition seeking interim custody of her vehicle. After taking
note of the fact that no crime is registered pursuant to the
seizure of petitioner's vehicle and further proceedings are
pending before the District Collector, the Magistrate passed
Annexure 1 order directing release of the vehicle subject to
stringent conditions. As per Condition No.7, petitioner is
required to deposit 30% of the value of the vehicle and furnish
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security for the balance amount. Condition No.8 requires the
petitioner to unload the river sand in the vehicle in the
premises of the police station. This Crl.M.C is filed seeking
deletion of Condition Nos.7 and 8 in Annexure 1 order.
2. Learned counsel for the petitioner submitted that the
direction to deposit 30% of the value of the vehicle and furnish
security for the balance amount is issued following the Full
Bench decision of this Court in Shan v. State of Kerala [2010
(3) KLT 413]. It is contended that the decision in Shan (supra)
was rendered in the context of siezure of vehicles under the
Kerala Protection of River Banks and Regulation of Removal of
Sand Act, 2001, ("the Sand Act" for short), and cannot
therefore be made applicable to seizure under the provisions of
the MMDR Act and the Kerala Minor Mineral Concession Rules.
This aspect has been clarified in Sasi v. State of Kerala [2013
(4) KLT 731]. It is pointed out that, under similar
circumstances, this Court in Suresh v. State of Kerala [order
in Crl.M.C.No.3597 of 2016] had altered the condition of
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depositing 30% of the value of the vehicle, to deposit
Rs.25,000/-, taking note of the decision in Sasi (supra). The
Division Bench in Writ Appeal Nos.1889 and 1890 of 2015, has
also issued an interim direction to release vehicles seized under
the provisions of the MMDR Act on deposit of Rs.25,000/-. As
regards Condition No.8 in Annexure 1, learned counsel
contended that the direction was issued without application of
mind, as would be evident from the fact that the vehicle
contained ordinary sand and not river sand.
3. Learned Public Prosecutor submitted that Section 21 of
the MMDR Act empowers the competent officer to confiscate
vehicles seized for violating the provisions of the Act. It is the
submission of the Public Prosecutor that in certain enactments
provision for confiscation is included in larger public interest
and to prevent recurrence of the violation. The objective behind
empowerment of the competent officer, to confiscate seized
vehicles, is to prevent rampant illegal mining of minerals,
resulting in environmental degradation. It is the submission of
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the Public Prosecutor that, leniency in the matter of interim
custody of vehicles may lead to disastrous results.
4. It is true that the power of confiscation is conferred on
the competent officer with the laudable objective of preventing
rampant illegal mining of minerals. In the case at hand, the
allegation is of having transported ordinary earth, which is a
minor mineral. Under Section 3 of the MMDR Act 'minerals'
and 'minor minerals' are separately defined. As per Section 15
of the Act, the State Government is granted the power to make
rules for regulating the grant of quarry leases or other mineral
concessions in respect of minor minerals. Accordingly, the
Government formulated and notified the Kerala Minor Mineral
Concession Rules, 2015 to deal with the mining of minor
minerals. As such the rigour attached to the seizure and
consequential confiscation of minerals and conveyances may
not strictly apply to minor minerals. Further, as contended, the
Full Bench decision in Shan (supra) was rendered in the
context of seizure and confiscation under the Sand Act. Being
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so, I am in agreement with the order in Suresh (supra),
wherein the vehicle was directed to be released on deposit of
Rs.25,000/-. As far as Condition No.8 is concerned, as noted
earlier, the petitioner's vehicle was not carrying river sand and
even otherwise, direction to deposit the entire load in the
police station premises is impracticable.
For the aforementioned reasons, Condition No.8 in
Annexure 1 is deleted and Condition No.7 is modified as under;
"The petitioner shall deposit Rs.25,000/- and execute bond
for Rs.25,000/- each with two solvent sureties."
All other conditions shall remain as such.
sd/-
V.G.ARUN, JUDGE
sj
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PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE ORDER DATED 02.08.2024
IN C.M.P.NO.5141 OF 2024 ON THE FILE OF
JUDICIAL FIRST-CLASS MAGISTRATE COURT-
I, ALAPPUZHA
Annexure 2 TRUE COPY OF SUNDERBHAI AMBALAL DESAI
V. STATE OF GUJARAT 2003 (2) KLT 1089
SC
Annexure 3 TRUE COPY OF G.O(MS)NO.51/2017/ID
Annexure 4 TRUE COPY OF CRL.M.C NO.4440 OF 2024
