1. Quashing of proceedings for unauthorized transport of sand and possession of a sword. (Para 1 , 2 )
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2024 Supreme(Online)(Ker) 84885
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. Kunhikrishnan, J
Munasil M.A. – Appellant
Versus
State Of Kerala – Respondent
CRL.MC NO. 478 OF 2017
Advocates:
For the Appellants/Petitioners: Sojan Micheals, Jency Micheals
For the Respondents: Sangeetharaj N.R
For the Appellants/Petitioners: Sojan Micheals, Jency Micheals
For the Respondents: Sangeetharaj N.R
Prosecution under the Kerala Protection of River Banks Act fails if the sand is found to be beach sand, and charges under the Arms Act for non-firearms are unsustainable without a mandatory notification under Section 4 specifying the area.
Headnote:(A) Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 - Nature of Sand - Prosecution under Sections 20 and 21 requires prima facie proof that the seized material is river sand; where chemical lab reports identify the substance as beach sand, the offence is not attracted. (Para 4, 5)
(B) Arms Act - Possession of Arms - Notification under Section 4 - For an offence under Section 25(1)(b) regarding arms other than firearms or prohibited arms, a mandatory notification by the Government specifying the area and the arms is a sine qua non; in the absence of such notification, the prosecution is unsustainable. (Para 4)
Issues: Whether the proceedings against the petitioner are sustainable given that the seized material was beach sand and no notification under Section 4 of the Arms Act was produced.
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Table of Contents
2. Sand was beach sand, not river sand, and no notification existed under Arms Act for the area. (Para 4 )
3. Offence under Arms Act requires notification; sand was beach sand, not river sand, per chemical report. (Para 4 , 5 )
4. A notification under Section 4 of the Arms Act is mandatory for an offence under Section 25. (Para 4 , 5 )
5. Criminal miscellaneous case allowed; all further proceedings quashed. (Para 7 )
6. Is a notification under Section 4 of the Arms Act mandatory for an offence under Section 25?
Yes, a prior notification under Section 4 is the sine qua non for an offence under Section 25 of the Arms Act. (Para 4 , 5 )
7. Does the Kerala Protection of River Banks Act apply to beach sand?
No, the Act applies only to river sand; it does not apply to beach sand. (Para 4 , 5 )
P.V.KUNHIKRISHNAN, J
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Crl.M.C. No. 478 of 2017
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Dated this the 9th day of September, 2024
O R D E R
This Criminal Miscellaneous case is filed to quash the proceedings against the petitioner in CC No. 1357/2015 on the file of the Judicial First Class Magistrate Court-II, Hosdrug arising from Crime No. 183/2014 of Bekal Police Station. The above case is chargesheeted against the petitioner alleging offences punishable under Secs. 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'Act, 2001') and Sec.4 r/w Sec.25(1)(b) of Arms Act.
2. The prosecution case is that on 09.03.2014 at 12.50 pm at Pallikkara, the accused was found transporting river sand unauthorizedly in an autorickshaw bearing registration No. KL 14 C 4162 and he was found in possession of a sword in the vehicle. It is the case of the prosecution that the accused committed the offences. The 2nd accused arrayed as an accused stating that he being the RC owner of the vehicle, alienated the vehicle without transferring the registration. According to the petitioner, even if the entire allegations are accepted, no offence is made out. Hence, this Criminal Miscellaneous case is filed.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. The 2nd accused faced trial and he was acquitted by the trial court. The short point raised by the petitioner is that as per the report of the chemical lab, the sand seized from the petitioner is not river sand, but beach sand. Therefore, the offence under Secs. 20 and 21 of the Act, 2001 is not attracted. As far as the Arms Act is concerned, it is submitted that the place from where the alleged arm is seized, is not a notified area. I think there is force in the above argument. This Court in Stephen v. State Of Kerala [2018 (4) KHC 58] considered this point in detail. The relevant portion is extracted hereunder :
13. "This Court in Jithu v. State Of Kerala , 2014 (3) KHC 77 : 2014 (2) KLD 209 : 2014 (3) KLT 243 : ILR 2014 (3) Ker. 504 : 2014 (3) KLJ 323, had held that for constituting an offence under S.25 of the Act, notification under S.4 is mandatory. This is in conformity with the view of the Division Bench of Bombay High Court in Sudhir Suresh Kamble v. State Of Maharashtra , Laws (Bom.) 1992 106, where it was held that in the absence of a notification under S.4, prosecution for offence under S.25 cannot be considered. In State of Punjab v. Swaran Singh (supra) the Full Bench held that in the absence of a notification under S. 4 declaring 303 rifle as a prohibited arm, prosecution under S.27 of Arms Act was not sustainable.
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16. A recapitulation of the discussion of above provisions with the aid of decisions, clearly lead to the conclusion that a mere acquisition, possession or carrying of arms other than fire arms or prohibited arms is not an offence under S.27 of the Arms Act. Acquisition, possession or carrying of arms of such nature can be prohibited by a notification by the State Government or the Central Government in relation to a specified area. The description of such arms which are thereby covered by the notification shall be prescribed in the notification.
17. Clearly, a notification preceding an offence under S.4 of the Act in relation to that area is the sine qua non for an offence under S.27 of Arms Act in relation to arms other than fire arms. In the case at hand, the prosecution has absolutely no case that there was a notification covering that area as well as covering the items prescribed in the notification or that were recovered from the possession of the petitioner. Consequently, an offence under S.27 will not lie in the facts and circumstances of the case. Necessarily, prosecution cannot succeed. Hence, Crl.M.C is liable to be allowed."
5. In the light of the above principle, the offence under the Arms Act is not attracted in this case because, there is no notification produc
