Environmental protection offenses related to controlled substances cannot be compounded under the applicable statutes, affirming procedural rights for affected parties.

J U D G M E N T

The petitioner is the driver of a lorry bearing registration No.KL-

07-AW-1324. The said motor vehicle was seized by the first respondent on 21.2.2014 on the allegation that it was used to transport river sand without a valid permit. Pursuant thereto, Crime No.147 of 2014 of Harbour Police Station was registered against the petitioner under the Kerala Police Act , 2011, Mines and Minerals (Development and Regulation) Act , 1957 and the Kerala Minor Mineral Concession Rules , 1967. In this writ petition, the petitioner prays for a writ in the nature of mandamus commanding the respondents to receive the application for compounding Crime No.147 of 2014 of Harbour Police Station, Ernakulam from him and to pass appropriate orders thereon.

2. When the writ petition came up for hearing today, learned Government Pleader appearing for the respondents submitted on instructions that though in the first information statement and in the mahazar it is stated that river sand was being carried in the motor vehicle, an offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act , 2001 was not registered against W.P.(C) No.5494/2014 2 the petitioner, that thereafter an additional report was filed in the Court of the Judicial Magistrate of First Class-I Kochi incorporating the commission of the offence punishable under section 20 of the , 2001 and therefore, the offence cannot be compounded as requested by the petitioner. The learned Government Pleader submitted that as river sand was being carried in the vehicle without a valid permit, proceedings will also be initiated to confiscate the vehicle under the , 2001. In the light of the aforesaid development and having regard to the fact that even going by the First Information Report and as the goods carried in the vehicle was river sand, I am of the opinion that the relief prayed for by the petitioner cannot be granted.

I accordingly dispose of the writ petition with a direction to the Revenue Divisional Officer, Fort Kochi, the additional third respondent herein, to conclude the proceedings initiated under the Kerala Protection of River Banks and Regulation of Removal of Sand Act , 2001 within six weeks from 21.2.2014 after affording the petitioner as well as the owner of the motor vehicle an opportunity of being heard. It will be open to the owner of the motor vehicle to either move the Court of the Judicial Magistrate of First Class-I Kochi for release of the W.P.(C) No.5494/2014 3 vehicle by way of interim custody as provided in the first proviso to sub section (2) of section 23A of the , 2001 or to move the Revenue Divisional Officer himself for such interim custody and in that event the court/authority before whom such an application is filed shall grant interim custody having regard to the principles laid down by the Full Bench of this Court inShan v. State of Kerala ( 2010 (3) KLT 413 ). The Revenue Divisional Officer shall after final orders are passed, communicate a copy thereof to the petitioner/owner of the motor vehicle. If the petitioner/owner of the motor vehicle has a case that what was carried in the motor vehicle was not river sand but ordinary earth, it will be open to them to have a sample of the goods analysed by moving an appropriate application either before the Revenue Divisional Officer or the criminal court and the competent court/authority shall have due regard to the report of analysis as well, while taking a decision in the matter pending before them.

P.N.RAVINDRAN, (JUDGE)

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