The petitioner approached this Court challenging the order passed by the District Collector in the matter relating to confiscation of vehicle under the Kerala Protection of River Bank and Regulation of Removal of Sand Act, 2001. The vehicle in question was intercepted at around 12.30 hours on 12.9.2013, while transporting river sand. The F.I.R. would show that the time is 12.30 hours. The arrest in Ext.P2 mahazar is shown at 12.40 hours.
2. The petitioner's case is that the petitioner was intercepted at 12.40 hours. The petitioner contends that they had a valid pass issued by the Panchayat. Ext.P1 is the pass. This Court summoned the Kadavu Register. Kadavu Register also shows that the pass was issued to the petitioner. The starting time was at 12.25 hours. The District Collector entered a doubt that 15 Kms, the distance from which the vehicle was intercepted from the starting point, cannot be covered in five minutes. Therefore, the petitioner's case that they have a valid pass and was transporting sand in the vehicle with the valid pass was not accepted. But the fact remains that the petitioner was having a valid pass and the starting point is 12.25 hours.
3. In such situation, the Secretary of the Panchayat who issued pass, the Police Officer who registered a case and the officer in charge of the Kadavu Register shall be heard to verify the bonafides of the petitioner. The Sand Act imposes harsh punishments. The reason for imposing such harsh punishments is on account of causing imbalance to the ecology and in-discriminated removal of the sand.
However, at the same time, the right of the individual also should not be forgotten and if there is any benefit of doubt that should go in favour of the accused. It must be established that the petitioner has committed the alleged offence. Though evidence, as such, applicable under the Evidence Act may not be warranted, but nevertheless preponderance of probabilities of commission of the offence must be established.
4. In the facts and circumstances of the case, I am of the view that the matter require re-consideration. The District Collector shall hear the petitioner, the Officer who maintained the Kadavu Register and the Police Officer, to arrive at a just conclusion in the matter. In view of the matter, the impugned orders are set aside. The matter is relegated to the District Collector to hear all the parties. The decision shall be concluded within a period of six weeks.
Considering the facts and circumstances, interim custody shall be given to the petitioner on deposit of a sum of Rs.30,000/- (Rupees Thirty thousand only) with two solvent sureties and also surrendering the R.C. Book.
The Writ Petition is disposed of accordingly.
Sd/-
A. MUHAMED MUSTAQUE, JUDGE jjj