IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04th DAY OF JANUARY, 2019 BEFORE THE HON’BLE Mr.JUSTICE P.S.DINESH KUMAR W.P.Nos.28028/2018 & 28630-631/2018 (GM-RES) BETWEEN:
1. Sri.Prashant Kumar S/o Kriahnappa Poojary Aged about 30 years Resident of H.No.#2/52 Salmara, Thenkabettu, Uppoor Post, Udupi Taluk and District – 576105.
2. Sri.Wilfred Mascarenhas S/o Cyril Mascarenhas Aged about 33 years Resident of H.No.#4-114 Belmar Aroor Post Udupi Taluk and District – 576213 3. Sri.Peter D’Souza S/o Joseph D’Souza Aged about 45 years “Antony House”, Thenkabettu post, Uppoor village, Udupi Taluk and District – 576105.
...Petitioners (By Sri.M.Aruna Shyam, Advocate) AND:
1. The State of Karnataka Represented by Secretary, Mines and Geology Department, M.S.Building, Bangalore-560 001.
2. The Geologist Department of Mines and Geology Rajathadri, Manipal, Udupi District – 576104. (By Sri. S.Rachaiah, HCGP) ..Respondents These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India praying to declare Rule 43(8) of the Karnataka Minor Mineral Concession Rules, 1994 as ultra-vires, arbitrary, violative of Articles 14, 19 and 21 of the Constitution of India, 1950 and Repugnant/contrary to the provision of the Mines and Minerals (Development and Regulation) Act, 1957 and the Code of Criminal Procedure, 1973 or alternatively read down Rule 43(8) of the Karnataka Minor Mineral Concession Rules, 1994 by leaving the same to the discretion of the jurisdictional Court to impose suitable/reasonable conditions and quash/modify/relax order passed by the I Addl.Civil Judge and JMFC, Udupi, in PCR No.33/2018 vide order dated 06.06.2018 (Annexure-A) to the extent of directing petitioners No.1, 2 and 3 to furnish Bank Guarantees of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand), Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand), Rs.17,50,000/- (Rupees Seventeen Lakhs Fifty Thousand) respectively, in favour of the jurisdictional Court.
These Writ Petitions coming on for Preliminary Hearing ‘B’ Group this day, the Court made the following:-
ORDER Heard Shri M. Aruna Shyam, learned Advocate for the petitioners and Shri S.Rachaiah, learned HCGP for the State.
2. Petitioners are the owners of the following vehicles;
(i) Tipper Lorry bearing Registration No.KA-20 C-4745 (Petitioner No.1- Sri. Prashant Kumar) (ii) Tipper Lorry bearing Registration No.GA-02 V-7745 (Petitioner No.2 – Sri. Wilfred Mascarenhas) (iii) Tipper Lorry bearing Registration No.KA-35- 6943 and Tata Hitachi bearing Registration No.TATA-EX 70 - 0703-6321 (Petitioner No.3 – Sri. Peter D’souza) 3. On 21.05.2018, the Officials of the Department of Mines and Geology, Udupi and the Police jointly raided and seized the aforesaid vehicles on the allegation that the said vehicles were involved in illegal sand mining. On 23.05.2018, the jurisdictional Geologist filed a private complaint under Section 200 of Cr.P.C., against the petitioners and other accused alleging offences punishable under Sections 4, 4(1A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Rules 3(1), 42(1), 43(A) and 44 of the Karnataka Minor Minerals Concession Rules, 1994.
4. Petitioners filed the applications under Section 457 of Cr.P.C., before the jurisdictional Magistrate for interim custody of the aforesaid vehicles in question. The learned Magistrate has allowed the applications and ordered to release the vehicles in question by imposing certain conditions, one of which is to furnish the Bank Guarantee for different amounts in respect of aforesaid four vehicles.
5. Learned Advocate for the petitioners submits that seizure of the aforesaid vehicles in question before registering a private complaint is bad in law. He further submits that learned Magistrate has allowed the applications but imposed a condition to furnish Indemnity Bonds and Bank Guarantees for each of the vehicles in question. He argued that as a seizure is prior to filing of a private complaint, the amended provisions of the Karnataka Minor Mineral Concessions Rules, 1994 (for short ‘KMMC Rules’) mandating imposition of Bank Guarantee while granting interim custody of the vehicle shall not apply and accordingly, prayed that the said condition be relaxed.
6. The learned HCGP, in his usual fairness, does not dispute the facts stated hereinabove.
7. It is not in dispute that the aforesaid vehicles in question have been seized by the Officials of Department of Mines and Geology and the police prior to the date of filing of the private complaint. Therefore, the seizure is unsustainable. Consequently, the condition imposed by the learned Magistrate to furnish Bank Guarantees for each of the vehicles based on the amended provisions of KMMC Rules is harsh.
8. Accordingly, the said condition is modified and it is directed that the aforementioned vehicles belonging to the petitioners shall be released, subject to the petitioners furnishing Indemnity Bonds for each of the vehicles for the value of the vehicles with one surety for the like sum to the satisfaction of the jurisdictional Magistrate.
9. These writ petitions are accordingly disposed of.
No costs.
Sd/- JUDGE Srl.