IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.10995/2019 Between:
Wilfered Fernandes S/o Albert Fernandes Age 47 years, R/at Kadavinabagilu Udyavara Village, Udupi Taluk – 576101. ... Petitioner (By Sri.Vishwajith Shetty S, Advocate) And:
1. State of Karnataka Represented by its Secretary to Department of Mines and Geology M.S.Building, Dr.Ambedkar Veedhi, Bengaluru – 560 001.
2. The Senior Geologist, Department of Mines and Geology Udupi – 576101. ... Respondents (By Sri.S.Rachaiah, HCGP) This Writ Petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Criminal Procedure Code praying that this Hon’ble Court may be pleased to declare Rule 43(8) of the Karnataka Minor Mineral Concession Rules 1994 as Ultra-Vires, Arbitrary and violative of Articles 14, 19 and 21 of the Constitution of India, and repugnant/contrary to the provisions of the Mines and Minerals (Development and Regulations) Act 1957 and the Code of Criminal Procedure, 1973, or alternatively to read down as Rule 43(8) of K.M.M.C Rules by leaving the same to the discretion of the jurisdictional Court to impose suitable/reasonable conditions and etc.
This Writ Petition coming for preliminary hearing this day, the Court made the following:
O R D E R Heard Sri.Vishwajith Shetty.S, learned Advocate appearing for petitioner and Sri. S. Rachaiah, learned HCGP appearing for respondent No.1-State. Perused case papers.
2. Vehicle TATA ACE bearing registration No.KA-20-DE-2675 came to be seized on 19.11.2018 alleging commission of offences punishable under Sections 4, 4(1A), 21 of Mines and Minerals (Development and Regulations) Act, 1957 and Section 3(1), 42(1) and 44 of Karnataka Minor Minerals Concession Rules. Thereafter, a private complaint came to be filed in P.C.R.No.1099/2018 on 21.11.2018. Thus, vehicle has been seized even before filing of the complaint.
3. Prima facie, seizure is bad in law. Learned Special Judge has directed interim custody of the vehicle to the petitioner subject to conditions and one such condition imposed is, furnishing of bank guarantee to the tune of Rs.2,00,000/-.
4. Since seizure of the vehicle is prior to filing of the private complaint and same being illegal, this Court by following earlier decisions has held that unless there are special reasons, stringent condition should not be imposed vide SHRI SHAMBULINGAPPA vs THE STATE OF KARNATAKA (Crl.P.No.100868/2018 decided on 25.04.2018).
5. In these circumstances, order passed by II Additional Civil Judge and JMFC, Udupi dated 25.01.2019 directing the petitioner to furnish bank guarantee to the tune of Rs.2,00,000/- requires to be relaxed.
6. Hence, I proceed to pass the following:
ORDER (i) Criminal Petition is hereby allowed.
(ii) The condition imposed to furnish bank guarantee to the tune of Rs.2,00,000/- by II Additional Civil Judge and JMFC, Udupi by order dated 25.01.2019 in C.C.No.3424/2018 is hereby relaxed and it is ordered that vehicle should be released subject to the petitioner furnishing indemnity bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the jurisdictional Court.
SD/- JUDGE NBM