High Court of KeralaSingle Judge2014-07-25Disposed of

Ashraf v. State of Kerala

Case / Petition Number:Crl.MC.No.4222 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-07-25
Court Decision / Holding: The High Court partially allows the petition by liberalizing the security terms in light of Section 23A and related decisions. It sets that the petitioner shall deposit 10% of the vehicle’s value (₹72,500) and execute a bond for the balance (₹6,52,500) with two solvent sureties for similar sums, to the satisfaction of the Judicial First Class Magistrate Court-II, Hosdurg. The release of the vehicle will continue until the completion of confiscation proceedings under the Act. Other conditions imposed by the lower court are retained. The petition is disposed of with modified terms and directions to communicate this order to the concerned court.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Ashraf

Respondents

The State of Kerala, through the Station House Officer, Nileshwar Police Station, Kasaragod District, represented by the Public Prosecutor, High Court of Kerala, Ernakulam-682031

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. Madhu
• C. R. Saradamani

Counsels for Respondents

• Smt. Hyma

Case Synopsis & Summary

This High Court of Kerala, in a criminal miscellaneous case, addresses Ashraf’s challenge to an interim custody order of a vehicle seized in connection with a sand mining violation under the Protection of River Banks and Regulation of Removal of Sand Act, 2001. The Judicial First Class Magistrate Court-II, Hosdurg, had granted interim custody of vehicle KL13-K-2581 on deposit of 30% of the assessed value and required security for the balance via bank guarantee or immovable property, with the vehicle to be produced as required. The petitioner argued that the order did not properly take into account the amended legal framework, notably Section 23A introduced by Amendment Act XV/2013, effective from 25 November 2012, and sought relief within a framework of liberalized security. Counsel urged that custody could be granted on a bond with a reduced initial deposit, citing prior Kerala decisions, and the Aboobacker v. State of Kerala line of reasoning which endorses liberal construction of security. The State contended there was no illegality and that the magistrate had discretion to impose conditions to safeguard ends of justice. The High Court, aligning with the later Aboobacker decision and acknowledging amendments, modifies the security terms: deposit 10% of the vehicle’s value and execute a bond for the balance with two solvent sureties, retaining other conditions. The vehicle may be released pending completion of confiscation proceedings, and the petition is disposed of on these revised terms, with directions to communicate the order to the concerned court.

Provisions of Law Cited

Protection of River Banks and Regulation of Removal of Sand Act, 2001 — Section 23A (as amended by Amendment Act XV/2013)Code of Criminal Procedure, Section 482Code of Criminal Procedure, Section 457

Legal Doctrines & Maxims

Liberal construction of security under Section 23A (Aboobacker v. State of Kerala)
Ends of justice
Bond with sureties can substitute for bank guarantee for the balance amount

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the interim custody conditions imposed by the Judicial First Class Magistrate-II, Hosdurg (i) wrongly required 30% deposit of the vehicle’s value and (ii) demanded security for the balance via bank guarantee or immovable property, without adequately applying Section 23A of the Protection of River Banks and Regulation of Removal of Sand Act, 2001 (as amended). Citing Shan V. State of Kerala (2010 (3) KLT 413) and Sujith V. State of Kerala (2012 (2) KLT 547), the petitioner seeks custody on a bond with a modest upfront amount and liberal security. He relies on Aboobacker v. State of Kerala (2014 (3) KLT 26) to justify liberal construction of security to meet ends of justice.

Contentions of Respondents

The State submits there is no illegality in the magistrate’s order; the court has discretion to impose conditions to safeguard ends of justice in a case involving confiscation under the Act. The amendment Section 23A was binding, and interim custody terms were properly within the magistrate’s purview. The State argues that deposit and bank-security conditions are standard tools to ensure compliance and do not undermine the objective of the Act.”

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shan V. State of Kerala	2010 (3) KLT 413	Mentioned Only	Cited as a background consideration; the court notes the decision but does not adopt its specific holdings in the present order.
Sujith V. State of Kerala	2012 (2) KLT 547	Mentioned Only	Referenced as part of the suite of authorities considered by the magistrate; no direct adoption of its holdings is stated.
Aboobacker v. State of Kerala	2014 (3) KLT 26	Positive	Explicitly relied upon to justify liberal construction of security and deposit arrangements under Section 23A.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936** ## **Crl.MC.No. 4222 of 2014** **---------------------------------** **AGAINST THE ORDER/JUDGMENT IN CMP 4228/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,HOSDRUG DATED 23-06-2014 CRIME NO. 472/2014 OF NILESWAR POLICE STATION , KASARGOD** **-------------------** ## **PETITIONER/PETITIONERS:** **---------------------------------------** **ASHRAF, AGED 38 YEARS, S/O. C.H.AHAMMED, RESIDING AT KINANOOR, KOLLAMPARA P.O., KILIYALAM VILLAGE, KASARAGOD DISTRICT.** **BY ADVS.SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENT/STATE:** **-------------------------------** **THE STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, NILESHWAR POLICE STATION, KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **BY PUBLIC PROSECUTOR SMT. HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 4222 of 2014** **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------------------------** **ANNEXURE A1- THE TRUE COPY OF THE ORDER DATED 23-6-2014 IN C.M.P.NO. 4228/2014 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, HOSDURG.** **RESPONDENT(S)' ANNEXURES** **--------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.4222 of 2014 -------------------------------------------------Dated this the 25[th] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner challenging the order passed by the Judicial First Class Magistrate Court-II, Hosdurg, in C.M.P.No.4228/2014 in Crime No.472/2014 of Nileshwar police station, under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that, the petitioner is the registered owner of the vehicle bearing registration No.KL13-K-2581, which was seized by the respondent on the allegation that the vehicle was used for transporting of river sand in violation of the provisions of the Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter called 'the Act') and a crime has been registered as Crime No.472/2014 of Nileshwar police station. The petitioner filed C.M.P.No.4228/2014 before the Judicial First Class Magistrate Court-II, Hosdurg, for interim custody of the vehicle. The learned magistrate by Annexure-AI order granted interim CRMC.4222/ 2014 2 ## custody on conditions inter-alia that: 1. Petitioner shall deposit 30% of the value of the vehicle assessed by Joint RTO as 80,000/- ₹ 2. Petitioner is directed to furnish bank guarantee or immovable property as security for the balance amount of the vehicle. 3. The petitioner shall produce the vehicle before the court as an when required. 4. The amount deposited and security furnished will follow the final out come of the confiscation proceedings. 5. The petitioner shall produce authenticated photograph of the vehicle also original documents of the vehicle for verification. The above conditions were being challenged by the petitioner by filing this petition. 3. Considering the nature of relief claimed in the petition, this court felt that the petition can be disposed of at the admission stage itself, after hearing the learned counsel for the petitioner and the learned Public Prosecutor. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The Counsel for the petitioner submitted that, in CRMC.4222/ 2014 3 fact the condition imposed by the court below is not proper in view of inclusion of Section '23A' to the above said Act by Amendment Act XV/2013 which came into force from 25.11.2012. Further this court in another case granted custody by executing a bond alone. 6. The application was opposed by the learned Public Prosecutor on the ground that, there is no illegality in the order passed. A discretion has been given to the court to impose any condition. 7. It is an admitted fact that, Nileshwar police had seized the vehicle with No. KL-13-K/2581, which belongs to the petitioner, alleging that, it was used for the commission of the offence under the above said Act. It is also an admitted fact that the petitioner had filed an application for interim custody under Section 457 of the Code of Criminal Procedure and the same was allowed by Annexure-AI order with the above conditions. 8. Condition Nos. 1 and 2 are being challenged by the petitioner now. It appears that, the learned magistrate had, keeping in mind the decision of this court in **Shan V. State of Kerala (2010 (3) KLT 413)** and **Sujith V. State of Kerala** CRMC.4222/ 2014 4 **(2012 (2) KLT 547),** imposed these conditions and the present Section 23A, which has been incorporated by Amendment Act XV/2013, which came into force with effect from 25.11.2012 has not been taken note of by the court below. 9. After the above decisions, the Act has been amended by incorporating Section 23A, which deals with the procedure to be followed after confiscation, and also power of the court for giving interim custody. This court has considered that provision in **(2014 (3) KLT 26) Aboobacker v. State of Kerala** , wherein this court has held that: “The security mentioned therein, has to be liberally construed and a portion of the amount can be directed to be deposited and for the balance amount, the personal bond with sureties can be directed to be executed and that will be sufficient and that will meet the ends of justice”. The vehicle has been valued at 7,25,000/- but in the₹ condition, it was mentioned as 30% of the value namely ₹80,000/-, which appears to be wrong. So directing the petitioner to deposit 10% of the value assessed for the vehicle and CRMC.4222/ 2014 5 executing a bond for the balance amount with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-II, Hosdurg, will be sufficient and that will meet the ends of justice. So condition imposed by the court below, directing the petitioner to deposit 30% of the value of the vehicle namely ₹80,000/and furnish bank guarantee or property security for the balance amount imposed by the court below are set aside and the same is modified as follows: The petitioner is directed to deposit 10% of the value assessed for the vehicle namely 72,5000/- and₹ execute a bond for the balance amount of ₹ 6,52,500/- with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-II, Hosdurg. Further, the release of the vehicle will be till the completion of confiscation proceedings under this Act. Other conditions imposed by the court below is retained. With the above modification of the conditions imposed, this criminal miscellaneous case is disposed of. Office CRMC.4222/ 2014 6 is directed to communicate this order to the concerned court and also hand over a copy of the order to the counsel for the petitioner to produce the same before the court below. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss