Basheer K.K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 29TH DAY OF AUGUST 2014/7TH BHADRA, 1936** ## **Crl.MC.No. 4843 of 2014 ()** **--------------------------CRMP. NO.5689/2014 OF JUDICIAL FIRIST CLASS MAGISTRATE COURT,TALIPARAMBA ----------------CRIME NO. 121/2014 OF TALIPARAMBA POLICE STATION , KANNUR DISTRICT ------------------** **PETITIONER/PETITIONER:** **-----------------------------------------** **BASHEER K.K.,S/O. UMMER, K.K.HOUSE, PERUMALABAD, CHAPPARAPPADAVU P.O., KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADVS.SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI SRI.J.ABHILASH** **RESPONDENT/STATE: -----------------------------------** **STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, THROUGH S.H.O. TALIPARAMBA POLICE STATION, KANNUR DISTRICT.** **BY PUBLIC PROSECUTOR SMT. MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 4843 of 2014 () --------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ---------------------------------------------** **ANNEX A1TRUE COPY OF THE ORDER IN C.M.P.NO. 5689/2014 OF J.F.C.M. COURT, TALIPARAMBA DATED 23-7-2014.** **RESPONDENT(S)' ANNEXURES: NIL** **/TRUE COPY/ P.A.TO.JUDGE** **==> picture [15 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> sts<br>**----- End of picture text -----**<br> ## **K. Ramakrishnan, J. ============================== Crl.M.C.No.4843 of 2014 ============================== Dated this, the 29[th] day of August, 2014.** ## **O R D E R** This is an application filed by the petitioner challenging the order passed by the Judicial First Class Magistrate Court, Taliparamba in Crl.M.P.No.5689/14 in Crime No.121/14 of Taliparamba Police Station under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that petitioner is the registered owner of the goods carriage vehicle with Registration No.KL-59C-2516. The vehicle was intercepted by the Sub Inspector of Police, Taliparamba Police station when he found that vehicle is being used for illegal transportation of river sand and the Sub Inspector had seized the vehicle and registered Crime No.121/14 of Taliparamba police station alleging commission of the offence under Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter called 'the Act'). The vehicle was seized by the police and produced before Judicial First Class Magistrate Court, Taliparamba. Petitioner filed Crl.M.C.No.4843 of 2014 : 2 : Crl.M.P.No.5689/14 before the Judicial First Class Magistrate, Taliparamba for interim custody of the vehicle. But, the learned magistrate dismissed the application by Annexure A1 order stating that since a report is being filed to the Sub Divisional Magistrate Court, Thalassery for confiscation proceedings, petitioner is not entitled to get the interim custody and dismissed the application which is being challenged by the petitioner by filing this petition. 3. Heard the Counsel for the petitioner and the learned Public Prosecutor. 4. The Counsel for the petitioner submitted that even though a power has been vested in the Sub Divisional Magistrate to initiate confiscation proceedings under the Act, the power of the court to grant interim custody of the vehicle has not been taken away and that is clear from Section 23A of the Act which has been incorporated later that has not been considered by the court below. 5. The application was opposed by the Public Prosecutor. 6. It is an admitted fact that on 30.01.2014 at about 6.30 p.m, the Sub Inspector of Police, Taliparamba police Crl.M.C.No.4843 of 2014 : 3 : station had intercepted the Lorry with No.KL-59C-2516 when it was found to be transporting river sand without any documents and having satisfied that an offence under the Act has been committed, the Sub Inspector of Police, Taliparamba seized the vehicle and registered Crime No.121/14 of Taliparamba police station under Section 20 of that Act and the seizure of the vehicle was intimated to the court. The petitioner, being the registered owner of the vehicle, filed Crl.M.P.No.5689/14 before the Judicial First Class Magistrate Court, Taliparamba for interim custody of the vehicle and the learned magistrate by Annexure A1 order, dismissed the application only on the ground that the Station House Officer, Taliparamba filed a report stating that a report being submitted to Sub Divisional Magistrate, Thalassery for confiscation proceedings. The court below failed to look into the provisions of the Act. In fact, merely because confiscation proceedings are to be initiated by another authority under the Act is not a ground for denial of the relief of interim custody if a crime has been registered and the vehicle has been produced before that court. In such circumstances, the magistrate will be getting a power either under Section 451 or 457 of the Crl.M.C.No.4843 of 2014 : 4 : Code of Criminal Procedure for considering the question of granting interim custody where no confiscation proceedings has already been initiated. But, in this case, Act has been amended and Section 23A has been incorporated which came into effect from 25.11.2012 which deals with the procedure to be followed after seizure of the vehicle and power of the magistrate under that Section which reads as follows. _“23A. Confiscation of sand, vehicles, etc., (1) where any property is seized under Section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of propriety is received, the Police Officer concerned shall take steps under Section 102 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).”_ _(2) Where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall be taken as per the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and, if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them are not satisfactory, they shall be subjected to confiscation under subsection (4):_ _Provided that the disposal or release of the properties seized, for its safe custody, to any person, shall be on sufficient security and such disposal or release shall be till the completion of the confiscation proceedings under this Act:_ _Provided further that the sand seized shall not, for any reason be released to any person and the same shall be subjected to confiscation under sub-section (4)._ Crl.M.C.No.4843 of 2014 : 5 : _(3) Where a report under sub-section (1) is received before a Sub Divisional Magistrate, a notice requiring to submit in writing within the stipulated time as stated in the notice, to show cause the reasons, if any, why the property seized under section 23 shall not be confiscated, shall be issued to the owner of, or the person having control of, the vehicle, tool, implements, loading equipment, or other article._ _(4) Where the owner of the properties seized or the person having control of the same do not give explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the properties seized under section 23 have to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed to its owner or the person having its control:_ _Provided that the owner of the properties seized or the person having its control shall be given the liberty to reclaim it in lieu of the properties confiscated, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector._ _Provided further that the sand confiscated shall not for any reason, be released by realising the value._ _(5) The amount received under sub-section (4) shall, subject to the provisions of section 23D, be remitted to the River Management Fund._ _(6) The sand confiscated under sub-section (4) shall be sold to Nirmithi Kendra or to 'Kalavara' at such rate, as may be fixed by the Public Works Department from time to time and such amount shall be remitted to the River Management Fund._ _(7) The confiscation under this section shall be in addition to the penalty provided for the offence under this Act.”_ 7. Section 23A(2) of the Act gives power for the magistrate to consider the interim custody of the vehicle and even if an interim custody is ordered, that will be only till the Crl.M.C.No.4843 of 2014 : 6 : confiscation proceedings to be completed by the authorities under the Act. Further, this was considered by this court in the decision reported in **Aboobacker v. State of Kerala [2014 (3) KLT 26].** These aspects were not considered by the court below while disposing this petition. Since the reason stated by the court below for dismissal of the application is unsustainable in law, this court feels that the order passed by the court below has to be set aside and the matter has to be remitted to the court below for fresh disposal in accordance with law. So, the petition is allowed and the order of dismissal passed by the court below in Crl.M.P.No.5689/14 in Crime No.121/2014 of Taliparamba Police Station is set aside and the matter is remitted to the court below for fresh disposal in accordance with law after considering the impact of Section 23A and the decision in **Aboobacker's case** (cited supra). With the above direction and observation, the petition is disposed of. Sd/- ## **K.Ramakrishnan, Judge.** Bb _[True copy]_ _P.A to Judge_