Hussain v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936** ## **Crl.MC.No. 3427 of 2014 ()** **--------------------------CMP.NO. 287/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, MANJERI ................................ CRIME NO. 509/2012 OF AREACODE POLICE STATION , MALAPPURAM DISTRICT --------------------** ## **PETITIONER/PETITIONER :** **-----------------------------------------** **HUSSAIN, S/O.UNNEENKUTTY, THERUVAKODAN HOUSE, KINARADAPPAN AREACODE, MALAPPURAM DT.** ## **BY ADV. SRI.T.K.AJITH KUMAR** ## **RESPONDENT/RESPONDENT:** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, AREACODE, MALAPPURAM DT. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. P.MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 3427 of 2014 ()** **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: -------------------------------------------** **ANNEX.A - TRUE COPY OF THE ORDER DATED 28-4-2014 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MANJERI IN CMP. NO.287/2014** ## **RESPONDENT(S)' ANNEXURES:** **NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.3427 of 2014 -------------------------------------------------Dated this the 11[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-I, Manjeri, in C.M.P.No.287/2014 in Crime No.509/2012 of Areacode 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.KL-9F/6426, 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'). The petitioner filed C.M.P.No.287/2014 before the Judicial First Class Magistrate Court-I, Manjeri, for interim custody of the CRMC.3427/ 2014 2 ## vehicle. The learned magistrate by Annexure-A order granted interim custody on conditions inter-alia that: 1. Petitioner shall execute a bond for 1,75,000/- ₹ with two solvent sureties each for the like sum, undertaking to produce the vehicle as and when required to do so. 2. He shall not transfer or cause any alteration to the vehicle till the disposal of the case. 3. Petitioner shall Deposit 52,500/- in the court ₹ 4. Petitioner shall produce immovable property security or bank guaranty for a sum of Rs.1,22,500/- or in the alternative the sureties shall produce certified copy of the title deeds and the latest tax receipt and shall execute a bond agreeing to realise the said amount from the property and undertaking that they will not alienate or encumber the property till the disposal of the case and they will produce the original title deed as and when required. If such a bond is executed by the sureties it shall be intimated to the Sub Registry Office concerned with a specific direction to the Sub Registry to endorse the same on records so as to show it as an encumbrance. 5. A photograph of the vehicle is to be taken and the petitioner shall endorse on the backside of the photograph that it is taken in his presence, and shall sign the same. 6. A true attested photo copy of the RC shall be produced. 7. The respondent concerned shall prepare a Panchanama of the vehicle. 8. The petitioner shall file an affidavit undertaking that he will not cause the vehicle to involve in a similar crime. CRMC.3427/ 2014 3 Conditions Nos. 1, 3 and 4 are 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 counsel for the petitioner and the learned Public Prosecutor. 4. The Counsel for the petitioner submitted that, in 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 25.11.2013. Further this court in another case granted custody by executing a bond alone. 5. The application was opposed by the learned Public Prosecutor on the ground that, there is no illegality committed by the court below in the order passed. A discretion has been given to the court to impose any condition. 6. It is an admitted fact that the vehicle with No. KL-9-F/6426, which belongs to the petitioner was CRMC.3427/ 2014 4 seized, 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-A order with following conditions. 1. Petitioner shall execute a bond for 1,75,000/- ₹ with two solvent sureties each for the like sum, undertaking to produce the vehicle as and when required to do so. 2. He shall not transfer or cause any alteration to the vehicle till the disposal of the case. 3. Petitioner shall Deposit 52,500/- in the court ₹ 4. Petitioner shall produce immovable property security or bank guaranty for a sum of Rs.1,22,500/- or in the alternative the sureties shall produce certified copy of the title deeds and the latest tax receipt and shall execute a bond agreeing to realise the said amount from the property and undertaking that they will not alienate or encumber the property till the disposal of the case and they will produce the original title deed as and when required. If such a bond is executed by the sureties it shall be intimated to the Sub Registry Office concerned with a specific direction to the Sub Registry to endorse the same on records so as to show it as an encumbrance. 5. A photograph of the vehicle is to be taken and the petitioner shall endorse on the backside of the photograph that it is taken in his presence, and shall sign the same. 6. A true attested photo copy of the RC shall be produced. CRMC.3427/ 2014 5 7. The respondent concerned shall prepare a Panchanama of the vehicle. 8. The petitioner shall file an affidavit undertaking that he will not cause the vehicle to involve in a similar crime. 7. Condition Nos. 1, 3 and 4 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 (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 25.11.2013 has not been taken note of by the court below. 8. 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: CRMC.3427/ 2014 6 “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 can be directed to be executed with sureties and that will be sufficient and that will meet the ends of justice”. 9. In view of the dictum laid down in the above decision, the condition imposed by the court below, directing the petitioner to deposit 52,500/-, bond for₹ ₹ 1,75,000/- and bank guarantee of 1,22,500/- is harsh and₹ has to be set aside and the same can be modified as follows: The petitioner shall deposit 15% of the value assessed by the Motor Vehicle Department and also execute a bond for the balance amount with two solvent sureties for the like sum each to the satisfaction of that court will be sufficient and that will meet the ends of justice. So condition Nos. 1, 3 and 4 imposed by the court below are set aside and the same are modified, retaining the other conditions as follows: CRMC.3427/ 2014 7 The petitioner is directed to deposit 15% of the value assessed for the vehicle, namely ₹26,250/- and execute a bond for the balance amount of 1,48,750/- with₹ two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-I, Manjeri. 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 is directed to communicate this order to the concerned court immediately 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