Jineesh Philip v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 27TH DAY OF FEBRUARY 2013/8TH PHALGUNA 1934** **Crl.MC.No. 519 of 2013 () -------------------------** **AGAINST THE ORDER IN CMP 5687/2012 of J.M.F.C.,THALASSERY, DATED 18-12-2012.** **CRIME NO. 1329/2012 OF VALAPPATANAM POLICE STATION, KANNUR.** **PETITIONER/ACCUSED:-** **------------------** **JINEESH PHILIP AGED 23 YEARS S/O.PJILIP MOOLIYAN HOUSE KUDIYANMALA KANNUR DISTRICT** **BY ADVS.SRI.BLAZE K.JOSE SMT.N.DEEPA SMT.DAYANA DAVID** ## **RESPONDENTS/COMPLAINANT:-** **-----------------------** **1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PIN 682031** **2. SUB INSPECTOR OF POLICE(SHO) VALAPATTANAM POLICE STATION** **BY PUBLIC PROSECUTOR SMT.S.HYMA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 519 of 2013.** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **ANNEXURE:1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF A LORRY BEARING REGISTRATION NO.KL-59E/1198.** **ANNEXURE:2 TRUE COPY OF A GOODS CARRIAGE PERMIT ISSUED BY THE R.T.A., THALIPARAMPA. ANNEXURE:3 TRUE COPY OF THE PASS ISSUED UNDER THE KMMC RULES, DATED 5.11.2012. ANNEXURE:4 TRUE COPY OF THE FIR IN CRIME NO.1329 OF 2012 OF VALAPATTANAM POLICE STATION. ANNEXURE:5 TRUE COPY OF THE APPLICATION FILED AS CMP.NO.5687/2012 BEFORE THE JFMC-II, KANNUR.** **ANNEXURE:6 TRUE COPY OF THE VALUATION CERTIFICATE OF THE RTO, KANNUR OF THE LORRY BEARING REGISTRATION NO.KL-59E/1187.** **ANNEXURE:7 TRUE COPY OF THE ORDER CMP.NO.5687/2012 BEFORE THE JFMC-II, KANNUR DTD.18/12/12.** ## **RESPONDENTS' EXHIBITS:- NIL.** ## **// true copy //** **PA TO JUDGE.** ## _**Kvs/-**_ ## **C.T.RAVIKUMAR, J.** = = = = = = = = = = = = Crl.M.C.No.519 of 2013. = = = = = = = = = = = = Dated this the 27[th] day of February, 2013. ## **O R D E R** The petitioner is the accused in Crime No.1329/2012 of Valapattanam Police Station in Kannur District registered alleging commission of offence under Section 20 of the Kerala Protection of the River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as 'the Sand Act'). This petition is filed on being aggrieved by and dissatisfied with Annexure-7 order passed by the Court of the Judicial First Class Magistrate-II, Kannur in CMP.No.5687/2012. Essentially, that was a petition filed under Sec.457 of the Code of Criminal Procedure seeking interim custody of the lorry bearing registration No.KL-59E 1187 involved in the alleged offence and belonging to the petitioner. Annexure-4 is the FIR registered in that Court and it would reveal that the allegation against the petitioner is transportation of sand without requisite documents under **Crl.M.C.No.519/2013.** 2 Sec.20 of the Sand Act. The petitioner contends that he is the registered owner of the vehicle involved in the case. It is the specific case of the petitioner that the sand in question was being transported on the strength of Annexure-3 pass issued by the competent authority under the provisions of Rule 48K and 58(4) of the Kerala Minor Mineral Concession Rules, 1967. A scanning of the contentions raised in this case and a careful consideration of the arguments advanced by the counsel appearing for the petitioner would reveal that essentially the grievance of the petitioner is that Annexure-7 order was passed mechanically. As noticed hereinbefore, Annexure-4 FIR was registered against the petitioner for transporting sand without requisite documents under Sec.20 of the Sand Act. As noticed earlier, the petitioner asserts that sand was being transported on the strength of Annexure-3 pass and the pass was very much with the petitioner at the relevant point of time when it was transported. Be that as it may, the question involved in this case is whether the order in **Crl.M.C.No.519/2013.** 3 Annexure-7 imposing conditions requiring the petitioner to deposit Rs.2,25,600/- being 30% of the value of the vehicle involved in this case is sustainable? I have already adverted to the contentions raised on behalf of the petitioner. The learned Public Prosecution vehemently resisted the contentions of the petitioner. The learned Public Prosecutor contends that Annexure-4 carries necessary ingredients to attract Sec.20 of the Sand Act and at any rate, such allegations cannot be considered or decided in this case. He further contended that the learned Magistrate could not have gone into such aspects at the stage of consideration of the petition for the interim custody of the said vehicle. The learned Public Prosecutor also submitted that the impugned order cannot be said to be illegal in the light of the decision of a Full Bench of this Court in **Shan C.T. v. State of Kerala** reported in **2010 (3) KLT 413 (FB)** . In the context of the rival contentions, it is relevant to refer paragraphs 11 and 13 of the said decision referred supra. They read thus:- **Crl.M.C.No.519/2013.** 4 “11. In the circumstances, we are of the opinion that while making any order for interim custody of the vehicle confiscated under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, necessary condition for safeguarding the full value of the vehicle is to be stipulated. 13. We also deem it appropriate to direct that the proceedings under S.23 of the above mentioned Act confiscating the vehicle shall be concluded within six weeks from the date of seizure of the vehicle as far as possible, in which case the need to consider the interim custody of the vehicle may not normally arise. But if for any reason the authorities under the Act are not able to conclude the proceedings within the period of six weeks mentioned above, the interim custody of the vehicle shall be given to the owner on the conditions specified earlier. It is also made clear that to avoid any controversy and the allegations of undue delay on the part of either party to the proceedings, the competent authority shall put the owner on notice within a period of three days of the date of seizure and the owner or any other person interested in the vehicle shall file his objections to the confiscation within a week thereafter.” It is evident from the decision in Shan's case (supra) that while making an order for interim custody of the vehicle in favour of the owner under the Kerala Protection of River Banks and Regulation of Sand Act, necessary conditions for safeguarding the full value of the vehicle are to be **Crl.M.C.No.519/2013.** 5 stipulated. The Full Bench went on to observe that interim custody of any such vehicle would be granted on condition of deposit of 30% of the value of the vehicle as demanded by the appropriate authorities under the Motor Vehicles Act in cash and a further condition that the owner of the vehicle should provide either bank guarantee or immovable property security for the value of the vehicle. In the light of the said decision I cannot uphold the contentions raised by the learned counsel for the petitioner that the direction in Annexure-7 order requiring the petitioner to deposit 30% of the valuation amount in cash is illegal and invalid. As already noticed, such a condition has to be imposed in the light of the decision in Shan's case while ordering interim custody of the vehicle. In the said circumstances, I do not find any merit in the contentions raised by the learned counsel for the petitioner. However, it is made clear that in case the petitioner has got any grievance with respect to the determination of the value of the vehicle, it will be open to him to resort to appropriate remedy to seek proper 6 ## **Crl.M.C.No.519/2013.** determination of the value of the vehicle so as to fix 30% of the value to be paid in cash. Subject to the above observation this Crl.M.C. is dismissed. **Sd/-** **C.T.RAVIKUMAR, (Judge)** **Kvs/-** **// true copy //** **PA TO JUDGE.**