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High Court of KeralaSingle JudgePetition disposed of; order modified to liberal...

KASIM, S/O ANDUKKA v. STATE OF KERALA

Case / Petition Number:Crl.MC.No.4564 of 2014
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Ramakrishnan
Judgment Date
2014-08-14
Court Decision / Holding
The High Court modified the conditions: petitioner shall deposit 15% of vehicle value (Rs.22,500) and execute a bond for the balance Rs.1,27,500 with two solvent sureties; release of the vehicle to continue till the confiscation proceedings are complete; other conditions remain in force. The petition is disposed of with directions to communicate this order to the concerned court.
Final Disposition
Petition disposed of; order modified to liberalize security deposit and provide interim custody under revised terms until confiscation.

Parties to the Case

Appellants / Petitioners

  • Kasim, S/O Andukka, aged 55 years, Arikad Kadavath, Near Railway Gate, Kumbala Post, Kasaragod District

Respondents

  • State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • S. Jiji (Adv.)

Counsels for Respondents

  • • Smt. S. Hyma (Public Prosecutor)

Case Synopsis & Summary

High Court of Kerala, Ernakulam, hears Crl.M.C. No. 4564 of 2014, challenging the order of JFMC-I, Kasaragod in CMP 7750/2013 in Crime No. 712/2013 of Kumbla Police Station under Section 482 CrPC. Kasim, the registered owner of tipper lorry KL-07 X/8361, was said to have transported sand without valid documents under the Protection of River Banks and Regulation of Removal of Sand Act, 2001. The Magistrate granted interim custody on conditions: bond Rs.1,50,000 with two sureties, cash deposit Rs.45,000, and bank guarantee or property security Rs.1,05,000, plus a prohibition on misuse and return of the vehicle as directed. Kasim challenged these conditions, arguing that Amendment Act XV/2013 (effective 25.11.2012) added Section 23A, requiring a liberal approach to security and post-seizure procedure; he cites Shan V. State of Kerala (2010 (3) KLT 413) and Sujith V. State of Kerala (2012 (2) KLT 547) as decisions contextual to interim custody. The Public Prosecutor defends the order, asserting discretion to impose conditions. The High Court notes Section 23A and, relying on Aboobacker v. State of Kerala (2014 (3) KLT 26), that security should be liberally construed and deposits balanced with bonds can meet ends of justice. It accordingly reduces the deposit to 15% of vehicle value (Rs.22,500) and directs a bond for the balance Rs.1,27,500 with two solvent sureties, retaining other conditions, until confiscation proceedings are complete. The petition is disposed of with directions to communicate the order to the lower court.

Provisions of Law Cited

Section 482 of CrPCSection 457 of CrPCProtection of River Banks and Regulation of Removal of Sand Act, 2001 – Section 23AAmendment Act XV/2013 introducing Section 23A

Legal Doctrines & Maxims

  • Security to be liberally construed (Aboobacker v. State of Kerala, 2014 (3) KLT 26)
  • Ends of justice as a guiding principle in determining appropriate security deposits

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that the magistrate’s conditions were unwarranted post-Enactment of Section 23A by Amendment Act XV/2013, effective 25.11.2012. He urged liberal construction of security and highlighted this court’s precedents (Shan V. Kerala; Sujith V. Kerala) and the practice in other cases where interim custody was granted on bond alone. He submitted the 30% deposit and bank guarantee were excessive; requested modification to align with Section 23A and to ensure release of the vehicle pending confiscation.

Contentions of Respondents

The Public Prosecutor contended there was no illegality in the magistrate’s order, and the court has discretion to impose conditions under the Act and CrPC. She argued the lower court’s approach sought to secure the vehicle and ensure compliance with proceedings; cited the existence of 23A amendments and the need to preserve confiscation objectives. While acknowledging the cited decisions, she asserted that the decision-making authority lies with the trial court and that the order should be maintained or modified only to preserve ends of justice.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Shan V. State of Kerala2010 (3) KLT 413Mentioned OnlyCited as precedent considered by the lower court; the present judgement notes it but does not rely on its holding to the extent of altering the substance of interim custody.
Sujith V. State of Kerala2012 (2) KLT 547Mentioned OnlyCited similarly to Shan; acknowledged as previous background reasoning referenced by the trial court, not adopted as controlling law by the High Court in this modification.
Aboobacker v. State of Kerala2014 (3) KLT 26PositiveApplied to justify liberal construction of security and to balance deposits with bonds to meet ends of justice; form the basis for the revised conditions.

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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** **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** ## **Crl.MC.No. 4564 of 2014** **----------------------------------** **AGAINST THE ORDER IN CRMP 7750/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KASARAGOD CRIME NO. 712/2013 OF KUMBLA POLICE STATION , KASARGOD** **---------------** ## **PETITIONER(S)/PETITIONER:** **----------------------------------------** **KASIM, S/O.ANDUKKA, AGED 55 YEARS, ARIKAD KADAVATH, NEAR RAILWAY GATE, KUMBALA POST, KASARAGOD DIST.** **BY ADV. SRI.S.JIJI** ## **RESPONDENT(S)/STATE:** **------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 4564 of 2014** **----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES** **------------------------------------------** **ANNEXURE-A1: CERTIFIED COPY OF ORDER IN C.M.P NO.7750/2013 OF JFMC-I, KASARAGOD.** **RESPONDENT(S)' ANNEXURES --------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K. Ramakrishnan, J. ============================= Crl.M.C.No.4564 of 2014 ============================= Dated this, the 14[th] day of August, 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, Kasaragod, in C.M.P.No.7750/2013 in Crime No.712/2013 of Kumbala 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 Tipper Lorry bearing registration No.KL-07 X/8361, which was seized by the respondent on the allegation that the vehicle was used for transportation of the sand without any valid documents 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.7750/2013 before the Judicial First Class Magistrate Court-I, Kasaragod, for interim custody of the vehicle. The learned magistrate by Annexure-I order granted interim custody on conditions inter-alia that: Crl.M.C.No.4564 of 2014 : 2 : 1. Petitioner shall execute bond for Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) with two solvent sureties who each shall execute a bond for the like sum. 2. Petitioner shall Deposit Rs. 45,000/(Rupees Forty Five thousand only) before this court in cash. 3. Petitioner shall produce bank guarantee or property security for Rs.1,05,000/-(Rupees One Lakh Five Thousand only) before this court. The above conditions 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. Heard the Counsel for the petitioner and the learned Public Prosecutor. 5. 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 25.11.2012. Further, this court in another case, granted custody by executing a bond alone. Crl.M.C.No.4564 of 2014 : 3 : 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 Kumbala police had seized the vehicle with No.KL-07 X/8361, 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-I order with following conditions. 1. Petitioner shall execute bond for Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) with two solvent sureties who each shall execute a bond for the like sum. 2. Petitioner shall Deposit Rs. 45,000/(Rupees Forty Five thousand only) before this court in cash. 3. Petitioner shall produce bank guarantee or property security for Rs.1,05,000/-(Rupees One Lakh Five Thousand only) before this court. 4. Petitioner shall not use or cause the said vehicle be used for unlawful activities. 5. Petitioner shall produce back the said vehicle as and when directed. Crl.M.C.No.4564 of 2014 : 4 : 8. Condition Nos. 1 to 3 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 25.11.2012 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 seizure, and also power of the court for giving interim custody. This court has considered that provision in **Aboobacker v. State of Kerala [2014 (3) KLT 26]** , 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 sufficient sureties can be directed to be executed and that will be sufficient and that will meet the ends of justice”. Crl.M.C.No.4564 of 2014 : 5 : 10. In view of the dictum laid down in the above decision, the condition imposed by the court below, directing the petitioner to deposit 30% value of the vehicle and furnish bank guarantee for the balance amount can 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 to 3 imposed by the court below are set aside and the same are modified, retaining the other conditions as follows: The petitioner is directed to deposit 15% of the value assessed for the vehicle, namely Rs.22,500/- and execute a bond for the balance amount of Rs.1,27,500/- with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-I, Kasaragod. 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. Crl.M.C.No.4564 of 2014 : 6 : 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 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.** Bb _[True copy]_ _P.A to Judge_