Mohammed Ashraf v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-05-20
Court Decision / Holding: The petition is allowed. The vehicle shall be released to the petitioner on a bond of Rs. 2,30,000 with two solvent sureties, at the satisfaction of the learned Magistrate. The petitioner shall not alienate or transfer possession of the vehicle, and shall produce it as and when required. The release is subject to the final decision of the confiscation proceedings before the Revenue authorities. The CMP 507/2014 order is modified accordingly, with the interim custody conditioned but relaxable as per the present order.
Final Disposition: Petition allowed; CMP disposed of by directing release of vehicle on bond with conditions to be satisfied and subject to ongoing confiscation proceedings; Crl.M.C disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Mohammed Ashraf

Respondents

State of Kerala
Sameer
Shafeeque

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. Samsudin

Counsels for Respondents

• Sri. C.K. Jayakumar

Case Synopsis & Summary

This Criminal Misc. Case arises from an order in CMP 507/2014 of the Judicial Magistrate Court, Nilambur, relating to a car seized for allegedly transporting river sand without authority. Mohammed Ashraf, the registered owner of KL-10 AL 8050, challenges the interim custody conditions imposed under Section 457 CrPC following the seizure under Crime No. 72/2014 at Nilambur Police Station. The petitioner contends that the charge itself may be untenable and, more importantly, that the conditions attached to interim custody are onerous and legally unwarranted, particularly in light of amendments including Section 23A of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. The learned counsel for the petitioner argues for relaxation of these conditions, citing potential excesses. The Respondents’ counsel (Public Prosecutor) defends the order, while the court notes the petition’s limited scope and the need to examine the propriety of the conditions rather than the charge’s validity. Relying on the Full Bench decision in Shan v. State of Kerala (2010(2) KLJ 673), the High Court acknowledges that while the magistrate was justified in imposing conditions, they may be relaxed. Consequently, the High Court allows the petition, directing release of the vehicle on bond with security, subject to confiscation proceedings, and restraining transfer of the vehicle pending final orders.

Provisions of Law Cited

CrPC, Section 457Kerala Protection of River Banks and Regulation of Removal of Sand Act, Section 23ACrPC, 1973, Section 102

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the charge itself may be unsustainable and that the conditions imposed for interim custody are onerous and exceed legal warrant. He relies on Section 23A of the Kerala River Sand Act to argue for relaxation of the conditions and challenges the need for stringent requirements in this context. The core request is to relax or modify the interim custody conditions while keeping the vehicle released pending final confiscation proceedings.

Contentions of Respondents

The Public Prosecutor defends the magistrate’s order, emphasizing that interim custody with conditions aligns with statutory provisions and public interest in safeguarding river sand regulations. The respondents contend that the order was within the scope of Section 457 CrPC and that Section 23A contemplates confiscation mechanisms. The arguments focus on balancing the owner’s rights with regulatory safeguards and on the appropriate use of conditional release in light of the confiscation framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shan v. State of Kerala	2010(2) KLJ 673	Positive	The High Court explicitly follows the Full Bench decision in Shan v. State of Kerala to justify imposing and, importantly, relaxing conditions on interim custody where appropriate.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 20TH DAY OF MAY 2014/30TH VAISAKHA, 1936** **Crl.MC.No. 2654 of 2014 ()** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN CMP 507/2014 of J.M.F.C.,NILAMBUR DATED CRIME NO. 72/2014 OF NILAMBUR POLICE STATION , MALAPPURAM** **PETITIONER(S)/PETITIONER:** **-------------------------** **MOHAMMED ASHRAF, S/O.ALIKKUTY, KALLINGAL HOUSE, POOVATHINKKAL.P.O OORGATIRI, PAVANNA, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. SAMEER, S/O.HYDERMAN, KUTTAKADAVATH HOUSE, POOVATHIKKAL.P.O OORGATIRI, MALAPPURAM DISTRICT-679327.** **3. SHAFEEQUE, S/O.ABOOBACKER, KALLINGAL HOUSE, PAVANNA POOVATHIKKAL.P.O, OORGATIRI, VAVANNA MALAPPURAM DISTRICT-679327.** **BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 2654 of 2014 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **------------------------** **ANNEXURE A1 COPY OF FINAL REPORT IN CRIME NO.72/2014 OF THE FILES OF JFCM COURT,NILAMBUR ANNEXURE-A2 COPY OF THE ORDER DATED 29-03-2014 IN CMP 507/2014 OF THE JFCM COURT,NILAMBUR.** **RESPONDENT(S)' EXHIBITS** **------------------------** ## **NIL** **/TRUE COPY/** **PS TO JUDGE** ## **A.HARIPRASAD, J.** **---------------------------------------------Crl.M.C.No. 2654 of 2014** **----------------------------------------------** ## **Dated this the 20[th] May, 2014** ## **O R D E R** Petitioner is aggrieved by Annexure A2 order passed by the learned Magistrate on C.M.P.No.507 of 2014. Case against the petitioner is that the car owned by him was used for transporting river sand without any authority and the vehicle was intercepted on 16.1.2014 at 3.10 hours. The petitioner claims that he is the registered owner of the car bearing registration number KL-10AL/8050. The said vehicle was taken into custody by the Sub Inspector of Police on the date of detection of the offence. 2. Heard learned counsel for the petitioner and the learned Public Prosecutor. 3. Learned counsel for the petitioner contends that the charge itself is not maintainable. However, I am not making any comment on that contention, as it is beyond the scope of this petition. Here the grievance of the petitioner is regarding imposition of conditions passed in Annexure A2 order, which according to him, are onerous in nature. Learned Magistrate allowed the petition under Section 457 of Code of Criminal Procedure with certain conditions; apparently following the Full 2 _**Crl.MC.2654/14**_ Bench decision in _**Shan v. State of Kerala**_ (2010(2) KLJ 673). The conditions are: - _“1. That the petitioner shall execute a bond for Rs.1,61,000/- with 2 solvent sureties for the like sum by furnishing bank guaranty/cash security or immovable property as security._ _2. That the petitioner shall not transfer or alter the vehicle and produce the vehicle in same condition as and when required by this court._ _3. The petitioner shall not allow the vehicle to use for transporting river sand illegally during his interim custody._ _4. The petitioner shall produce recent photographs of the vehicle with sand, if any, duly countersigned by himself and 2[nd] and 3[rd] respondents._ _5. Return the original R.C particulars and other documents after comparing with attested copies of the same._ _6. The interim custody shall be subject to the final decision of the confiscation proceedings pending before the revenue authorities.”_ 4. Learned counsel for the petitioner would submit that the 3 _**Crl.MC.2654/14**_ conditions are not legally warranted in such matters, especially in view of recently added Section 23A to the Kerala Protection of River Banks and Regulation of Removal of sand Act 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 property 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_ 4 _**Crl.MC.2654/14**_ _regarding the articles seized or where the Court is satisfied that the application to release them is not satisfactory, they shall be subjected to confiscation under sub-section (4):_ _Provided that the release of the properties seized to any person, for its safe custody, to any person or its disposal, shall be on sufficient security and such release or disposal shall only 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 subsection (4)._ _(3) Where a report under sub-section (1) is received before a Sub-Divisional Magistrate, a notice requiring to furnish in writing within the stipulated time as stated in the notice, the reasons, if any, for not confiscating the property seized under Section 23, 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 does not furnish explanation or the explanation given is not satisfactory, and the Sub-Divisional Magistrate is satisfied that the properties seized under Section 23 are to be confiscated, he shall, by an order, confiscate_ 5 _**Crl.MC.2654/14**_ _the same and the fact shall be informed in writing 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, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, in lieu of the properties confiscated:_ _Provided further that the sand confiscated shall not for any reason, be released by releasing 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 befixed 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._ 5. On hearing both sides, I am of the view that the learned Magistrate is right in imposing conditions for the release of the vehicle. However, the conditions can be relaxed. 6 _**Crl.MC.2654/14**_ In the result, the petition is allowed. In the event of the petitioner executing a bond for Rs.2,30,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate, the vehicle shall be released to him. It is made clear that the petitioner shall not alienate or hand over possession of the vehicle to any third party. The petitioner shall undertake to produce the vehicle as and when required by the learned Magistrate. The release of the vehicle to the petitioner for safe custody is subject to the result of the confiscation proceedings. The Crl.M.C is disposed of as above. **A.HARIPRASAD, JUDGE** ## **vgs**