High Court of KeralaSingle Judge2014-08-25Disposed of with modification of interim custod...

Moideen B.T. v. State of Kerala

Case / Petition Number:Crl.MC.No.4825 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-08-25
Court Decision / Holding: Condition Nos. 1 to 3 imposed by the lower court are set aside and modified as follows: the petitioner shall deposit 10% of the vehicle’s value (Rs. 74,000) and execute a bond for the balance (Rs. 6,66,000) with two solvent sureties for the like sum, to the satisfaction of the JFCM, Kasaragod. Other conditions remain in force. Release of the vehicle shall be till the completion of confiscation proceedings under the Act. The office is directed to communicate this order to the concerned court. The criminal miscellaneous case is disposed of with these modifications.
Final Disposition: Disposed of with modification of interim custody conditions; release of vehicle subject to deposit/bond and pending confiscation proceedings.

Parties to the Case

Appellants / Petitioners

Moideen B.T.

Respondents

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

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Hemalatha
• Sri. Binu George

Counsels for Respondents

• Smt. Sareena George, Public Prosecutor

Case Synopsis & Summary

Moideen B.T., the registered owner of motor vehicle KL-14-L-4510, challenges an order of the Judicial First Class Magistrate, Kasaragod, granting interim custody of the seized vehicle under the Protection of River Banks and Regulation of Removal of Sand Act, 2001 after its seizure for alleged sand transport. The Magistrate had conditioned release on a bond of Rs. 7.4 lakh, cash deposit of Rs. 2.2 lakh (30% of vehicle valuation), and security for the balance of Rs. 5.2 lakh. The petitioner contends these conditions, imposed under Section 23A after the 2013 amendment, were improper and contrary to the liberal construction now mandated. He cites Shan v. State of Kerala (2010) and Sujith v. State of Kerala (2012) as background for the earlier practice, and argues that the amendment and subsequent decision in Aboobacker v. State of Kerala (2014) require a liberal construction of security so as to avoid undue burden on the owner. The State opposes, contending there is no illegality and that the court has discretion to impose conditions to secure ends of justice. The High Court, upon admission, holds that the conditions can be modified in light of Aboobacker and the amended framework, replacing a 30% deposit with 10% of the vehicle value (Rs. 74,000) and a bond for the balance (Rs. 6,66,000) with two solvent sureties, while retaining other safeguards; release continues until confiscation proceedings conclude. The petition is disposed of with these modifications.

Provisions of Law Cited

Section 482 of the Code of Criminal Procedure (CrPC)Protection of River Banks and Regulation of Removal of Sand Act, 2001 (as amended by Act XV/2013)Section 23A of the ActSection 457 of CrPC

Legal Doctrines & Maxims

Liberal construction of security deposits
Ends of justice
Constitutional discretion of courts to impose appropriate interim safeguards

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the interim custody conditions imposed by the Judicial First Class Magistrate, Kasaragod, under the amended Sand Act (Sec. 23A) are improper and contrary to the liberal construction of security deposits. He notes that the 2013 amendment introduced Section 23A after seizure and that in Aboobacker v. State of Kerala (2014) the court held security could be liberally construed, allowing a reduced deposit and bond for the balance. He cites Shan v. State of Kerala (2010) and Sujith v. State of Kerala (2012) as background for earlier practice, and argues the Court should modify the conditions to a 10% deposit with a bond for the balance and retain other safeguards and directing release only pending confiscation proceedings. He also mentions that custody by bond alone, as in other cases, could be permissible under the amended framework.

Contentions of Respondents

The State contends there is no illegality in the Magistrate’s order; the court has discretion to impose appropriate conditions to secure ends of justice; the 23A amendment changes the procedure after seizure but does not negate the magistrate’s discretion. The vehicle was seized for offense under the Act, and the court must ensure compliance and preservation of ends of justice through suitable safeguards.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shan V. State of Kerala	2010 (3) KLT 413	Mentioned Only	Cited as background for earlier approach; the current decision relies on 23A and Aboobacker rather than as a binding endorsement of Shan.
Sujith V. State of Kerala	2012 (2) KLT 547	Mentioned Only	Cited for prior practice; not treated as directing the present modification.
Aboobacker v. State of Kerala	2014 (3) KLT 26	Positive	Cited and applied for liberal construction of security deposits, forming the basis for reducing the deposit to 10% and adjusting the balance by bond.

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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** **MONDAY, THE 25TH DAY OF AUGUST 2014/3RD BHADRA, 1936** ## **Crl.MC.No. 4825 of 2014** ## **---------------------------** **CMP 2663/2013 OF JUDICIAL FIRST CLASS MAGISTRATE - I, KASARAGOD.** **..** ## **PETITIONER/PETITIONER:** **-------------------------------------** **MOIDEEN B.T., AGED 30 YEARS, S/O.ABDUL RAHIMAN, RAHHMATH MANZIL, NEAR KHILAR MASJID, BAMBRANA P.O., KASARAGOD DISTRICT.** **BY ADVS.SMT.HEMALATHA SRI.BINU GEORGE** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **-----------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MBR/** ## **Crl.MC.No. 4825 of 2014** ## **----------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -------------------------------------** **ANNEXURE-I: CERTIFIED COPY OF ORDER DATED 3.4.2013 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KASARAGOD IN CMP NO.2663/2013.** **RESPONDENT(S)' EXHIBITS: - NIL** **---------------------------------------** ## **/TRUE COPY/** **P.A. TO JUDGE** **MBR/** ## **K. Ramakrishnan, J. ============================= Crl.M.C.No.4825 of 2014 ============================= Dated this, the 25[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.2663/2013 in Crime No.421/2012 of Manjeshwar 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 MGV Tipper bearing registration No.KL-14-L-4510 which was seized by the respondent on the allegation that sand was transported in the vehicle in violation of the provisions of the Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter called 'the Act') and a case was registered as Crime No.421/2012 of Manjershwar Police Station in respect of the same. The petitioner filed C.M.P.No.2663/2013 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: 1. Petitioner shall execute bond for Rs. Crl.M.C.No.4825 of 2014 : 2 : 7,40,000/- with two solvent sureties for the like sum. 2. Petitioner shall deposit an amount of Rs.2,20,000/-(Rupees Two Lakh Twenty Thousand) in cash before the court (being 30% of the valuation of the said vehicle). 3. Petitioner shall produce property security or bank guarantee for the balance amount of Rs.5,20,000/-. 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. 6. The application was opposed by the learned Public Crl.M.C.No.4825 of 2014 : 3 : 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 Vidyanagar police had seized the vehicle with No.KL-14-L-4510 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. 7,40,000/- with two solvent sureties for the like sum. 2. Petitioner shall deposit an amount of Rs.2,20,000/-(Rupees Two Lakh Twenty Thousand) in cash before the court (being 30% of the valuation of the said vehicle). 3. Petitioner shall produce property security or bank guarantee for the balance amount of Rs.5,20,000/-. 4. The petitioner shall not use or cause the said vehicle to be used the commission of offence 5. The sand if any shall be unloaded before releasing the vehicle in the premises of police station concerned. Crl.M.C.No.4825 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”. 10. In view of the dictum laid down in the above decision, the condition imposed by the court below, directing Crl.M.C.No.4825 of 2014 : 5 : the petitioner to deposit 30% value of the vehicle and furnish bank guarantee or property security for the balance amount can be set aside and the same can be modified as follows: The petitioner shall deposit 10% 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 10% of the value assessed for the vehicle, namely Rs.74,000/- and execute a bond for the balance amount of Rs.6,66,000/- 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. With the above modification of the conditions imposed, this criminal miscellaneous case is disposed of. Crl.M.C.No.4825 of 2014 : 6 : Office is directed to communicate this order to the concerned court immediately. Sd/- **K.Ramakrishnan, Judge.** Bb _[True copy]_ _P.A to Judge_