Moideen v. District Collector, Malappuram District & Deputy Collector (Election), Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936** ## **Crl.MC.No. 3137 of 2014** **---------------------------------** **AGAINST THE ORDERIN CMP.NO. 3105/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM, DATED 13-08-2013** **-------------** ## **PETITIONER(S)/PETITIONER:** **----------------------------------------** **MOIDEEN, S/O.PUTHIYANGADI MOHAMMED, PUTHIYANGADI VEED, CHERUVAYOOR P.O, VETTATHUR, VAZHAKKAD, ERNAD, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.T.K.AJITH KUMAR** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------** **1. THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT- 676 505.** **2. THE DEUT[Y COLLECTOR (ELECTION), MALAPPURAM - 676 505. REPRESENTED 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 11-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 3137 of 2014** **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------------------------** **ANNEXURE A. COPY OF THE ORDER DATED 13.8.13 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM IN CMP NO.3105/13.** **ANNEXURE B. COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CRMC NO.2685/14 DATED 20.5.14.** **RESPONDENT(S)' ANNEXURES** **--------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Criminal M.C. No.3137 of 2014 ------------------------------------------------------------------------Dated this the 11[th] day of June, 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, Malappuram, in C.M.P.No.3105/2013 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.KL11-Y-8935, which was seized by second 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.3105/2013 before the Judicial First Class Magistrate Court-I, Malappuram, for interim custody of the vehicle. The learned magistrate by Annexure-A order granted interim custody on conditions interalia that: The petitioner shall execute bond for 1,80,000/-₹ with two solvent sureties each for the like sum to the satisfaction of that court. Deposit 60,000/- in cash and also furnish security₹ Criminal M.C. No.3137 of 2014 2 or bank guarantee for 1,20,000/- with other conditions. ₹ The above conditions were 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 25.11.2013. Further this court in another case granted custody by executing a bond alone. 6. The application was opposed by the learned Public Prosecutor on the ground that, there is no illegality in the order passed. The discretion has been given to the court to impose any condition. 7. It is an admitted fact that Kondotty police had Criminal M.C. No.3137 of 2014 3 seized the vehicle with No. KL-11-Y/8935, 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 451 of the Code of Criminal Procedure and the same was allowed by Annexure-A order with following conditions. - i. Petitioner shall execute a bond for 1,80,000/- ₹ - with two solvent sureties each for the like sum. - ii. Petitioner shall deposit 60,000/- in the court.₹ - iii. Petitioner shall produce security of bank - guarantee for 1,20,000/-.₹ - iv. Petitioner shall produce photograph and CD of - the vehicle. - v. Station house officer is directed to prepare a - panchanama of the vehicle. - vi. Petitioner shall produce attested true copy of - RC. - vii. Petitioner shall produce the vehicle before the - Court as and when directed. 8. Condition Nos. 2 and 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** Criminal M.C. No.3137 of 2014 4 **(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. 9. Section '23A' of the 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 propriety 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 regarding the articles seized or where the Court is satisfied that the application to release them are not satisfactory, they shall be subjected to confiscation under sub-section (4): Criminal M.C. No.3137 of 2014 5 Provided that the disposal or release of the properties seized, for its safe custody, to any person, shall be on sufficient security and such disposal or release shall 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 sub-section (4). (3) Where a report under sub-section (1) is received before a Sub Divisional Magistrate, a notice requiring to submit in writing within the stipulated time as stated in the notice, to show cause the reasons, if any, why the property seized under section 23 shall not be confiscated, 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 do not give explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the properties seized under section 23 have to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed 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 in lieu of the properties confiscated, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector. Criminal M.C. No.3137 of 2014 6 Provided further that the sand confiscated shall not for any reason, be released by realising 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 be fixed 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.” 10. Proviso to Section '23A'(2) of the Act gives power to the judicial magistrate to release the vehicle under this Act, which was not there earlier and proviso to that Section says that, it shall be on sufficient security and such disposal or release shall be till the completion of the confiscation proceedings under this Act. 11. It is true that, by Annexure-B order another bench of this court has taken view that it can be granted on execution of the bond alone. But I feel that, what is stated in the 7 Criminal M.C. No.3137 of 2014 Section is “sufficient security” and discretion has been given to the court in fixing the security on the basis of which the vehicle can be released. So considering the intention of the legislature, this court feels that mere execution of bond alone is not contemplated by virtue of that provision. However, since a lenient view has been required on the basis of the incorporation of the section, the condition imposed by the court below appears to be harsh. So considering this aspect, this court feels that the conditions 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 is set aside and the same is modified, retaining the other conditions and those conditions are modified as follows: The petitioner is directed to deposit 10% of the value assessed for the vehicle, namely 18,000/- and execute a bond₹ for the balance amount of 1,62,000/- with two solvent sureties₹ Criminal M.C. No.3137 of 2014 8 for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-I, Malappuram. 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 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