High Court of KeralaSingle Judge2014-07-17Disposed of

Muhammed Anas v. State of Kerala

Case / Petition Number:Crl.MC.No. 4005 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-07-17
Court Decision / Holding: The High Court modified the interim custody conditions. It held that the 30% deposit and bank guarantee for the balance, previously imposed under the older practice, should be replaced with 10% deposit (₹33,000) and a bond for the balance (₹2,97,000) with two solvent sureties. The release of the vehicle was kept conditional on the progress of the confiscation proceedings under the Act, while other conditions were retained. The matter was disposed of accordingly.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Muhammed Anas, aged 32 years, S/o. Zainudeen, Mubarak Manzil, Thuruthi, Kasaragod P.O., Kasaragod District.

Respondents

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

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Hema-latha
• Sri. Binu George

Counsels for Respondents

• Smt. P. Maya

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous petition filed by Muhammed Anas challenging an interim custody order issued by the Judicial First Class Magistrate Court-II, Hosdurg in CMP No.4065/2014 in Crime No.460/2014 of Nileshwar Police Station under the Protection of River Banks and Regulation of Removal of Sand Act, 2001 (the Act) and Sec. 482 CrPC. The magistrate had granted interim custody of the vehicle KL-13-V/5977 on conditions including deposit of 30% of the vehicle’s value (₹3,30,000), furnishing a bank guarantee for the balance, production of the vehicle as required, and authentication of documents/photographs. The petitioner challenged these conditions, arguing that after Amendment Act XV/2013 introducing Section 23A, the court should follow liberal construction and could, if necessary, release the vehicle on bond rather than heavy deposits. The Public Prosecutor opposed the challenge, contending there is no illegality and that the court has discretion to impose conditions. The High Court referred to prior decisions Shan v. State of Kerala and Sujith v. State of Kerala, noting the 23A amendment which the trial court had not considered. Relying on Aboobacker v. State of Kerala (2014) 3 KLT 26, it held that security can be liberally construed and a portion of the amount can be deposited with the balance secured by bonds with sureties. The Court modified the order to require deposit of 10% of the value (₹33,000) and a bond for the balance (₹2,97,000) with two solvent sureties, keeping other conditions intact, until confiscation under the Act is completed. The petition was disposed of with these directions.

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 (Act)Section 23A (amended by Amendment Act XV/2013)Section 457 of the CrPC

Legal Doctrines & Maxims

Security to be liberally construed under confiscation provisions (as articulated in Aboobacker v. State of Kerala)
Ends of justice (principle invoked in balancing security and custody)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted that the imposition of 30% deposit and bank guarantee for the balance is not proper in view of Section 23A as amended in 2013. Citing liberal construction of security under the amended Act, they argued that custody could be ensured by a bond, and that the court below should have aligned with post-amendment practice and other liberal precedents.

Contentions of Respondents

The Public Prosecutor argued that there was no illegality in the order; the court has discretion to impose appropriate conditions for interim custody and that the existing order did not require modification.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shan v. State of Kerala	2010 (3) KLT 413	Mentioned Only	Cited as precedent considered by the trial court but insufficient to override the new amendment (Sec.23A) and the liberal construction doctrine invoked later by Aboobacker.
Sujith v. State of Kerala	2012 (2) KLT 547	Mentioned Only	Similar to Shan, cited as influencing earlier orders but superseded by Section 23A and subsequent liberal construction approach.
Aboobacker v. State of Kerala	2014 (3) KLT 26	Positive	The court explicitly relied on Aboobacker for the principle that security can be liberally construed and that a partial deposit with bonds can meet the ends of justice; this guided the modification of the custody 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 17TH DAY OF JULY 2014/26TH ASHADHA, 1936** ## **Crl.MC.No. 4005 of 2014** **--------------------------CMP NO. 4065/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II,HOSURG DATED 16-06-2014** **....... CRIME NO. 460/2014 OF NILESHWAR POLICE STATION , KASARAGOD** **......** **PETITIONER:** **--------------------------** **MUHAMMED ANAS, AGED 32 YEARS, S/O.ZAINUDEEN, MUBARAK MANZIL, THURUTHI, KASARAGOD P.O., KASARAGOD DISTRICT.** **BY ADVS.SMT.HEMALATHA SRI.BINU GEORGE** **RESPONDENTS/STATE:** **----------------------------------------** **STATE OF KERALA, 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 17-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 4005 of 2014** **------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURE: ------------------------------------------** **ANNEXURE-1: CERTIFIED COPY OF ORDER DATED 16.6.2014 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HOSDURG IN CMP NO.4065/2014.** **RESPONDENT(S)' ANNEXURES: ----------------------------------------------N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.4005 of 2014 -------------------------------------------------Dated this the 17[th] day of July, 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-II, Hosdurg, in C.M.P.No.4065/2014 in Crime No.460/2014 of Nileshwar 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 vehicle bearing registration No. KL-13-V/5977, which was seized by the respondent on the allegation that the vehicle was used for transporting 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') and a crime was registered under the said Act. The petitioner filed C.M.P.No.4065/2014 before the Judicial First Class CRMC.4005/ 2014 2 Magistrate Court-II, Hosdurg, for interim custody of the vehicle. The learned magistrate by Annexure-I order granted interim custody on conditions inter-alia that: 1. Petitioner shall deposit 30% of the value of the vehicle assessed by Joint RTO as 3,30,000/-. ₹ 2. The petitioner is directed to furnish bank guarantee or immovable property as security for the balance amount of the vehicle. 3. The petitioner shall produce the vehicle before the court as and when required. 4. The amount deposited and security furnished will follow the final out come of the confiscation proceedings. 5. The petitioner shall produce authenticated photographs of the vehicle also original documents of the vehicle for verification. 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, after hearing the counsel for the petitioner and the learned Public Prosecutor. 4. Heard the Counsel for the petitioner and the CRMC.4005/ 2014 3 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. A discretion has been given to the court to impose any condition. 7. It is an admitted fact that the vehicle with No. KL-13-V/5977, which belongs to the petitioner was seized by the police, 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 filed an application for interim custody under Section 457 of the Code of Criminal Procedure and the same was allowed by Annexure- CRMC.4005/ 2014 4 I order with the above said conditions. 8. Condition Nos. 1 and 2 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 25.11.2013 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 confiscation, and also power of the court for giving interim custody. This court has considered that provision in **(2014 (3) KLT 26) Aboobacker v. State of Kerala** , wherein this court has held that: “The security mentioned therein, has to be liberally construed and a portion of the amount CRMC.4005/ 2014 5 can be directed to be deposited and for the balance amount, the personal bond with 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 conditions imposed by the court below, directing the petitioner to deposit 30% value of the vehicle and furnish bank guarantee for the balance amount is set aside and the same is 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 and 2 imposed by the court below are 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 ₹33,000/- and CRMC.4005/ 2014 6 execute a bond for the balance amount of 2,97,000/- with₹ two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-II, Hosdurg. 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