Muhammed Saleel S/o Ismail v. State of Kerala and Sub Inspector of Police, VazhaKKAD Police Station, Malappuram District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936** ## **Crl.MC.No. 7123 of 2014 ()** **--------------------------AGAINST THE JUDGMENT IN CMP 9964/2014 of J.M.F.C.,MALAPPURAM DATED 13-10-2014** ## **PETITIONER/PETITIONER:** **--------------------------------------** **MUHAMMED SALEEL S/O ISMAIL, KUNDIL HOUSE, KEEZHUPARAMBU MALAPPURAM DISTRICT.** ## **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/STATE AND COMPLAINANT:** **----------------------------------------------------------------------** ## **1. THE STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. THE SUB INSPECTOR OF POLICE, VAZHAKKAD POLICE STATION, MALAPPURAM DISTRICT PIN:673640.** ## **BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7123 of 2014 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **ANNEXURE A: CERTIFIED COPY OF THE ORDER PASSED BY THE J.F.C.M., MALAPPURAM IN CMP NO.9964/2014 DATED 13.10.2014.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** sdk+ ///True copy/// P.S. to Judge ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No. 7123 of 2014 ================== Dated this the 19[th] day of December, 2014 O R D E R The petitioner herein is the petitioner in Criminal Miscellaneous Petition No.9964/2014 on the file of the Judicial First Class Magistrate's Court, Malappuram. The said application was filed by the petitioner herein for invoking the powers under Sec.457 of the Code of Criminal Procedure for the release of his goods carriage/mini lorry bearing registration No.KL-11Z/7200, which was seized by the 2[nd] respondent-Sub Inspector of Police, Vazhakkad Police Station, Malappuram, under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The said Magistrate, after taking into account the value of the vehicle as Rs.1,00,000/-, had directed the petitioner as per the impugned Annexure-A order in the above said Criminal Miscellaneous Petition No.9964/2014, to deposit Rs.30,000/-, being 30% of the value of the vehicle and also directed to furnish bank guarantee for the balance amount of Rs.70,000/-, being the Crl.M.C.7123/14 - : 2 :- 70% of the value of the vehicle. 2. The petitioner contends that the said conditions 2 and 3 in the impugned Annexure-A order are highly onerous and are against the dictum regarding the interim custody of the vehicles seized under the provisions of the above said Act, as held in the decision of this Court in the case Aboobacker v. State of Kerala reported in 2014 (3) KLT 26. In the said decision, this Court had directed the release of the vehicles seized under the provisions of the above said Act on the petitioner therein depositing 15% of the value of the vehicle and on executing bond for the balance 85% of the value of the vehicle with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate concerned. In the light of these factual aspects and legal contentions the petitioner has filed the above Crl.M.C. seeking the invocation of the inherent powers conferred on this Court as per Sec.482 of the Code of Criminal Procedure with the prayer to set aside conditions 2 and 3 in the above said impugned Annexure-A order rendered on 13.10.2014 in C.M.P.No.9964/2014 on the file of the Judicial First Class Magistrate's Court, Malappuram, in the interest of justice. 3. It appears that the learned Magistrate while passing the Crl.M.C.7123/14 - : 3 :- impugned order, was following the dictum laid down by this Court in the case Shan v. State of Kerala reported in 2010 (3) KLT 413 (F.B), which was later followed by this Court in decisions as in Sujith v. State of Kerala reported in 2012 (2) KLT 547, for imposing the condition for making cash deposit of 30% of the assessed value of the vehicle and producing security of bank guarantee for the balance 70% of the value of the vehicle. After the rendering of the decisions of this Court in the above said rulings, the Legislature has amended the provisions of the Kerala Protection of the River Banks and Regulation of Removal of Sand Act, 2001, by inserting Sec.23A in the said 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): Provided that the disposal or release of the properties seized, for its safe custody, to any person, shall be on sufficient security and such Crl.M.C.7123/14 - : 4 :- 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. 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.” 4. Therefore, by virtue of the amended provisions contained in Sec.23A of the Act, especially proviso to sub section 2 of Sec.23A thereof, expressly confers discretion on the Magistrate to fix the security to be furnished while considering the question of granting interim custody of the vehicle, which has been seized Crl.M.C.7123/14 - : 5 :- under this Act. In this view of the matter, this Court in the decision in the case Aboobacker v. State of Kerala reported in 2014 (3) KLT 26, held that the discretion thus conferred under Sec.23A (2) proviso, has to be exercised judiciously and if the court below exercises harsh and onerous conditions, the same can be modified by this Court while exercising powers under Sec.482 of the Cr.P.C. by directing fixation of the security to be furnished to the appropriate and reasonable level. In Aboobacker's case supra also, this Court had directed to deposit 15% of the value of the vehicle assessed and to execute bond for the balance 85% of the value of the vehicle, etc. This Court in Aboobacker's case supra, para 9, set aside the above said conditions and directed that the vehicle shall be returned to the petitioner therein on depositing 15% of the value of the vehicle assessed and on executing bond for the balance 85% of the value of the vehicle with two solvent sureties for the like sum each to the satisfaction of the judicial Magistrate concerned. 5 . The vehicle value assessed in this case, as can be seen from Annexure A order, is Rs.1,00,000/-. Accordingly, following the decision of this Court in Aboobacker's case supra, there will be an order that the petitioner's vehicle bearing registration No.KL-11Z- Crl.M.C.7123/14 - : 6 :- 7200 shall be released to the petitioner on his depositing cash amount for 15% of the value of the vehicle as assessed above and on executing bond for the balance 85% of the value of the said vehicle with two solvent sureties for the like sum each to the satisfaction of the court below concerned. With these observations and directions, the Crl.M.C. stands disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge