Nasir M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** ## **Crl.MC.No. 4565 of 2014** **-----------------------------------** ## **C.M.P.NO. 7885/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - 1, KASARAGOD** **CRIME NO. 715/2013 OF KUMBALA POLICE STATION, KASARGOD** **--------------** **PETITIONER / PETITIONER :** **-----------------------------------------** **NASIR M., AGED 27 YEARS, S/O.KATHEEJAMMA, NEAR POLICE LANE, HOSABETTU, MANJESHWAR, KASARAGOD DISTRICT.** **BY ADV. SRI.S.JIJI** **RESPONDENT / STATE :** **------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT.P.MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 4565 of 2014** **----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1: CERTIFIED COPY OF ORDER IN CRL.M.P NO.7885/2013 OF JFMC, KASARAGOD.** ## **RESPONDENT(S)' ANNEXURES:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **K. Ramakrishnan, J. ============================= Crl.M.C.No.4565 of 2014 ============================= Dated this, the 14[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.7885/2013 in Crime No.715/2013 of Kumbala 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 Tipper Lorry bearing registration No.KL-14H-9531, which was seized by the respondent on the allegation that the vehicle was used for transportation of the sand without any valid documents 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.7885/2013 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: Crl.M.C.No.4565 of 2014 : 2 : 1. Petitioner shall execute bond for Rs. 3,00,000/- (Rupees Three Lakh only) with two solvent sureties who each shall execute a bond for the like sum. 2. Petitioner shall Deposit Rs. 90,000/(Rupees Ninety thousand only) before this court in cash. 3. Petitioner shall produce bank guarantee or property security for Rs.2,10,000/-(Rupees Two Lakh Ten Thousand only) before this court. 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. Crl.M.C.No.4565 of 2014 : 3 : 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 Kumbala police had seized the vehicle with No.KL-14H-9531, 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. 3,00,000/- (Rupees Three Lakh only) with two solvent sureties who each shall execute a bond for the like sum. 2. Petitioner shall Deposit Rs. 90,000/(Rupees Ninety thousand only) before this court in cash. 3. Petitioner shall produce bank guarantee or property security for Rs.2,10,000/-(Rupees Two Lakh Ten Thousand only) before this court. 4. Petitioner shall not use or cause the said vehicle be used for unlawful activities. 5. Petitioner shall produce back the said vehicle as and when directed. Crl.M.C.No.4565 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”. Crl.M.C.No.4565 of 2014 : 5 : 10. In view of the dictum laid down in the above decision, the condition imposed by the court below, directing the petitioner to deposit 30% value of the vehicle and furnish bank guarantee for the balance amount can be set aside and the same can be modified as follows: The petitioner shall deposit 15% 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 can be modified, retaining the other conditions as follows: The petitioner is directed to deposit 15% of the value assessed for the vehicle, namely Rs.45,000/- and execute a bond for the balance amount of Rs.2,55,000/- 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. Crl.M.C.No.4565 of 2014 : 6 : 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.** Bb _[True copy]_ _P.A to Judge_