Nizar, s/o Unni Muhammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936** **Crl.MC.No. 3870 of 2014 () ---------------------------** **PETITIONER/PETITIONER :** **NIZAR, S/O UNNI MUHAMMED, POTHUVETTICHALIL HOUSE, CHEEKOD, KONDOTTY, MALAPPURAM DT.** **BY ADV. SRI.T.K.AJITH KUMAR** ## **RESPONDENT/RESPONDENT :** **------------------------------------------** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, PARAPPANANGADI, MALAPPURAM DT. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT. S. HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 3870 of 2014 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE A : TRUE COPY OF THE ORDER DATED 21.06.2014 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI IN CMP NO.1467/2014** **RESPONDENT(S)' EXHIBITS** **:** **NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.3870 of 2014 -------------------------------------------------Dated this the 11[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, Parappanangai, in C.M.P.No.1467/2014 in C.C.988/2014 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-Q/1947, which was seized by the 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.1467/2014 before the Judicial First Class Magistrate Court, Parappanangadi, for interim custody of CRMC.3870/ 2014 2 the vehicle. The learned magistrate by Annexure-A order granted interim custody on conditions inter-alia that: 1. Petitioner shall deposit a sum of 49,500/- ₹ 2. Petitioner should provide either bank guaranty or immovable property security for a sum of Rs. 1,00,500/- for the balance amount of the present marked value of the vehicle. 3. Petitioner is at liberty to deposit the entire amount before this court in stead of producing bank guarantee or immovable property security. 4. The amount so deposited and security furnished would follow the final out come of the confiscation proceedings. 5. The petitioner shall not use the said vehicle in future to commit any offence punishable under the provisions of the Act. 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. The Counsel for the petitioner submitted CRMC.3870/ 2014 3 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. 5. The application was opposed by the learned Public Prosecutor on the ground that, there is no illegality committed by the court below in the order passed. A discretion has been given to the court to impose any condition. 6. It is an admitted fact the vehicle with No. KL13-Q/1947, which belongs to the petitioner was seized 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-A order with following conditions. CRMC.3870/ 2014 4 1. Petitioner shall deposit a sum of 49,500/- ₹ 2. Petitioner should provide either bank guaranty or immovable property security for a sum of Rs. 1,00,500/- for the balance amount of the present marked value of the vehicle. 3. Petitioner is at liberty to deposit the entire amount before this court in stead of producing bank guarantee or immovable property security. 4. The amount so deposited and security furnished would follow the final out come of the confiscation proceedings. 5. The petitioner shall not use the said vehicle in future to commit any offence punishable under the provisions of the Act. 7. 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. CRMC.3870/ 2014 5 8. 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 can be directed to be deposited and for the balance amount, 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 condition imposed by the court below, directing the petitioner to deposit 49,500/- and furnishing₹ bank guaranty of 1,00,500/- or immovable property as₹ security is harsh and has to be set aside and the same can be modified as follows: CRMC.3870/ 2014 6 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 and 2 imposed by the court below are set aside and the same are modified, retaining the other as follows: The petitioner is directed to deposit 15% of the value assessed for the vehicle, namely ₹22,500/- and execute a bond for the balance amount of 1,27,500/- with₹ two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court, Parappanangadi. 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 CRMC.3870/ 2014 7 imposed, this criminal miscellaneous case is disposed of. Office is directed to communicate this order to the concerned court immediately 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