Safnas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 30TH DAY OF MAY 2014/9TH JYAISHTA, 1936** ## **Crl.MC.No. 2890 of 2014** **--------------------------CMP 2328/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,MANJERI DATED 31-03-2014** **.... CRIME NO. 157/2014 OF AREACODE POLICE STATION , MALAPPURAM** **....** ## **PETITIONER/PETITIONER:** **----------------------------------------** **SAFNAS, S/O.MOHAMMED, VADAKKUMURI, OORNGATIRI P.O., MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SMT.NIMA JACOB** **RESPONDENT/RESPONDENT:** **--------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 2890 of 2014** **-----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ---------------------------------------------** ## **ANNEXURE-A1: COPY OF THE SEIZURE MAHASAR.** **ANNEXURE-A2: COPY OF THE ORDER DATED 31.03.2014 IN CMP NO.2328/2014 ON THE FILES OF JFCM COURT, MANJERI.** **RESPONDENT(S)' ANNEXURES: ----------------------------------------------N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.2890 of 2014 .................................................. Dated this the 30[th] day of May, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner challenging the conditions imposed by the Judicial First Class Magistrate Court, Majeri in CMP.No.2328/2014 under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that petitioner is the registered owner of the vehicle KL-11-U 2088 and that vehicle was seized by the authorities on 20.2.2014 alleging that the vehicle has been involved in commission of offence under the provisions of Kerala Protection of River Banks and Regulation or Removal of Sand (Amendment) Act, 2013. The petitioner filed CMP.No.2328/2013 for interim custody of the vehicle and the learned Magistrate relying on a decision of this Court in **Shan v. State of Kerala** [(2010 3 KLT 413 (FB)], allowed the application on condition of depositing 30% of the value assessed by the authorities and for the balance amount, furnishing either bank guarantee or property security as one of the conditions which is being challenged by the petitioner by filing this 2 Crl.M.C.No.2890 of 2014 petition. 3. Heard the counsel for the petitioner and the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that after the decision in **Shan** (cited supra), the Act has been amended by incorporating Section 23 A, whereby there is no such provision made and release on sufficient security is the word used. So, according to him, it can be by bond and not any any other security. 5. The application was opposed by the Public Prosecutor on the ground that the word sufficient security used is in tune with **Shan** (cited supra). 6. It is an admitted fact that the vehicle was seized by the authorities alleging involvement of the vehicle in the commission of offence under the above said Act. This Court in **Shan** (cited supra) held that in cases were interim custody has to be given, apart from imposing other conditions, directed the owner of the vehicle to deposit 30% of the value of the vehicle assessed by the mechanical engineer of the PWD wing and also furnishing bank security or property security for the balance amount. But, thereafter the Act was amended by incorporating 3 Crl.M.C.No.2890 of 2014 Section 23 A which reads as follows: “Section 23A. Confiscation of sand, vehicles, etc. - (1) Where any property is seized under section 23, the officer seizing such property shall seal all such property 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, hving jurisdiction over the area. Where information regarding such seizure of property 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 there on, 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 is not satisfactory, they shall be subjected to confiscation under sub-section (4): Provided that the release of the properties seized to 4 Crl.M.C.No.2890 of 2014 any person, for its safe custody, to person or its disposal, shall be on sufficient security and such release or disposal shall only 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 furnish in writing within the stipulated time as stated in the notice, the reasons, if any, for not confiscating the property seized under Section 23, 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 does not furnish explanation or the explanation given is not satisfactory and the Sub-Divisional Magistrate i satisfied that the properties seized under Section 23 are to be confiscated, he shall, by an order, confiscates the same and the fact shall be informed in writing 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, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the collector, in lieu of the properties confiscated: 5 Crl.M.C.No.2890 of 2014 Provided further that the sand confiscated shall not for any reason, be released by releasing 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”. Section 23 A came into effect from 7.3.2013 by Amendment Act 15 of 2013. It is true that provision to Section 23 A(2) says interim custody can be given on sufficient security and that will be subject to completion of confiscation proceedings under the Act. A discretion has been given to the court regarding the nature of security furnished. So under the circumstances, though the order passed by the court below cannot be said to be completely wrong, it appears to be little harsh in view of the provision now incorporated by the amended Act. So condition No.3 and a portion of condition No.4 namely directing the Crl.M.C.No.2890 of 2014 6 petitioner to deposit Rs.27,000/- and furnishing bank guarantee for immovable property security or the balance amount of Rs.63,000/- is set aside and the same is modified as follows: The petitioner is directed to deposit Rs.15,000/- before the court below towards value fixed by the authority and also execute a bond for Rs.75,000/- for the balance amount with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court, Manjeri. Other conditions imposed by the court below are kept in tact. The title deed of sureties, if any, produced by the petitioner or sureties, is directed to be returned to them retaining attested photostat copy of the same after satisfying with genuineness of the title deeds of the parties. With the above modifications, this case is disposed of. Communicate this order to the concerned court immediately. **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.2890 of 2014 7