High Court of KeralaSingle Judge2016-05-19Petition disposed of with modifications

Sajeev v. State of Kerala

Case / Petition Number:Crl.MC.No. 2718 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2016-05-19
Court Decision / Holding: With the above modification of the impugned order, the petition is disposed of. The vehicle KL23-G-5292 shall be released on a bond for 70% of its value with two solvent sureties, to the satisfaction of the Judicial First Class Magistrate, Kolencherry. All other conditions shall remain as such. The release is subject to the completion of any confiscation proceedings under the proviso to Section 23A(2) of the Sand Act. The petitioner shall file an undertaking not to alienate or encumber the vehicle until the confiscation proceedings are completed.
Final Disposition: Petition disposed of with modifications

Parties to the Case

Appellants / Petitioners

Sajeev

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Ajeesh S. Brite

Counsels for Respondents

• Public Prosecutor Sareena George

Case Synopsis & Summary

This criminal miscellaneous case before the Kerala High Court challenges an order of the Judicial Magistrate of First Class, Kolencherry, dated 1.3.2016 in CMP No.131 of 2016 relating to a seized vehicle. An Eicher Truck bearing registration KL23-G-5292, owned by the petitioner, was taken into custody on 22.2.2016 for alleged transport of river sand. Under Section 457 CrPC, the petition sought release of the vehicle, and the Magistrate allowed release subject to conditions: deposit 30% of the vehicle’s value and furnish immovable property or bank security for the balance. The petitioner contends that he possessed a valid pass under the Kerala Minor Minerals Concession Rules, 1967 for transporting ordinary sand from Muvattupuzha to Nettoor and that the Sand Act’s provisions and the enforcement action were inapplicable or overreaching, arguing that Section 23A of the Sand Act grants the Magistrate discretion to impose only reasonable conditions. The Public Prosecutor relies on precedents Shan v. State of Kerala, Sujith v. State of Kerala, and Ashraff v. SHO Kasargod to argue that there is no warrant to interfere with the magistrate’s conditions. The Court notes the seizure and the petitioner’s lack of interim custody, and, after considering submissions, modifies the order by replacing the security requirement with a bond for 70% of the value with two solvent sureties, while other conditions remain, and directs that release is subject to confiscation proceedings under the proviso to Section 23A(2) of the Sand Act. The petition is disposed of on these terms.

Provisions of Law Cited

Section 457 of the Code of Criminal Procedure (CrPC)Kerala Minor Minerals Concession Rules, 1967Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act)Section 23A of the Sand ActProviso to Section 23A(2) of the Sand Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he possessed a valid pass under the Kerala Minor Minerals Concession Rules, 1967 for transporting ordinary sand and that the seizure and the application of the Sand Act were improper in the circumstances. He submits that under Section 23A of the Sand Act the Magistrate has discretion to impose only reasonable conditions and requests modification of the impugned order. He proposes to deposit 70% of the vehicle’s value through a bond with two solvent sureties and seeks to release the vehicle with fewer encumbrances, while preserving confiscation proceedings if any.

Contentions of Respondents

The State/Prosecutor submits that the conditions imposed by the Magistrate are proper and should be maintained, relying on established precedents to justify interference with the petitioner’s claim. The respondents argue that the Sand Act and its procedural safeguards require the imposition of stringent conditions to ensure compliance and prevent illicit transport of sand, and cite Shan v. State of Kerala, Sujith v. State of Kerala, and Ashraff v. SHO Kasargod as supportive authority.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Shan v. State of Kerala	2010 (3) KLT 413	Positive	Cited by Respondent to support the court’s stance on not disturbing the Magistrate’s conditions, illustrating post-2010 Kerala case authority upholding discretionary conditions under Sand Act provisions.
Sujith v. State of Kerala	2012 (2) KLT 547	Positive	Cited to justify deference to the Magistrate’s conditional orders under the Sand Act’s framework.
Ashraff v. Station House Officer, Kasargod Police Station and others	2015 (2) KLT 224	Positive	Used to reinforce the principle that interim conditions may be upheld, supporting the impugned approach.
Crl.M.C.2936 of 2014	Crl.M.C.2936 of 2014	Mentioned Only	Petitioner’s reliance on this Court’s prior order is noted; the present judgment does not appear to rely on its holdings.

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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 RAJA VIJAYARAGHAVAN V THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938 ## Crl.MC.No. 2718 of 2016 --------------------------CMP 131/2016 of J.M.F.C.,KOLENCHERRY CRIME NO. 164/2016 OF PUTHENCRUZ POLICE STATION , ERNAKULAM PETITIONER(S): ------------- SAJEEV, AGED 30 YEARS, S/O ABDULSALAM RESIDING AT KOTTAKATH VADAKKETHARA HOUSE, KADATHOOR P.O., THAZHAVE, KARUNAGAPPILLY VILLAGE, KOLLAM DISTRICT ## BY ADV. SRI.AJEESH S.BRITE RESPONDENT(S): -------------- STATE OF KERALA, REP BY THE SUB INSEPCTOR OF POLICE, PUTHENCRUZ POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-052016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2718 of 2016 ## APPENDIX ## ANNEXURES I- A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE BEARING NO.KL 23 G 5292 DATED 14.3.2013 IIA TRUE COPY OF THE GOODS CARRIAGE PERMIT ISSUED TO THE VEHICLE BEARING NO.KL 23 G 5292 DATED 4.4.2013 IIIA TRUE COPY OF THE ORDER OF THE JFCM, KOLENCHERRY IN CMP 131 OF 2016 DATED 1.3.2016 //True Copy// P.S.To Judge ## **RAJA VIJAYARAGHAVAN.V, J** - - - - - - - - - - - - - - - - - - - - Crl.M.C.2718 of 2016 - - - - - - - - - - - - - - - - Dated 19[th] May, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This application is filed by the petitioner challenging the order dated 1.3.2016 in C.M.P.No.131 of 2016 on the file of the Judicial Magistrate of First Class, Kolencherry. 2. An Eicher Truck bearing registration No.KL23-G-5292 belonging to the petitioner was taken into custody on 5.2.2016 alleging that the same was used for transporting river sand. A petition was filed by the petitioner under Section 457 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) before the learned Magistrate and as per AnnexureIII , the petition was allowed and the vehicle was ordered to be released subject to certain conditions. Condition No.(1) required the **Crl.M.C.2718/16** 2 petitioner to deposit 30% of the value of the vehicle which may be assessed and condition No.(2) was that the petitioner shall furnish immovable property as security for the balance value of the vehicle or bank security for the amount. - 3.The contention of the petitioner is that the petitioner was having a valid pass in P-form issued under the Kerala Minor Minerals Concession Rules, 1967 for transporting ordinary sand from Muvattupuzha to Nettoor in Ernakulam and it was during the course of the said transportation that the vehicle was seized. It is submitted that, as the vehicle was loaded with ordinary sand and that too with a valid pass, the prosecution of the petitioners under the Kerala Protection of River Banks and **Crl.M.C.2718/16** 3 Regulation of Removal of Sand Act, 2001 (hereinafter referred to as “the Sand Act”) is illegal. It is further submitted by the learned counsel that the vehicle was seized on 22.2.2016 and has been produced before the Sub Divisional Magistrate, and the vehicle is retained there since then. The learned counsel would further urge that the utility of the vehicle has been destroyed as the petitioner is unable to obtain possession of the vehicle owing to the onerous conditions imposed by the learned Magistrate. The petitioner would rely on the order of this Court in Crl.M.C.2936 of 2014 dated 3.6.2014, and would submit that as per Section 23A of the Sand Act which has come into force on and from 25.12.2012, the learned Magistrate has discretion to impose appropriate conditions. **Crl.M.C.2718/16** 4 - 4.The learned Public Prosecutor opposing the contention of the learned counsel for the petitioner, would submit that in view of **Shan v.State of Kerala (2010 (3) KLT 413)** , **Sujith v. State of Kerala (2012 (2) KLT 547)** and **Ashraff v. Station House officer , Kasargod Police Station and others (2015 (2) KLT 224)** would submit that there is no reason warranting interference with the imposition of conditions by the learned Magistrate . - 5.I take note of the fact that the vehicle was seized on 22.2.2016 and the petitioner has not been able to obtain interim custody of the vehicle till date. The learned counsel appearing for the petitioner would submit that the 5 ## **Crl.M.C.2718/16** - petitioner is prepared to deposit 30% of the value of the vehicle and that he is also prepared to execute bond for the balance amount. - 6.Having regard to the facts and circumstances, and taking note of the vehement assertion of the petitioner that what was being transported is not river sand , this Court is of the view that condition in the impugned order that the petitioner shall furnish immovable property as security for the balance amount of the vehicle or bank security for the amount, can be slightly modified as follows :- - (a) The petitioner shall execute a bond for the balance amount of ( 70 % of the value of the vehicle ) with two solvent sureties for the like sum each to the satisfaction of the **Crl.M.C.2718/16** 6 Judicial First Class Magistrate Court, Kolencherry. (b) All other conditions shall remain as such. (c) The above release of the vehicle will be subject to the completion of the confiscation proceedings if any to be initiated under this Act as provided under proviso to S.23A (2) of the Act. (d) The petitioner shall file an undertaking that he shall not alienate or encumber the vehicle till the confiscation proceeding are completed. With the above modification of the impugned order, the petition is disposed of. Sd/- ## **RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/20.5.2016 //True Copy// P.S.To Judge