Salam v. Sub Divisional Magistrate, Tirur, Malappuram District & The Sub Inspector of Police, Kuttipuram, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935** ## **WP(C).No. 5044 of 2014 (E)** **--------------------------------------** **PETITIONER: -------------------** **SALAM, AGED 39 YEARS, S/O.KAMMU, RESIDING AT VATTAPARAMBIL HOUSE, V.P.PURAM POST, B.P.ANGADI, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.A.JAYASANKAR, SRI.C.V.MANUVILSAN, SRI.MANU GOVIND, SRI.G.SUDHEER, SRI.V.HARISH.** **RESPONDENTS:** **-----------------------** **1. THE SUB DIVISIONAL MAGISTRATE, TIRUR, MALAPPURAM DISTRICT-676 101.** **2. THE SUB INSPECTOR OF POLICE, KUTTIPURAM, MALAPPURAM-676 503.** ## **BY SR. GOVERNMENT PLEADER SRI. K.C. VINCENT.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.5044/2014-E:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: A TRUE PHOTOCOPY OF THE REGISTRATION PARTICULARS OF THE VEHICLE BEARING REGISTRATION NO.KL 55-M-831.** **EXHIBIT-P2: A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 15.01.2014, PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN, J.** **-------------------------------** **W.P.(C).No.5044 of 2014** ## **--------------------------------Dated this the 26[th] day of February, 2014** ## **JUDGMENT** The petitioner is the owner of a goods vehicle bearing registration No.KL-55-M-831. The said vehicle was seized by the Sub Inspector of Police, Kuttippuram on 11.1.2014 on the allegation that it was used to transport river sand without a valid permit. The petitioner states that the seizure of the vehicle was illegal for the reason that it was not carrying any river sand, that he has filed Ext.P2 representation dated 15.1.2014 before the Sub Divisional Magistrate, Tirur, requesting him to release the vehicle, but till date orders have not been passed on the said petition and the vehicle released to him. In this writ petition the petitioner prays for an order directing the Sub Divisional Magistrate to consider Ext.P2 representation and pass orders thereon without delay. He also seeks an order directing the respondents to release the motor vehicle to him. 2. A Full Bench of this Court has in _**Shan v. State of Kerala**_ , 2010 (3) KLT 413 (F.B.) laid down the conditions subject W.P(C)No.5044/2014 -:2:- to which interim custody of a motor vehicle seized under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 can be given. Paragraphs 10 to 13 of the said decision are extracted below:- _“10. Eventually if the vehicle is confiscated, the owner of the vehicle would lose the entire value of the vehicle. It is a different matter in a given case, the vehicle may be liable for confiscation or not depending upon the evidence in that case. While making an order for interim custody of the vehicle in favour of the owner, against whom proceedings for confiscation of the vehicle are pending, the Court will not only take into consideration the interest of the owner of the vehicle, but also the interest of the State, the object of the legislation and larger public interest which is sought to be achieved by the confiscation of the vehicle. The full value of the vehicle must be safeguarded before directing the_ _**State** to part with the custody of the vehicle in favour of the owner. The very fact that the Legislature of Kerala thought it fit to bring in a special legislation to prevent indiscriminate excavation of sand from the river banks indicates the magnitude of the problem._ _11. In the circumstances, we are of the opinion that while making any order for interim custody of the vehicle confiscated under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, necessary condition for safeguarding the full value of the vehicle is to be stipulated._ _12. Having regard to the facts and circumstances of the case, we are of the opinion that interim custody of the vehicle can be granted on condition that the owner of the_ W.P(C)No.5044/2014 ## -:3:- _vehicle deposits 30% of the value of the vehicle as determined by the appropriate authority under the Motor Vehicles Act in cash and a further condition that the owner of the vehicle should provide either a bank guarantee or immovable property security for the balance of the value of the vehicle. The amount so deposited and the security furnished would follow the final outcome of the confiscation proceedings._ _13. We also deem it appropriate to direct that the proceedings under S.23 of the above mentioned Act confiscating the vehicle shall be concluded within six weeks from the date of seizure of the vehicle as far as possible, in which case the need to consider the interim custody of the vehicle may not normally arise. But if for any reason the authorities under the Act are not able to conclude the proceedings within the period of six weeks mentioned above, the interim custody of the vehicle shall be given to the owner on the conditions specified earlier. It is also made clear that to avoid any controversy and the allegations of undue delay on the part of either party to the proceedings, the competent authority shall put the owner on notice within a period of three days of the date of seizure and the owner or any other person interested in the vehicle shall file his objections to the confiscation within a week thereafter.”_ 3. After the decision of the Full Bench was rendered, by Act 15 of 2013, the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 was amended by incorporating section 23A, section 23B, section 23C and section 23D therein. In the first proviso to sub-section (2) of section 23A it is stipulated W.P(C)No.5044/2014 -:4:- that the release of the properties seized to any person, for its safe custody or to any person for its disposal, shall be on sufficient security and such release or disposal shall only be till the completion of the confiscation proceedings under the Act. In the light of the statutory provisions contained in the Act as amended, I am of the opinion that the Sub Divisional Magistrate, Tirur should consider the request made by the petitioner in Ext.P2 and pass orders thereon in the light of the observations made by the Full Bench of this Court in _**Shan v. State of Kerala**_ (supra) and also conclude the proceedings initiated against the petitioner within a period of six weeks from the date of seizure of the vehicle. I accordingly dispose of the writ petition with a direction to the first respondent to consider the petitioner's request for grant of interim custody of the vehicle in the light of the first proviso to sub-section (2) of section 23A as amended by Act 15 of 2013 and the principles laid down by the Full Bench of this Court in _**Shan v. State of Kerala**_ (supra) and pass orders thereon expeditiously and in any event within one week from the date on which the petitioner produces a copy of this judgment along with a copy of the writ petition, complete in all aspects, before him. The first W.P(C)No.5044/2014 ## -:5:- respondent shall thereafter issue final orders in the matter expeditiously and in any event within an outer limit of six weeks from the date of seizure of the vehicle. Needless to say, in the event of the first respondent finding that the petitioner has violated the provisions contained in the Act, he shall take steps to prosecute the petitioner as directed by the Division Bench of this Court in _**Sujith v. State of Kerala,**_ 2012 (2) KLT 547. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.5044 of 2014 ----------------------------** ## **JUDGMENT** **26[th] February, 2014**