Shabeeb s/o Hamza v. State of Kerala, Abdul Jaleel and Sirajudheen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 21ST DAY OF AUGUST 2014/30TH SRAVANA, 1936** ## **Crl.MC.No. 4744 of 2014** ## **------------------------------------** **CMP NO. 4179/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NILAMBUR** **CRIME NO. 113/2012 OF VAZHIKKADAVU POLICE STATION, MALAPPURAM DISTRICT** **---------------** ## **PETITIONER :** **----------------------** **SHABEEB S/O.HAMZA, CHITHRAMPALLI HOUSE, VAZHIKKADAVU P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SRI.K.C.ANTONY MATHEW** ## **RESPONDENTS / RESPONDENTS :** **--------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. ABDUL JALEEL, KURUNIAN HOUSE, OTHUNGAL - 679 325, MALAPPURAM DISTRICT.** **3. SIRAJUDHEEN, S/O.ISMAIL, CHERUKUNNAN HOUSE, ALAPOYIL, VAZHIKADAVU - 679 324, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR SMT.SAREENA.P.GEORGE.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** **Crl.MC.No. 4744 of 2014** **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A1: TRUE COPY OF ORDER DATED 09/05/2014 IN C.M.P NO.918/2014 OF THE FILES OF JFCM COURT, NILAMBUR. ANNEXURE A2: TRUE COPY OF THE RECEIPT FOR DEPOSIT OF TITLE DEEDS BY SURETIES OF THE PETITIONER ISSUED BY THE JUNIOR SUPERINTENDENT JFCM COURT, NILAMBUR.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.4744 of 2014 .................................................. Dated this the 21[st] 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, Nilambur in C.M.P.No.4179/2012 in Crime No.113/2012 of Vazhikkadavu 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 vehicle bearing registration No.KL-10AB-6127, which was seized by the Sub Inspector of Police, Vazhikkadavu on the allegation that the vehicle was used for transportation 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') and a crime has been registered as Crime No.113/2012 of Vazhikkadavu police station. The petitioner filed C.M.P.No.4179/2012 before the Judicial First Class Magistrate Court, Nilambur for interim custody of the vehicle. The learned magistrate by Annexure-AI order granted interim custody of the vehicle bearing Reg.No.KL-10-AB-6127 to 2 Crl.M.C.No.4744 of 2014 the petitioner on depositing cash security of Rs.45,000/- upon following conditions: i. That the petitioner shall execute a bond for 1,05,000/- with two solvent sureties for the like sum by furnishing bank guarantee/cash security or immovable property as security. The sureties shall produce their original title deed in the event of furnishing immovable property as security. The original title deeds shall be returned as and when interim custody is made absolute. ii. That the petitioner shall not transfer or alter the vehicle and produce the vehicle in same condition as and when required by this court. iii. The petitioner shall not allow the vehicle to use for transporting river sand illegally during his interim custody. iv. The petitioner shall produce recent photographs of the vehicle with sand, if any, duly countersigned by himself and the 3[rd] respondent. v. Return the original R.C particulars and other documents after comparing with attested copies of the same. vi. The interim custody shall be subject to the final decision of the confiscation proceedings pending before the revenue authorities. 3. The above conditions were being challenged by the petitioner by filing this petition. 4. 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 learned counsel for the petitioner and the learned Public Prosecutor. 3 Crl.M.C.No.4744 of 2014 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. The Counsel for the petitioner submitted that, in fact the conditions 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. 7. 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. 8. It is an admitted fact that, Vazhikkadavu police had seized the vehicle with No. KL-10-AB-6127 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 filed an application for interim custody under Section 451 of the Code of Criminal Procedure and the same was allowed by Annexure-AI order with the above conditions. 9. Conditions to deposit cash security to furnish bank guarantee or property security for the balance amount are being challenged by the petitioner now. It appears that, the Crl.M.C.No.4744 of 2014 4 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. 10. 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 **(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, the personal bond with sureties can be directed to be executed and that will be sufficient and that will meet the ends of justice”. 11. In view of the dictum laid down in the above decision and considering the fact that the petitioner had already paid Crl.M.C.No.4744 of 2014 5 Rs.45,000/-, this Court feels that further condition directing the petitioner to furnish bank guarantee or property security for the balance amount can be set aside and modified as follows: If the petitioner has already deposited Rs.45,000/- as directed by the court below, then the petitioner is directed to execute a bond for Rs.1,05,000/- with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court, Nilambur. On such execution of the bond, the learned Magistrate is directed to return the original title deeds produced by the sureties or the petitioner to the sureties or petitioner as the case may be after retaining attested copies of the same taken from court in the file. The other conditions will remain in tact. 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 immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.4744 of 2014 6