High Court of KeralaSingle Judge2014-03-24Petition disposed of (with modification to cond...

Shahul Hameed v. State of Kerala

Case / Petition Number:Crl.M.C. No.1501 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-03-24
Court Decision / Holding: Petition disposed of with modification: the lower court’s conditions 1 and 2 are set aside and replaced with a bond of Rs 6,00,000 (Rupees six lakhs) with two solvent sureties for equal amounts, to the satisfaction of the Judicial First Class Magistrate, Perinthalmanna, and a further condition that the petitioner shall not transfer or reduce the value of the vehicle during the pendency of the case. Conditions 3, 4, 5, and 6, and the clarified confiscation proceedings under Section 23 of the KPRB Act are confirmed. The order effectively safeguards the investigation while avoiding unwarranted hardship on the petitioner. The petition is disposed of accordingly.
Final Disposition: Petition disposed of (with modification to conditions)

Parties to the Case

Appellants / Petitioners

Shahul Hameed

Respondents

State of Kerala through the Sub Inspector of Police, Kolathur Police Station, Malappuram District (represented by Public Prosecutor, High Court of Kerala)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri.T.Prasad

Counsels for Respondents

• Public Prosecutor SMT. Sareena George.P.

Case Synopsis & Summary

This Criminal Miscellaneous Case challenges the interim custody conditions imposed by the Judicial First Class Magistrate, Perinthalmanna, in connection with Crime No. 136 of 2012, registered under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Shahul Hameed, owner of a Mazda Tipper Lorry KL-10/AG-6037, contends that the police seized the vehicle without evidence of river sand in it and while the driver fled at the time of seizure; as such, the court's condition Nos. 1 and 2 are harsh and unwarranted. The State, represented by the Public Prosecutor, argues that there were complaints of illegal sand transport and that the vehicle was seen near the Kadavu, creating a reasonable suspicion of criminal use even absent sand on that occasion. Relying on Shan v. State of Kerala, the lower court held that safeguards could accompany possession of the vehicle under Section 457 CrPC. The High Court, however, finds that no sand was found and the seizure occurred under suspicion, and the circumstances do not fully align with Shan's decision. It thus modifies the order, fixing a bond of Rs 6 lakh with two sureties and prohibiting transfer or reduction in vehicle value during the trial. The order also confirms the confiscation provisions under Section 23 of the KPRB Act, and disposes of the petition.

Provisions of Law Cited

Section 482 of the Code of Criminal ProcedureSection 457 of the Code of Criminal ProcedureSection 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001

Legal Doctrines & Maxims

Shan v. State of Kerala (2010) 3 KLT 413 (FB)

Submissions & Arguments

Contentions of Appellants / Petitioners

Shahul Hameed submits that there is no material showing river sand in the vehicle KL-10/AG-6037 or its seizure at the time; the crime under the Kerala Protection of River Banks Act, 2001 was registered suo motu; the lower court's interim custody conditions under Section 457 CrPC are harsh and unwarranted since no sand was found, the driver fled, and there is no record of prior offences. He contends that the conditions 1 and 2 are not justified by the record and seeks modification to reflect that the bond and safeguards should be proportionate to the lack of direct evidence of sand transport. He argues that suspension of normal rights should not be imposed where suspicion alone does not constitute proof of wrongdoing and requests relief in the form of a fixed bond (Rs 6 lakh) with two solvent sureties and restrictions only as necessary to protect the case, while permitting other standard procedures to proceed without undue hardship.

Contentions of Respondents

The Public Prosecutor contends that there were concrete complaints about illegal river sand transport by the vehicle; the vehicle was seen near a Kadavu and the driver fled when police approached, leaving documents behind, which created a reasonable basis for suspicion. Though no sand was found during seizure, this did not negate the likelihood of future illicit use, and the vehicle was seized in the context of a suo motu inquiry under the Act. The prosecution relies on Shan v. State of Kerala to justify keeping the protective conditions in place to secure the investigation and protect the subject matter, arguing that while the present facts do not show sand, the risk of ongoing illegal activity warrants sustained caution and that Section 457 CrPC powers are rightly exercised to prevent dissipation of the vehicle and evidence during trial.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shan v. State of Kerala	2010 (3) KLT 413 (FB)	Distinguished	The High Court distinguished Shan v. State of Kerala on facts because no sand was found in the vehicle and no evidence of actual sand transport; thus the conditional measures relied upon in Shan’s case were not warranted here.

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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 K.RAMAKRISHNAN** **MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936** ## **Crl.MC.No. 1501 of 2014** **--------------------------CRIME NO. 136/2012 OF KOLATHUR POLICE STATION , MALAPPURAM ....** **PETITIONER(S):** **--------------------------** **SHAHUL HAMEED, S/O.ABOOBACKER, PALOLI HOUSE, KOLATHUR, PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADV. SRI.T.PRASAD** **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------------** **STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KOLATHUR POLICE STATION, MALAPPURAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OFKERALA.** **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 1501 of 2014** **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **---------------------------------------------** **ANNEXURE-A1: THE TRUE COPY OF THE FIR & FIS IN CRIME NO.136/2012 OF KOLATHUR POLICE STATION.** **ANNEXURE-A2: THE TRUE COPY OF THE SEIZURE MAHAZAR IN CRIME NO.136/2012 OF KOLATHUR POLICE STATION.** **ANNEXURE-A3: THE TRUE COPY OF THE ORDER DATED 20.6.2012 IN CRL.M.P NO.1643/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA.** ## **RESPONDENT(S)' ANNEXURES:** **----------------------------------------------** **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## K. RAMAKRISHNAN, J. -------------------------------------------------------------- Crl. M.C. No.1501 of 2014 --------------------------------------------------------------------Dated this the 24[th] day of March, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, challenging the condition imposed by the court below in Crl.M.P.No.1643/2012 in Crime No.136/2012 of Kolathur Police Station in Malappuram District pending before the Judicial First Class Magistrate Court-I, Perinthalmanna, under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that, the petitioner is the owner of the vehicle Mazda Tipper Lorry bearing Reg. No.KL-10/AG-6037. On 19.04.2012, the police party on patrol duty within the station limit reached Vadakkumpuram at 7.00 p.m., found that the Mazda Tipper Lorry bearing Reg.No.KL-10/AG-6037 parked in the Vadakkumpuram Kadavu and on that basis, a crime was Crl. M.C. No.1501 of 2014 2 registered under the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and it was a suo-moto case registered by the Sub Inspector of Police, Kolathur Police Station. He had seized the vehicle and a report was filed regarding the same before the concerned court. The vehicle was not parked there with river sand and there was no allegation that the vehicle was used for transporting river sand, when the case has been registered. The petitioner filed petition before the Judicial First Class Magistrate Court-I, Perinthalmanna, to grant interim custody of the vehicle under Section 457 of the 'Code' and the learned magistrate granted interim custody, as per Annexure-A3 order, imposing certain conditions, which is being challenged by the petitioner by filing this application. 3. Heard the counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that, Crl. M.C. No.1501 of 2014 3 there was no allegation that, sand was found in the vehicle and it was not seized at the time when the sand was illegally transported as well. So under the circumstance, the lower court was not justified in imposing such a harsh condition. The learned Public Prosecutor submitted that, there were complaints received that, this vehicle is being used for illegal transport of river sand and the vehicle was seen parked near the Kadavu from where sand is being transported and on seeing the police party, the driver left the vehicle and ran away from there. So on the basis of suspicion that, the vehicle is being used for transport of river sand and for that purpose the vehicle has come there and since there is no documents and the driver left the place leaving the vehicle there, they seized the vehicle and the crime was registered. 5. If the vehicle has been used for transport of river sand and the vehicle was seized along with the river sand illegally transported, then the conditions imposed by 4 Crl. M.C. No.1501 of 2014 the court below cannot be said to be harsh or illegal because it was in tune with the judgment of this court in **Shan v. State of Kerala [2010 (3) KLT 413 (F.B)]** . But in this case, it is seen from the records and also the submission made by the learned Public Prosecutor that, there was no sand in the vehicle, but it was seen parked near the Kadavu at the time when it was seized. It was also submitted by the learned Public Prosecutor that, on seeing the police party, the driver of the vehicle ran away from the place. So that created suspicion and it was on that basis that the crime was registered and the vehicle was seized. I am not at this stage going into the question as to whether the suspicion created in the mind of the officer for registering the crime and seizing the vehicle alone is sufficient to come to the conclusion that the vehicle was used for commission of offence under the Act. I am also not expressing any opinion, as to whether the circumstances narrated by the learned Public Prosecutor will be sufficient Crl. M.C. No.1501 of 2014 5 for attracting the offence or not. But considering the fact that, no sand was found in the vehicle and it was not seized at the time when it was transporting the sand, this court feels that, condition Nos.1 and 2 imposed by the court below in tune with the decision in Shan's case (supra) appears to be not warranted in this case. Further the prosecution also has no case that, this vehicle had involved in similar offences earlier as well, except the suspicion. So under the circumstances, this court feels that, the condition Nos.1 and 2 imposed by the court below can be set aside and the same can be modified as follows: The petitioner is directed to execute a bond for 6,00,000/-, being the value assessed by the₹ motor vehicle department, with two solvent sureties for the like sum each, to the satisfaction of the Judicial First Class Magistrate Court-I, Perunthalmanna, and also on further condition that, the petitioner shall not transfer or do Crl. M.C. No.1501 of 2014 6 anything to reduce the value of the vehicle, during the pendency of the case. With the above modification of the conditions imposed by the court below and the condition Nos. 3, 4, 5 and 6 and also the clarification made by the court below in respect of the confiscation proceedings that can be initiated under Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 are confirmed. With the above modification of the impugned order of the court below, the petition is disposed of. Sd/- ## K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss