High Court of KeralaSingle Judge2014-08-22Petition disposed of; order of JFMC Hosdurg mod...

Shaji Thomas v. State of Kerala

Case / Petition Number:Crl.MC.No. 4795 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-08-22
Court Decision / Holding: The petition is allowed; the order of the JFMC Hosdurg is modified as follows: the petitioner shall deposit 20% of the value assessed by the Motor Vehicle Department and execute a bond for the balance amount with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-II, Hosdurg. The release of the vehicle will be till completion of confiscation proceedings under the Act. Other conditions imposed by the court below are retained. Office is directed to communicate this order to the concerned court immediately.
Final Disposition: Petition disposed of; order of JFMC Hosdurg modified; deposit 20% of vehicle value and bond for balance with two solvent sureties; release of vehicle pending confiscation; other conditions retained; communication to concerned court ordered.

Parties to the Case

Appellants / Petitioners

Shaji Thomas

Respondents

The State of Kerala through the Station House Officer, Nileshwar Police Station, Kasaragod District
Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. Madhu

Counsels for Respondents

• Public Prosecutor Smt. Sareena George

Case Synopsis & Summary

Shaji Thomas, the registered owner of a Mini Lorry KL-33A-4570, challenges an interim custody order passed by the Judicial First Class Magistrate Court-II, Hosdurg, in CMP 1985/2014 in Crime No. 111/2014 of Nileshwar Police Station. The vehicle was seized for alleged transport of river sand without a permit in violation of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The Magistrate granted interim custody subject to conditions: deposit of 30% of the vehicle’s value (Rs. 1,00,000) and furnishing a bank guarantee for the balance, with production of the vehicle when required and other safeguards. The petitioner contends that after Amendment Act XV/2013 introduced Section 23A, such conditions are not proper; he further argues that custody can be granted by bond alone, as reflected in Shan v. State of Kerala and Sujith v. State of Kerala. The Public Prosecutor opposes, maintaining that the court has discretion to impose suitable conditions to secure the ends of justice and to safeguard confiscation proceedings. The High Court notes the amendment and, citing Aboobacker v. State of Kerala, holds that the security can be liberally construed; it sets aside Conditions 1 and 2 and substitues with: deposit 20% of the value assessed by the Motor Vehicle Department and execute a bond for the balance with two solvent sureties for the same amount, to the court’s satisfaction, with release of the vehicle pending confiscation proceedings and retention of other conditions. The matter is disposed of and communication to the concerned court is ordered.

Provisions of Law Cited

Section 482 of CrPCSection 457 of CrPCKerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 - Section 20Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 - Section 23A

Legal Doctrines & Maxims

Liberal construction of security in interim custody under Section 23A (Aboobacker v. State of Kerala, 2014 (3) KLT 26)
Ends of justice (principle invoked in discretionary custody decisions)

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner submitted that the order under CMP 1985/2014 was framed before the 2013 Amendment Act XV/2013, which introduced Section 23A to the Kerala Act. They argued that the security provisions must be liberally construed in light of that amendment and the evolving approach to interim custody. The petitioner contends that the lower court’s requirement to deposit 30% of the vehicle’s value and to furnish a bank guarantee for the balance is unnecessarily harsh and that a bond with sureties would suffice under the liberal construction articulated in Aboobacker v. State of Kerala. They rely on Shan v. State of Kerala (2010) and Sujith v. State of Kerala (2012) to contend that custody can be granted by bond and security rather than cash, thus aligning the conditions with ends of justice. The aim is to have the vehicle released during the continuation of confiscation proceedings, reducing financial burden and avoiding undue harassment. In essence, the petitioner seeks a modification of the interim custody terms to reflect constitutional and statutory changes and to ensure a proportionate, fair approach to securing the state’s interests.

Contentions of Respondents

Respondents argued that there is no illegality in the Magistrate’s order and that the court has wide discretion to impose conditions to secure custody and eventual confiscation under the Act. They contended that the vehicle was seized for violation of river-bank protection regulations and that a deposit and security arrangement is a reasonable safeguard to ensure compliance and to meet the ends of justice. They emphasized that Section 23A is a procedural provision that does not automatically dilute the court’s power to impose appropriate conditions in interim custody, and that the lower court’s range of safeguards—such as deposit and bank guarantees—did not exceed its jurisdiction. The bench was urged to retain the present safeguards or to allow a cautious modification only if necessary to prevent abuse of the confiscation process.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shan v. State of Kerala	2010 (3) KLT 413	Mentioned Only	Cited as a precedent considered by the lower court; the present judgment references it but does not overrule or distinguish it.
Sujith v. State of Kerala	2012 (2) KLT 547	Mentioned Only	Cited as background authority; used to show prior approach to custody but not expressly overruled.
Aboobacker v. State of Kerala	2014 (3) KLT 26	Positive	Court relies on its holding that security can be liberally construed and part-payment with bond suffices to meet ends of justice.

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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 FRIDAY, THE 22ND DAY OF AUGUST 2014/31ST SRAVANA, 1936 Crl.MC.No. 4795 of 2014 () --------------------------- AGAINST THE ORDER IN CMP 1985/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HOSDRUG DATED 08-04-2014 CRIME NO. 111/2014 OF NILESHWAR POLICE STATION , KASARGOD DISTRICT PETITIONER: ------------- SHAJI THOMAS, AGED 44 YEARS S/O. THOMAS, RESIDING AT PUTHANPURAYIL, KOLLAPARA POST VALLOR, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT/STATE: ----------------------- THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER NILESHWAR POLICE STATION, KASARAGOD DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4795 of 2014 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------------- ANNEXURE A1- THE CERTIFIED COPY OF THE ORDER DATED 8-4-2014 IN C.M.P.NO. 1985/2014 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, HOSDURG. RESPONDENT(S)' EXHIBITS: NIL. ------------------------------ //TRUE COPY// P.A. TO JUDGE. dlk ## **K. Ramakrishnan, J. ============================== Crl.M.C.No.4795 of 2014 ============================== Dated this, the 22[nd] 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-II, Hosdurg, in C.M.P.No.1985/2014 in Crime No.111/2014 of Nileshwar 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 a Mini Lorry bearing registration No.KL-33A-4570 (wrongly shown as KL-33-A 40570 in the order) which was seized by the respondent on the allegation that the vehicle was used for transporting river sand without valid permit and a crime was registered as Crime No.111/2014 of Nileshwar Police Station alleging commission of offences punishable under sections 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter called 'the Act'). The petitioner filed C.M.P.No.1985/2014 before the Judicial First Class Magistrate Court-II, Hosdurg, for interim custody of the vehicle. The learned magistrate by AnnexureAI order granted interim custody on conditions inter-alia that: Crl.M.C.No.4795 of 2014 : 2 : 1. Petitioner shall deposit 30% of the value of the vehicle assessed by Joint R.T.O as Rs.1,00,000/- (Rupees One Lakh only) 2. Petitioner is directed to furnish bank guarantee or immovable property as security for the balance amount of the vehicle. The above conditions are being challenged by the petitioner by filing this petition. 3. 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 Counsel for the petitioner and the learned Public Prosecutor. 4. Heard the Counsel for the petitioner and the learned Public Prosecutor. 5. The Counsel for the petitioner submitted that, in fact the condition 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. 6. The application was opposed by the learned Public Crl.M.C.No.4795 of 2014 : 3 : 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. 7. It is an admitted fact that Hosdurg police had seized the vehicle with No.KL-33-A-4570 (wrongly shown as KL-33-A 40570 in the order) 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 had filed an application for interim custody under Section 457 of the Code of Criminal Procedure and the same was allowed by Annexure-AI order with following conditions. 1. Petitioner shall deposit 30% of the value of the vehicle assessed by Joint R.T.O as Rs.1,00,000/- (Rupees One Lakh only) 2. Petitioner is directed to furnish bank guarantee or immovable property as security for the balance amount of the vehicle. 3. Petitioner shall produce the vehicle before the court as and when required. 4. The amount deposited and security furnished will follow the final out come of the confiscation proceedings. 5. Petitioner shall produce authenticated photograph of the vehicle also original documents of the vehicle for verification. 8. Condition Nos. 1 & 2 are being challenged by the Crl.M.C.No.4795 of 2014 : 4 : petitioner now. It appears that, the 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. 9. After the above decisions, the Act has been amended by incorporating Section 23A, which deals with the procedure to be followed after confiscation, 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 sufficient sureties can be directed to be executed and that will be sufficient and that will meet the ends of justice”. 10. In view of the dictum laid down in the above decision, the condition imposed by the court below, directing Crl.M.C.No.4795 of 2014 : 5 : the petitioner to deposit 30% value of the vehicle and furnish bank guarantee for the balance amount can be set aside and the same can be modified as follows: The petitioner shall deposit 20% of the value assessed by the Motor Vehicle Department and also execute a bond for the balance amount with two solvent sureties for the like sum each to the satisfaction of that court will be sufficient and that will meet the ends of justice. So condition Nos. 1 & 2 imposed by the court below are set aside and the same are modified, retaining the other conditions as follows: The petitioner is directed to deposit 20% of the value assessed for the vehicle, namely Rs.20,000/- and execute a bond for the balance amount of Rs.80,000/- with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-II, Hosdurg. Further, the release of the vehicle will be till the completion of confiscation proceedings under this Act. Other conditions imposed by the court below is retained. With the above modification of the conditions imposed, this criminal miscellaneous case is disposed of. Crl.M.C.No.4795 of 2014 : 6 : Office is directed to communicate this order to the concerned court immediately. Sd/- **K. Ramakrishnan, Judge.** Bb _[True copy]_ _P.A to Judge_