Shamsudheen v. Sub Inspector of Police, VazhaKKad, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 10TH DAY OF MAY 2016/20TH VAISAKHA, 1938** **Crl.MC.No.2781 of 2016 ()** **--------------------------AGAINST THE ORDER IN CMP 4783/2015 of J.M.F.C., MALAPPURAM, DATED 25.09.2015 IN CRIME NO. 463/2015 OF VAZHAKKAD POLICE STATION, MALAPPURAM** ## **PETITIONER(S)/PETITIONER:** **------------------------** **SHAMSUDHEEN, AGED 32 YEARS, S/O.ALI, THAZHATHODI HOUSE, AKKAPPARAMBA (PO), MALAPPURAM DT.** **BY ADV. SRI.T.K.AJITHKUMAR** ## **RESPONDENT(S)/RESPONDENT:** **-------------------------** **THE SUB INSPECTOR OF POLICE VAZHAKKAD, MALAPPURAM DT. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI. R. RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **:2:** _**Crl.MC.No. 2781 of 2016 () ---------------------------**_ ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -----------------------** **ANNEXURE-A TRUE COPY OF THE ORDER DATED 25.9.2015 PASSED BY THE JUDICIAL FIRST CLSS MAGISTRATE COURT, MALAPPURAM IN CMP NO.4783/2015 IN VAZHAKKAD CRIME NO.463/2015** **RESPONDENT(S)' EXHIBITS: NIL** ----------------------- // True Copy// P.A. to Judge ss ## **K. RAMAKRISHNAN, J.** ---------------------------------------------------- Crl.M.C.No.2781 of 2016 -----------------------------------------------------Dated this the 10[th] day of May, 2016 ## **ORDER** This is an application filed by the petitioner challenging the condition imposed by the Judicial First Class Magistrate Court-I, Malappuram in Crl.M.P.No.4783/2015 in Crime No.463/2015 of Vazhakkad police station under Section 482 of the Code of Criminal Procedure. 2. The petitioner is the registered owner of the vehicle with Registration No.KL-01/AD-4905 and that vehicle was seized by the respondent on the allegation of alleged illegal transportation of river sand and a crime was registered as Crime No.463/2015. The petitioner filed Crl.M.P.No.4783/2015 before the Judicial First Class Magistrate Court-I, Malappuram for release of the vehicle under Section 457 of the Code of Criminal Procedure and the learned magistrate by Annexure-A order allowed the application on executing a bond for 75,000/- with two solvent sureties and also on deposit of₹ ₹23,000/- and furnishing bank guarantee for the balance amount of ₹52,000/- with other conditions. The petitioner is challenging the third condition imposed by the court below for furnishing bank guarantee for the balance amount. Hence the petition. 3. Heard Sr.T.K. Ajithkumar, counsel appearing for the petitioner and Sri.R.Renjith, Public Prosecutor appearing for the **Crl.M.C.No.2781 of 2016** 2 State. 4. The counsel for the petitioner submitted that even as per the decision of the Full Bench of this court in **Shan C.T. v. State of Kerala and Others** (2010(3) KHC 333), after depositing portion of the amount, from the balance amount either bank guarantee or property security can be furnished. He is prepared to furnish property security instead of bank guarantee. 5. The application was opposed by the Public Prosecutor. 6. It is an admitted fact that the vehicle of the petitioner was seized by the police of Vazhakkad police station on the allegation of illegal transport of river sand and Crime No.463/2015 was registered for that purpose. It is also an admitted fact that the petitioner is the registered owner of the vehicle and he filed Crl.M.P.No.4783/2015 before the concerned magistrate court for interim custody of the vehicle under Section 457 of the Code of Criminal Procedure. The learned magistrate by Annexure-A order release the vehicle on the following conditions. 1. It is respectfully submitted that when Protection of River Banks and Regulation of Removal of Sand Act, 2001 was enacted, there was no provision for granting interim custody of the vehicles involved in the matter pending confiscation proceedings. Accordingly this Hon'ble Court, invoking the powers under Article 226 of the Constitution of India, issued several orders granting interim custody of the vehicles on various conditions. However, **Crl.M.C.No.2781 of 2016** 3 regarding the terms and conditions subject to which such interim custody is to be given there was divergence of opinion. Accordingly a Division Bench of this Hon'ble Court in Writ Appeal No.2579 of 2009 by judgment dated 4.12.2009 opined as follows. “Having regard to the fact that large number of cases involving illegal transportation of sand in violation of the provisions contained in Kerala Protection of River Banks & Regulation of Removal of sand Act, 2001, we are of the view that following guidelines/direction have to be issued with regard to the release of vehicles that may be involved in such case”. 2. Accordingly the Full Bench of this Hon'ble Court in Shan C.T. v. State of Kerala and others reported in **2010(3) KLT 413 FB: 2010(3) KHC 333 FB** , has given direction regarding how to release a vehicle seized on the allegation of illegal sand transporting. Paragraph 12 of the judgment reads as follows. “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 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 bank guarantee or immovable property security for the balance of the value of the vehicle”. 3. Thereafter, a Division Bench of this Hon'ble Court found that cases were accumulated before the Revenue Department seeking interim custody of the vehicles and as the Revenue Department was not in a position to dispose of those cases in time; several vehicles were lying in the court yards of the Police station and Revenue offices including Collectorates. In the absence of any effective provision to dispose of those vehicles, this Hon'ble Court directed the concerned authorities who are seizing the vehicles to file a report before the concerned Judicial Magistrate also. This would also enable the owners of the goods or vehicles to apply for interim custody in terms of S.301 or 307 Cr.P.C., as the case may be. Accordingly in **Sujith v. State of Kerala and Others reported in 2012(2) KLT 547 : 2012(2) KHC 275** the Division Bench of this Hon'ble Court has held that “in ordering release, the Judicial Magistrate shall be guided by the terms laid down by the Full Bench of this Court in Shan v. State of Kerala, 2010(3) KHC 333: 2010(3) KLT 413”. 4. It is respectfully submitted that thereafter, through Act 15 of 2013, the Protection of River Banks and Regulation of Removal of Sand Act, 2001 was amended and new provisions were added for the disposal of the sand and vehicles, pending adjudication of the matter. As per Section 23A of the Act, the **Crl.M.C.No.2781 of 2016** 4 concerned police officer is directed to take steps under Section 102 of Cr.P.C. Furthermore, as per the proviso to Section 23A of the Act, the seized property can be released to any person, for its safe custody, on sufficient security, till the completion of the confiscation proceedings under the Act. 5. It is humbly submitted that the provision regarding the interim custody of the vehicles involved in the matter, the legislature has intended only the safe custody of the vehicle till the completion of the confiscation proceedings under the Act. There is no specific direction to release the vehicles on deposit of any amount. Hence the impugned order passed by the learned Magistrate to the effect to deposit money and for production of Bank guarantee or property security is against the directions of the statute. 6. As the amendment Act was came into effect on 25.11.2012, after the decisions of the Full Bench and the Division Bench of this Hon'ble Court, the directions given by this Hon'ble Court in those cases need not be followed and the vehicle can be released in terms of the conditions mentioned in Sec.23A of then Act. 7. The culmination of the proceedings following the alleged seizure of the vehicle is being delayed indefinitely and during the proceedings, the vehicle is left unprotected and exposed to sun and rain. Even if the proceedings results in favour of the petitioner and entitling him to take back the vehicle, the vehicle would get damaged and the value of the same will be depreciated. It is manifest that the interim custody of the vehicle is being given to the owner of the vehicle, to avoid such irredeemable consequences. Still, the infeasible and unattainable conditions imposed by the court below makes the order granting interim custody of the vehicle, virtually ineffective and practically unusable”. 7. The petitioner is now challenging condition No.3 imposed by the court below directing the petitioner to furnish bank guarantee for the balance amount of 52,000/-. After the Full Bench₹ decision in **Shan C.T. v. State of Kerala and Others** (2010(3) KHC 333), the Act was amended and Section 23A was incorporated giving power for the magistrate to grant interim custody, subject to the orders to be passed by the confiscating authority under Section 23 of **Crl.M.C.No.2781 of 2016** 5 the Act. In **Aboobacker T.H. v. State of Kerala** (2014(3) KLT 26) this court has held that instead of bank guarantee, property security can be obtained and the amount to be deposited also can be reduced, but another Single Bench of this court in **Asharaf v. Station House** **Officer, Kasaragode Police Station and Others** (2015(2) KHC 236) held that, even after the incorporation of Section 23A to the Act, there is no substantial change in condition to be imposed for releasing the vehicle as stated in Shan's case (supra). Though there is a conflicting decision on this aspect, since the counsel for the petitioner submitted that he wanted only a modification of condition No.3 instead of bank guarantee, he may be permitted to furnish immovable property security, this court is not inclined to refer the matter to a larger bench for considering the scope of Section 23A of the Act. But however, even in Shan's case (supra) the Supreme Court has held that for the balance amount, either bank guarantee or security of immovable property can be furnished. Since the counsel for the petitioner offers immovable property as security, this court feels that instead of bank guarantee the petitioner can be permitted to furnish security by way of producing immovable property to the value of the balance amount to the satisfaction of the court as an alternative condition. So condition No.3 imposed by the court below is modified **Crl.M.C.No.2781 of 2016** 6 as follows: The petitioner shall furnish bank guarantee for the balance amount of ₹52,000/- or furnish immovable property as security to the value mentioned above to the satisfaction of the court below. With the above modification of the condition No.3 of the order passed by the court below, the petition is allowed in part and disposed of accordingly. Sd/- ## **K.RAMAKRISHNAN, JUDGE.** // True Copy// P.A. to Judge ss