Shoukathali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 10TH DAY OF JULY 2014/19TH ASHADHA, 1936** ## **Crl.MC.No. 3834 of 2014** **----------------------------------** ## **C.M.P.NO. 5146/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KASARAGOD** **----------** ## **PETITIONER :** **---------------------** **SHOUKATHALI, AGED 34 YEARS, S/O. AMU, R/AT CHENGALA G.P. STAR NAGAR, THEKKIL FERRY P.O., CHENGALA VILLAGE, KASARAGOD THALUK, KASARAGOD DISTRICT.** **BY ADVS.SMT.HEMALATHA SRI.BINU GEORGE** ## **RESPONDENT /STATE:** **----------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 3834 of 2014** ## **-----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **ANNEXURE- I :** **TRUE COPY OF ORDER DATED 15.11.2013 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT- I, KASARAGOD IN CMP NO.5146/2013.** **RESPONDENT(S)' ANNEXURES:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.3834 of 2014 -------------------------------------------------Dated this the 10[th] day of July, 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-I, Kasaragod, in C.M.P.No.5146/2013 in Crime No.339/2012 of Vidyanagar 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-59/9175, which was seized by the respondent on the allegation that the vehicle was used for transporting 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'). The petitioner filed C.M.P.No.5146/2013 before the Judicial First Class CRMC.3834/ 2014 2 Magistrate Court-I, Kasaragod, for interim custody of the vehicle. The learned magistrate by Annexure-I order granted interim custody on conditions inter-alia that: 1. Petitioner shall execute bond for 8,00,000/- ₹ (Rupees Eight lakhs only) with two solvent sureties who each shall execute a bond for the like sum. 2. Petitioner shall Deposit 2,40,000/- (Rupees ₹ Two lakh Forty thousand only) before this court in cash. 3. Petitioner shall produce bank guarantee or property security for 5,60,000/- (Rupees Five ₹ lakhs sixty thousand only) before this court. 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. CRMC.3834/ 2014 3 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 25.11.2013. Further this court in another case granted custody by executing a bond alone. 6. 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. 7. It is an admitted fact that Vidyanagar police had seized the vehicle with No. KL-59/9175, 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-I order with following conditions. CRMC.3834/ 2014 4 1. Petitioner shall execute bond for 8,00,000/- ₹ (Rupees Eight lakhs only) with - two solvent sureties who each shall execute a bond for the like sum. 2. Petitioner shall Deposit 2,40,000/- (Rupees ₹ Two lakh Forty thousand only) before this court in cash. 3. Petitioner shall produce bank guarantee or property security for 5,60,000/- (Rupees Five ₹ lakhs sixty thousand only) before this court. 4. Petitioner shall not use or cause the said vehicle be used for unlawful activities. 5. Petitioner shall produce back the said vehicle as and when directed. 8. Condition Nos. 1 to 3 are being challenged by the 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 25.11.2013 has not been taken note of by the court below. CRMC.3834/ 2014 5 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 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 the petitioner to deposit 30% value of the vehicle and furnish bank guaranty for the balance amount is set aside and the same is modified as follows: The petitioner shall deposit 10% of the value CRMC.3834/ 2014 6 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 to 3 imposed by the court below is set aside and the same is modified, retaining the other conditions and those conditions are modified as follows: The petitioner is directed to deposit 10% of the value assessed for the vehicle, namely ₹80,000/- and execute a bond for the balance amount of 7,20,000/- with₹ two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate Court-I, Kasaragod. 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. Office is directed to communicate this order to the CRMC.3834/ 2014 7 concerned court and also hand over a copy of the order to the counsel for the petitioner to produce the same before the court below. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss