State of Kerala v. Reji Mon

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** **Crl.MC.No.2722 OF 2020(A)** **CRMP 121/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS** **COURT - III, ALAPPUZHA** **CRMP 165/2020 and 166/2020 OF SESSIONS COURT - II, ALAPPUZHA** **CRIME NO.358/2020 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha** ## **PETITIONER:** **STATE OF KERALA REPRESENTED BY THE INSPECTOR, SHO, ALAPPUZHA NORTH POLICE STATION.** **BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SMT. M.K.PUSHPALATHA, SR.PP** ## **RESPONDENT/S:** **REJI MON AGED 54 YEARS S/O. JAYAPRAKASH, KALHARAM VEEDU, PUNNAMADA WARD, MULLACKAL VILLAGE, ALAPPUZHA MUNICIPALITY, ALAPPUZHA.** **R1 BY ADV. SRI.GEORGE MATHEW R1 BY ADV. SRI.M.D.SASIKUMARAN R1 BY ADV. SHRI.PRAVEEN S. R1 BY ADV. SHRI.SUNIL KUMAR A.G R1 BY ADV. SRI.DIPU JAMES R1 BY ADV. SHRI.MATHEW K.T. R1 BY ADV. SHRI.GEORGE K.V. OTHER PRESENT:** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Case No. Crl.MC 2722/2020** ## **O R D E R** The State of Kerala, represented by the Station House Officer, Allappuzha North Police Station is the petitioner in this Crl.M.C. 2. The respondent herein, claiming as the owner of the Houseboat bearing Reg.No.KIV-ALP-HP-0660/11, filed C.M.P. No.121 of 2020 under Section 457 Cr.P.C. for the interim release of the Houseboat to the respondent herein. The court below as per Annexure – A order, allowed the said petition. However, since there was no direction to the Deputy Excise Commissioner to release the Houseboat to the respondent herein, the court below, on the request of the respondent herein, passed Annexure - B order directing the Deputy Excise Commissioner to release the Houseboat ## **Case No. Crl.MC 2722/2020** -3- to the respondent herein. Thereafter, the respondent herein filed C.M.P.No.165 of 2020 contending that the Houseboat was not released by the Deputy Excise Commissioner as directed in Annexure – B order. The State of Kerala filed C.M.P. No.166 of 2020 challenging Annexures - A and B orders. The court below, as per common order in C.M.P. Nos.165 and 166 of 2020, dismissed both the C.M.Ps. Aggrieved by the dismissal of C.M.P. No.166 of 2020, this Crl.M.C. has been filed. 3. Heard. 4. The learned Public Prosecutor has argued that since the word 'bond' referred to in Section 53B of the Abkari Act is qualified by the words “'by way of cash security equivalent to the market value of the vehicle”, the **Case No. Crl.MC 2722/2020** court below was not justified in releasing the Houseboat involved in this case to the respondent herein without directing the respondent to deposit cash security equivalent to the market value of the Houseboat and in the said circumstances, the order passed by the court below, releasing the Houseboat to the respondent, cannot be sustained. The learned Public Prosecutor has relied on the decision of this court in Nikhil T.M. v. Deputy Excise Commissioner, Kannur [2016(5) KHC 215] to support her argument. 5. The Division Bench of this court in Nikhil T.M. (supra), held in paragraph 18 thus:- “The words used under Section 53B are quite relevant, that such order to release the ## **Case No. Crl.MC 2722/2020** interim custody is subject to execution of “sufficient bond” by way of CASH SECURITY equivalent to the market value of the vehicle / conveyance. The term 'Bond' as per general sense, is a deed by which one person binds himself to pay a sum to another person. In the instant case, the term 'Bond' used in Section 53B of the Act is qualified by the following words “by way of cash security” with further stipulation that it shall be equivalent to the market value of the vehicle/ conveyance. When the word 'Bond' stands qualified by the words by way of cash security, there cannot be any other Bond than 'cash security' and such Bond would contain such other conditions as well, to make it a 'sufficient bond' as used in Section 53B of the Act.” 6. In view of the above decision of the Division **Case No. Crl.MC 2722/2020** -6- Bench of this court, the vehicle/conveyance involved in any Abkari offence can be released only on executing the bond with cash security equivalent to the market value of the vehicle/ conveyance, as provided under Section 53B of the Abkari Act. Since no cash security was directed to be deposited by the court below before passing the order to release the Houseboat to the respondent herein, Annexures A and B orders passed by the court below in C.M.P. No.121 of 2020 cannot be sustained. Consequently, Annexure - C order passed by the court below relating to C.M.P. No.166 of 2020 also cannot be sustained. Therefore, Annexures - A and B orders and Annexure - C order relating to C.M.P. No.166 of 2020 are liable to be set aside and I do so. In the result, this Crl.M.C. stands allowed and the **Case No. Crl.MC 2722/2020** -7- orders passed by the court below in C.M.P. No.121 of 2020 and C.M.P. No.166 of 2020 stand set aside and the court below is directed to pass order afresh on C.M.P. No.121 of 2020, in accordance with law, in the light of the observations in this order. Needless to state that the court below will fix the valuation of the Houseboat, in accordance with law, before passing order on C.M.P. No.121 of 2020. The parties shall appear before the court below on 25.11.2020. sd ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/ **Case No. Crl.MC 2722/2020** -8- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **THE TRUE COPY OF THE ORDER DATED 6.5.2020 IN CRL.M.P.NO.(TEMP) 121/2020 IN THE COURT OF SESSIONS JUDGE, ALAPPUZHA.** ## **ANNEXURE B** **A TRUE COPY OF THE ORDER DATED 8.5.2020 IN CRL.M.P.NO.(TEMP) 121/2020 IN THE COURT OF SESSIONS JUDGE, ALAPPUZHA.** ## **ANNEXURE C** **A TRUE COPY OF COMMON ORDER DATED 15.5.2020 IN CRL.MP NO.(TEMP) 165/2020 AND 166/2020 IN CRL.M.P. NO.(TEMP) 121/2020.**