Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE22D DAY OF AUGUST201431ST SRAVANA, 1936 Crl.MC.No. 4795 of 2014 () --------------------------- AGAINST THE ORDER
IN CMP19852014 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HOSDRUG DATED0804-2014 CRIME NO. 111/2014 OF NILESHWAR POLICE STATION , KASARGOD DISTRICT PETITIONER: ------------- SHAJI THOMAS, AGED44YEARS 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 ON2208-2014, 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
DATED84-2014 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 22nd day of August, 2014. ORDER
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-33- A-4570 (wrongly shown as KL-33-A40570in 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 Annexure- AI 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-A40570in 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) KLT413 and Sujith V. State of Kerala (2012 (2) KLT547, 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) KLT26 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