Kerala High Court
C.P.Ramadasan vs State Of Kerala on 21 August, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY,THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936
Crl.MC.No. 3533 of 2014 ()
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CMP.NO.3460/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM
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CRIME NO. 174/2014 OF VAZHAKKAD POLICE STATION ,MALAPPURAM DISTRICT
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PETITIONER/PETITIONER :
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C.P.RAMADASAN, S/O. KANNANKUTTY,
KURUVATTOOR AMSOM, PAIMBRA DESOM,
CALICUT TALUK, CALICUT DIST.
BY ADV. SRI.T.K.AJITH KUMAR
RESPONDENT/RESPONDENT :
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STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
VAZHAKKAD,MALAPPURAM DIST.
BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. P.MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 01-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
Crl.MC.No. 3533 of 2014 ()
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEX.A. TRUE COPY OF THE ORDER DATED 21-8-2012 PASSED BY THE
JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM IN CMP.
NO. 3460/2012.
RESPONDENT(S)' ANNEXURES: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
K. Ramakrishnan, J.
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Crl.M.C.No.3533 of 2014
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Dated this, the 01st day of July, 2014.
O R D E R
This is an application filed by the petitioner challenging the condition imposed by the court below for releasing the vehicle in Crl.M.P.3460 of 2012 in Crime No.174/2014 of Vazhakkad Police Station on the files of Judicial First Class Magistrate Court, Malappuram under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioner is the owner of vehicle bearing registration No.KL-11-AC-221 which was seized by the Sub Inspector of Police, Vazhakkad, Malappuram District, when he found that the vehicle was being used for alleged illegal transportation of river sand, he seized the same and he had registered a case as Crime No.174/2014 of that Police Station under the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Hereinafter called as Sand Act). The petitioner filed Crl.MP.No.3460/2012 for interim custody of the vehicle and the learned Magistrate, after getting the value of the vehicle Crl.M.C.No.3533 of 2014 : 2 : assessed through the Assistant Motor Vehicle Inspector, allowed the application relying on the decision reported in Shan V State of Kerala 2010 (3) KLT 413 granting inerim custody with conditions inter alia that the petitioner shall deposit Rs.90,000/- out of the amount assessed by the authorities and furnish bank quarantee or property security for Rs.1,80,000/- with other conditions. This is being challenged by the petitioner by filing this petition.
3. Heard the counsel for the petitioner and the learned Public prosecutor.
4. Counsel for the petitioner submitted that after the decision relied on by the learned Magistrate, the Act was amended by incorporating Section 23 (A) which has come in to force with effect from 25.11.2012 and there such condition has not been contemplated and a discretion was given to the Magistrate to fix the security and that has not been taken note by the learned Magistrate. So the counsel prayed for allowing the application by modifying the condition.
5. The application opposed by the learned Public Prosecutor on the ground that even after the amendment, there is no change in the dictum laid on the decision relied on by the Court below.
Crl.M.C.No.3533 of 2014 : 3 :
6. It is an admitted fact that the petitioner is the registered owner of vehicle with registration No. KL-11-AC-221 which was seized by the Sub Inspector of Police, Vazhakkad, Malappuram District, when it was found transporting with sand in that vehicle, which according to the prosecuting officer, it was a river sand transported in violation of the provisions of the Sand Act. The learned Magistrate has relied on the decision reported in Shan Vs. State of Kerala [2010 (3) KLT 413], which was later followed by this Court in Sujith Vs. State of Kerala [2012 (2) KLT 547] for imposing the condition.
7. But, after the decision of this Court, the legislature had amended the Sand Act by addition Section 23A which reads as follows:-
"23A. Confiscation of sand, vehicles, etc., (1) where any property is seized under Section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of propriety is received, the Police Officer concerned shall take steps under Section 102 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)."
(2) Where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall Crl.M.C.No.3533 of 2014 : 4 : be taken as per the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and, if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them are not satisfactory, they shall be subjected to confiscation under sub- section (4):
Provided that the disposal or release of the properties seized, for its safe custody, to any person, shall be on sufficient security and such disposal or release shall be till the completion of the confiscation proceedings under this Act:
Provided further that the sand seized shall not, for any reason be released to any person and the same shall be subjected to confiscation under sub-section (4).
(3) Where a report under sub-section (1) is received before a Sub Divisional Magistrate, a notice requiring to submit in writing within the stipulated time as stated in the notice, to show cause the reasons, if any, why the property seized under section 23 shall not be confiscated, shall be issued to the owner of, or the person having control of, the vehicle, tool, implements, loading equipment, or other article.
(4) Where the owner of the properties seized or the person having control of the same do not give explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the properties seized under section 23 have to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed to its owner or the person having its control:
Provided that the owner of the properties seized or the person having its control shall be given the liberty to reclaim it in lieu of the properties confiscated, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector.
Provided further that the sand confiscated shall not for any reason, be released by realising the value.
(5) The amount received under sub-section (4) shall, subject to the provisions of section 23D, be remitted to the River Management Fund.
(6) The sand confiscated under sub-section (4) shall be sold to Nirmithi Kendra or to 'Kalavara' at such rate, as may be fixed by the Public Works Department from time to time and such amount shall be remitted to the River Management Fund.
Crl.M.C.No.3533 of 2014 : 5 :
(7) The confiscation under this section shall be in addition to the penalty provided for the offence under this Act."
8. Section 23A of the Act deals with release of the vehicle which has been seized and the procedure to be followed after seizure. Proviso to Sub Section 2 of Section 23A of the Act deals with the power of the Magistrate in such cases which says that it can be released to the person on sufficient security and such release or disposal will be only till the completion of the confiscation proceedings under this Act. So, a discretion has been given to the Magistrate to fix the security to be furnished while considering the question of granting interim custody of the vehicle which has been seized under this Act.
9. Though such a discretion has been given, that has to be exercised judiciously. So, considering the legislative intention, this Court feels that the condition imposed by the Court below appears to be harsh and the same can be modified by showing some lieniency in fixing the secutiry to be furnished. So, the condition Nos.3 and 4 imposed by the Court below are set aside and the same is modified as follows:-
The petitioner shall deposit Rs.27,000/- (ie., Rs.2,70,000X10%) of the amount assessed on the value of the Crl.M.C.No.3533 of 2014 : 6 : vehicle before the Court below and execute the bond for the balance amount ie.Rs.2,43,000/- (90% of the value of the vehicle) with two solvent surities for the like sum each to the satisfaction of the Judicial First Class Magistrate Court, Malappuram.
The above release of the vehicle will be subject to the completion of the confiscation proceedings if any to be initiated under this Act as provided under proviso to Section 23A (2) of the Sand Act. The petitioner shall file an undertaking that he will not alienate or encumber or make any modification in the vehicle without getting prior permission from the Judicial First Class Magistrate Court, Malappuram till the consifcation proceedings are completed. Other conditions imposed by the court below will remain as such.
With the above modification of the condition imposed, the petition is disposed of.
Office is directed to communicate this order to the concerned Court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge