SHIHABUDHEEN Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the Full Bench decision of this court in Shan v. State of Kerala, 2010 3 KerLT 413 creates embargo on exercise of power under S. 457 of the Code of Criminal Procedure (The Code) in respect of a vehicle seized in connection with commission of offence punishable under S. 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'The Act') within the period of six weeks from the date of seizure This question is posed for consideration in this Revision Petition that is directed against the order in C.M.P. No. 2799 of 2012 of the Judicial First Class Magistrate Court-II, Perambra. He filed the said application under S. 457 of the Code to get interim custody of a tipper lorry bearing registration No. KL/10-P-2522 being its R.C. Owner. It was seized on 2-7-2012 alleging involvement in Crime No. 342 of 2012 of Balussery Police Station registered under S. 23 of the Act. Though the seizure of the vehicle was reported to the Magistrate by the Sub Inspector, Balussery Police Station it was not produced before the court. It was in the said circumstances that C.M.P. 2799 of 2012 was filed. After considering the rival contentions the learned Magistrate dismissed the application. Evidently, the said application has been dismissed by the learned Magistrate holding it as premature in the light of Shan's case . In Shan's case the Full Bench deemed it appropriate to direct that the proceedings under S. 23 of the Act confiscating the vehicle should be concluded within six weeks from the date of seizure of the vehicle as far as possible. It appears that the learned Magistrate construed it as an absolute inhibition on invocation of the power under S. 457 of the Cr.P.C. with the said period fixed. I am of the view that the said understanding can only be a misconception. It is evident from paragraph 13 of the decision in Shan's case that the Full Bench had not actually put restraint on powers exercisable or on exercise of power, by Magistrate's under S. 457 Cr.P.C. The pointer to such a conclusion can be had from paragraph 13 itself which reads thus:

(2.) A scanning of the above extracted paragraph would undoubtedly show that the direction thereunder is for those who are competent to deal with confiscation of the vehicle under S. 23 to conclude the confiscation proceedings in six weeks from the date of seizure of the vehicle, as far as possible. True that it was further observed that the need to consider the interim custody of the vehicle may not normally arise in case confiscation proceedings are concluded within six weeks from the date of seizure of the vehicle. The words 'may not normally arise' are sufficient to conclude that there was no total forclosure of the remedy available under S. 457 Cr.P.C. and consequently, of the exercise of power thereunder. It itself would give the indication that in cases where such exercise of power under S. 457 is found absolutely necessary, in the interest of justice, it is still available and exercisable and the decision in Shan's case cannot be understood to have put an absolute bar on exercise of that power merely because the question of granting interim custody of the vehicle arises within the period of six weeks from the date of seizure of the vehicle concerned. At the same time, taking the spirit of the decision it will only be appropriate to exercise that power with care and caution to identify the cases that invite exercise of such power warrants. If the Magistrate thinks it fit or found it proper to consider and grant the interim custody taking into account the facts and the attending circumstances the interim custody of the vehicle concerned can be given to person who makes the application for interim custody and found to be entitled to possession only in accordance with the conditions stipulated in paragraph 12 of the said judgment. Going by paragraph 12 in Shan's case the interim custody of such a vehicle can be granted only with a condition of deposit of 30% of the value of the vehicle, as determined by the appropriate authority under the Motor Vehicles Act, in cash and with a further condition to provide either a bank guarantee or immovable property security for the balance of the value of the vehicle. Further it was made clear thereunder that the amount so deposited and the security so furnished would follow the final outcome of the confiscation proceedings. Certainly, the said conditions are bound to be imposed not only while granting interim custody of such a vehicle either within or beyond, the six weeks' time from the date of seizure. As already noticed, the grant of interim custody of the vehicle within the six weeks period from the date of seizure cannot be the rule but, can only be an exception in view of Shan's case . In the said circumstances, I am of the considered view that the finding of the learned Magistrate that the application moved by the petitioner under S. 457 Cr.P.C. in C.M.P. No. 2799 of 2012 is a premature application in the light of the decision in Shan's case cannot be sustained. It is also to be noticed that going by the Full Bench decision in Shan's case the deposit of the amount or also the security furnished would follow the final outcome in the confiscation proceedings. There can be no doubt with respect to the position that in proceedings under S. 457 Cr.P.C. what can be decided is not the ownership and but only the right of possession pro tempore and it will certainly be possible and permissible for the court to issue direction for production of the same vehicle, at a later stage. In such circumstances, while granting interim custody the imperativeness to put such conditions to ensure such production that too, in good condition, for the purpose of making it available to follow the outcome of the confiscation proceedings, has to be read into.

(3.) In the said circumstances, the impugned order is set aside. The learned Magistrate will restore C.M.P. No. 2799 of 2012 into the file and consider it on merits, in accordance with law and taking into account the above observations. Such an order shall be passed within three days from the date of production of the copy of this order. This Revision Petition is disposed as above.