JEMSHID Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS criminal miscellaneous case is filed by the petitioner, challenging the order passed by the Judicial First Class Magistrate Court, Malappuram in C.M.P.No.5507/2014 in Crime No.550/2014 of Kondotty 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 -46 - 7689, which was seized by the respondent on the allegation that the vehicle was used for transportation 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') and a crime has been registered as Crime No.550/2014 of Kondotty police station. The petitioner filed C.M.P.No.5507/2014 before the Judicial First Class Magistrate Court, Malappuram for interim custody of the vehicle. The learned magistrate by Annexure -A order granted interim custody of the vehicle on conditions inter -alia that: i. Petitioner shall execute a bond for Rs. 1,90,000/ - with two solvent sureties each for the like sum. ii. Petitioner shall deposit Rs. 70,000/ - in the court. iii. Petitioner shall produce bank guarantee for Rs. 1,20,000/ -. iv. Petitioner shall produce photograph and CD of the vehicle. v. SHO is directed to prepare a panchanama of the vehicle. vi. petitioner shall produce attested true copy of the RC. vii. Petitioner shall produce the vehicle before the court as and when directed. The above conditions were 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 learned counsel for the petitioner and the learned Public Prosecutor. 4. Heard the learned 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 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, Kondotty police had seized the vehicle with No. KL -46 -7689, 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 filed an application for interim custody under Section 451 of the Code of Criminal Procedure and the same was allowed by Annexure -A order with the above conditions. 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 25.11.2012 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 seizure, 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 with sureties can be directed to be executed and that will be sufficient and that will meet the ends of justice". So the condition imposed by the court below to deposit Rs.70,000/ - and furnish bank guarantee or property security for the balance amount are set aside and the conditions are modified as follows: The petitioner is directed to deposit 15% of the value assessed for the vehicle, namely Rs. 28500/ - and execute a bond for the balance amount of 1,61,500/ - with two solvent sureties ' for the like sum each to the satisfaction of the Judicial First Class Magistrate Court, Malappuram.