Jayesh vs The State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner challenging the conditions imposed by the Judicial First Class Magistrate''s Court, Nadapuram in C.M.P 1668/2014 u/s 482 of the Code of Criminal Procedure (hereinafter called the ''Code'').

It is alleged in the petition that the petitioner is the registered owner of the vehicle with No. KL 37 A 639 which was seized by the respondent police officers when it was found that it was transporting sand which according to the respondent is against the provisions 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.1668/2014 for interim custody of the vehicle before the Judicial First Class Magistrate''s Court, Nadapuram. The learned Magistrate by impugned Annexure V order allowed the application on condition of depositing 30% of the value of the amount and furnishing the bank guarantee or property security or the balance amount etc. The above conditions are being challenged by the petitioner before this Court.

The counsel for the petitioner submitted that the article transported in the vehicle is not river sand but ordinary sand for which he is having proper permit and after the decision relied on by the learned Magistrate the Act was amended by incorporating Section 23(A) which came into effect from 25/11/2012 and thereby there is no necessity to furnish bank guarantee or deposit cash as directed by the lower court and that fact has not been taken into consideration by the learned Magistrate while disposing the case. So according to him, the condition imposed harsh.

On the other hand learned Public Prosecutor argued that the condition imposed by the court below is perfectly legal and also the present amendment is also in tune with the decision of this Court. So there is no necessity to interfere with the condition imposed by the court below.

It is an admitted fact that the Nadapuram police had seized the vehicle belongs to the petitioner while it was found transporting sand in the vehicle. The question whether it is a river sand or ordinary sand can be considered only on the basis of evidence or after getting report if any from the concerned expert in this regard. The learned magistrate had allowed the application relying on the decision this Court in Shan Vs. State of Kerala, and Sujith Vs. State of Kerala, . But after the full Bench decision of this Court Section 23(A) was incorporated by the legislature in the Act as per Amendment Act 15 of 2013 which came into force from 25/11/2012. Section 23(2) of the Act of newly incorporated Section deals with release of the vehicle as interim custody conferring power on the Magistrate which reads as follows:

23.A. Confiscation of sand, vehicles, etc:-(1) XXXXX

(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 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 is not satisfactory, they shall be subjected to confiscation under sub-section (4):

Provided that the release of the properties seized to any person, for its safe custody, to any person or its disposal, shall be on sufficient security and such release or disposal shall only 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) XXXXXXX

(4) XXXXXXX

So it is clear from the above section even after amendment, the discretion has been given to the Magistrate regarding the interim custody of the vehicle after getting sufficient security and what is the nature of the security is to be considered by the Magistrate. So under the circumstances, it can not be said that the court below was wrong in imposing the condition. But considering the nature of the allegations made in the petition and also the contentions raised by the petitioner, the condition imposed appears to be harsh. It is true that this Court in some of the cases directed the release of the vehicle on executing bond alone but when the Act says it must be on sufficient security that must be given effect by the courts. So considering the circumstances, this Court feels that instead of directing the petitioner to deposit 1/3 of the value of the vehicle, and furnish the bank guarantee or immovable property as security for the balance amount can be set aside and the same can be modified as follows:

The petitioner shall deposit 1/10 of the amount namely Rs. 46,600/- before the court below and execute a bond for the balance amount with two solvent sureties for the like sum each to the satisfaction of the Judicial First Class Magistrate, Nadapuram. The Magistrate after verifying the title deeds if any produced after verification and satisfaction return to the parties concerned after retaining an attested copy of the same in the file. The Magistrate need not insist for deposit of the title deed with the court for this purpose.

With the above modification of the impugned order the petition is disposed of.