Siddique vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner challenging the order passed in C.M.P. No. 918/2014 in Crime No. 123/2014 of Nilambur Police Station of Judicial First Class Magistrate Court, Nilambur u/s 482 of Code of Criminal Procedure.

It is alleged in the petition that petitioner is the registered owner of the Tipper Lorry bearing registration No: KL-13-M-3642, and was seized by the Sub Inspector of Police, Nilambur on the allegation of illegal transportation of river sand and a case was registered as Crime No. 123/14 of Nilambur Police Station alleging commission of the offence under the provisions of Kerala Protection of River Banks and Regulation of Sand Act, 2001. (Hereinafter called as Act). The petitioner filed C.M.P. No. 918/2014 for interim custody of the vehicle and the same was allowed by the learned magistrate by Annexure A1 order on conditions inter alia to deposit Rs. 31,500/- being 30% of the value of the vehicle and furnish property security or bank guarantee for the balance amount besides other conditions. These conditions are being challenged by the petitioner by filing this petition.

Heard the Counsel for the petitioner and the learned Public Prosecutor.

The Counsel for the petitioner submitted that the learned magistrate had taken into consideration the decision reported in Shan Vs. State of Kerala, and Sujith Vs. State of Kerala, for imposing the condition. But, the learned magistrate did not consider the fact that after the above decisions, the Act has been amended by Amendment Act 15 of 2013 incorporating Section 23A which came into force on 25.11.2012 which gives power to the magistrate to release the vehicle on sufficient security alone. So, there is no necessity to deposit cash security or furnish security of property or bank guarantee and this court has in several cases of this nature shown leniency in imposing the condition for releasing the vehicle.

The application was opposed by the Public Prosecutor on the ground that there is no change in spite of the incorporation of the Section as the amendment only strengthened the views of this court in releasing the vehicle in such circumstances.

It is an admitted fact that the petitioner is the owner of Tipper Lorry bearing registration No: KL-13-M-3642 which was seized by the Sub Inspector of Police, Nilambur alleging that the vehicle was used for illegal transportation of river sand and registered a crime as Crime No. 123/2014 of Nilambur Police Station under the provisions of the above said Act. It is seen from the conditions imposed that the learned magistrate has taken into consideration the principles laid down in the decisions reported in Shan Vs. State of Kerala, followed in Sujith Vs. State of Kerala, . But, after the above said decisions, the Act itself has been amended by incorporating Section 23A whereby some relaxation has been made regarding the condition for releasing the vehicle and that aspect has not been considered by the court below.

Section 23A of the Act reads as follows:

23A. Confiscation of sand, vehicles, etc., (1) where any property is seized u/s 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 u/s 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 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 subsection (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 u/s 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 u/s 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.

(7) The confiscation under this section shall be in addition to the penalty provided for the offence under this Act.

Proviso to Section 23A(2) deals with the power of the magistrate to grant interim custody on such conditions which says that it shall be given on sufficient security and such release or disposal shall only be till the completion of the confiscation proceedings under this Act. So, some discretion has been given to the magistrate while ordering security. Considering the legislative intention in incorporating such a provision, the condition imposed by the court below relying on the decisions which were rendered prior to the amendment by the learned magistrate appears to be little harsh. So, considering the circumstances, this court feels that some relaxation can be made in the condition showing some leniency. So, the condition No. 1 imposed by the court below are set aside and modified as follows.

The petitioner shall deposit 15% of the value assessed by the Motor Vehicle Inspector namely Rs. 15,750/- before that court and execute a bond for the balance amount of Rs. 89,250/- with two solvent sureties for the like sum each to the satisfaction of the concerned magistrate. This release shall be only till the completion of the confiscation proceedings under this Act as provided under proviso to Section 23A(2) of the Act. The other conditions imposed by the court below are retained 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.