Petitioner is aggrieved by Annexure A2 order passed by the learned Magistrate on C.M.P.No.507 of 2014. Case against the petitioner is that the car owned by him was used for transporting river sand without any authority and the vehicle was intercepted on 16.1.2014 at 3.10 hours. The petitioner claims that he is the registered owner of the car bearing registration number KL-10- AL/8050. The said vehicle was taken into custody by the Sub Inspector of Police on the date of detection of the offence. 2. Heard learned counsel for the petitioner and the learned Public Prosecutor.
3. Learned counsel for the petitioner contends that the charge itself is not maintainable. However, I am not making any comment on that contention, as it is beyond the scope of this petition. Here the grievance of the petitioner is regarding imposition of conditions passed in Annexure A2 order, which according to him, are onerous in nature. Learned Magistrate allowed the petition under Section 457 of Code of Criminal Procedure with certain conditions; apparently following the Full Bench decision in Shan v. State of Kerala (2010(2) KLJ 673). The conditions are:
“1. That the petitioner shall execute a bond for Rs.1,61,000/- with 2 solvent sureties for the like sum by furnishing bank guaranty/cash security or immovable property as security.
2. That the petitioner shall not transfer or alter the vehicle and produce the vehicle in same condition as and when required by this court.
3. The petitioner shall not allow the vehicle to use for transporting river sand illegally during his interim custody.
4. The petitioner shall produce recent photographs of the vehicle with sand, if any, duly countersigned by himself and 2nd and 3rd respondents.
5. Return the original R.C particulars and other documents after comparing with attested copies of the same.
6. The interim custody shall be subject to the final decision of the confiscation proceedings pending before the revenue authorities.”
4. Learned counsel for the petitioner would submit that the conditions are not legally warranted in such matters, especially in view of recently added Section 23A to the Kerala Protection of River Banks and Regulation of Removal of sand Act 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 property 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 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) Where a report under sub-section (1) is received before a Sub-Divisional Magistrate, a notice requiring to furnish in writing within the stipulated time as stated in the notice, the reasons, if any, for not confiscating the property seized under Section 23, 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 does not furnish explanation or the explanation given is not satisfactory, and the Sub-Divisional Magistrate is satisfied that the properties seized under Section 23 are to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed in writing 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, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, in lieu of the properties confiscated:
Provided further that the sand confiscated shall not for any reason, be released by releasing 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 befixed 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.
5. On hearing both sides, I am of the view that the learned Magistrate is right in imposing conditions for the release of the vehicle. However, the conditions can be relaxed.
In the result, the petition is allowed. In the event of the petitioner executing a bond for Rs.2,30,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate, the vehicle shall be released to him. It is made clear that the petitioner shall not alienate or hand over possession of the vehicle to any third party. The petitioner shall undertake to produce the vehicle as and when required by the learned Magistrate. The release of the vehicle to the petitioner for safe custody is subject to the result of the confiscation proceedings.
The Crl.M.C is disposed of as above.
A.HARIPRASAD, JUDGE
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