The petitioner is aggrieved by Annexure-A order passed by the Judicial First Class Magistrate Court, Malappuram under Section 457 Cr.PC. The petitioner sought interim custody of a vehicle bearing registration No.KL-05-T-1392 MGV Tipper allegedly involved in the illegal transport of river sand. Following the decision in Shan v. State of Kerala [2010(2) KLJ 673 (FB)] the learned Magistrate directed the petitioner to execute a bond for Rs.1,35,000/- and to deposit Rs.45,000/- and also to provide a bank guarantee or in the alternative appropriate security for the balance amount.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. The learned counsel for the petitioner submitted that the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 has been amended by Act, 15 of 2013 with effect from 25.11.2012. As per the amendment Section 23 has been substituted and a new Section has been added to the parent Act as Section 23A. It reads as follows:
“S.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 hoiurs of such seizure make a report of such seizure each before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and information of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area also. Where an 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 are not satisfactory, they shall be subjected to confiscation under sub-section (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 under section 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 under section 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.”
4. Indisputably, the crime occurred after the amendment of the Act. Learned counsel for the petitioner submits that in view of the statutory provision mentioned above, the order passed by the learned Magistrate is onerous to the petitioner. Considering the amended statutory provision and the nature of allegations, I feel that this petition can be disposed of with following conditions:
(i) The petitioner shall execute a bond for Rs.1,35,000/- (Rupees one lakh thirty five thousand only), with two solvent sureties each for the like sum to the satisfaction of the Magistrate undertaking to produce the vehicle as and when required.
(ii) He shall not transfer or cause any damage to or depreciation in the value of the vehicle.
(iii) If the petitioners fulfills these conditions, the vehicle involved in the case can be released to the petitioner for safe custody till the completion of the confiscation proceedings.
This Crl.M.C. is disposed of as above.
A.HARIPRASAD, (JUDGE)
Kvs/-