IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.MC.No. 899 of 2011(F) ------------------------------------ [CRL.MP.NO.541/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, ALATHUR, C.R. NO.1/2011 OF ALATHUR FOREST RANGE] .................... PETITIONER/PETITIONER: -------------------------------------- S.VADIVEL,NO.3161, J.PALLIYARAKOIL STREET, SALEM. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADVS. SRI.P.M.RAFIQ, SRI.V.C.SARATH. RESPONDENT/RESPONDENT: ------------------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, REPRESENTING THE FOREST RANGE OFFICER, ALATHUR. BY PUBLIC PROSECUTOR SRI. K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.899 of 2011 -------------------------------------- Dated this the 30th day of March, 2011. ORDER Petitioner is the registered owner of a hydraulic excavator, hitachi seized by the Range Officer, Alathur in connection with Crime No.1 of 2011 for offences punishable under Sections 27(1)(e)(i) and (iv) of the Kerala Forest Act (for short, “the Act”). Case is that on 26.01.2011 the accused in Crime No.1 of 2011 trespassed into the forest area and removed sand and stone using the said excavator. The vehicle was produced before learned Judicial First Class Magistrate, Alathur. Petitioner moved Crl.M.P.No.541 of 2011 under Section 451 of the Code of Criminal Procedure (for short, “the Code”) for interim custody of the excavator. That application was dismissed by the learned Magistrate observing that serious offences are involved and that protection of forest is a constitutional obligation of every citizen. Learned counsel submits that the excavator is remaining idle and that if it is exposed to the sun and rain it will get rusted and damaged. Learned Public Prosecutor after taking instruction has submitted that there is prima facie material to show that the excavator was used for commission of forest offence and that the same is liable for confiscation under Section 61A of the Act. 2. It is not disputed that even if the property is liable for confiscation there is power vested with the Magistrate to exercise power under Crl.MC No.899/2011 2 Section 451 of the Code. Hence even if the excavator is liable for confiscation as contended by the learned Public Prosecutor, interim custody of the vehicle could be ordered by the learned Magistrate. Now the question is whether that power is exercised on the facts of this case. 3. Even on the showing of petitioner, the excavator is valued at about `.30 lakhs. Naturally it will take some time be it for culmination of prosecution or proceeding for confiscation under Section 61A of the Act and by that time there is possibility of the excavator getting rusted and damaged which is not advantageous either to the petitioner or the Department. In the circumstances I am inclined to give custody of excavator to the petitioner but subject to stringent conditions having regard to the nature of offences involved. Resultantly this petition is allowed. Annexure-A, order dated 11.03.2011 on Crl.M.P.No.541 of 2011 ( in Crime No.1 of 2011 of Alathur Forest Range) is set aside. Crl.M.P.No.541 of 2011 is allowed subject to the following conditions: i. Petitioner shall produce before learned Judicial First Class Magistrate, Alathur bank guarantee for the amount being the value of excavator in question as may be assessed by the Public Works Department Mechanical Engineer (which shall be called for by the learned Magistrate) for a period of two years from this day and renewable at the option of the learned Magistrate in case prosecution or other proceeding for confiscation are not concluded within the said period. Crl.MC No.899/2011 3 ii. Petitioner shall execute a bond undertaking as follows: a. that he shall not dispose of in any manner, transfer possession or dismantle or encumber the excavator until the trial finally concludes or, other proceeding if any for confiscation under Section 61A of the Act finally concludes. b. that petitioner shall not use or cause to use the said vehicle for any offence during the period bond remains in force. c. Petitioner shall undertake to produce the excavator before the court or such other Officer dealing with the proceeding for confiscation, as may be as and when required. iii. Petitioner shall produce attested photocopies of registration particulars and other vehicular documents before learned Magistrate before the excavator is released for the satisfaction of the learned Magistrate that petitioner is the registered owner of the said excavator. iv. It is directed that in case excavator gets involved in any other case registered for any offence the bond executed by petitioner will stand forfeited. Crl.MC No.899/2011 4 On compliance of the conditions (i), (ii) and (iii) learned Magistrate shall release excavator to the petitioner by way of interim custody. THOMAS P.JOSEPH, Judge. cks