The requirement for a bank guarantee in interim custody for vehicles seized under the Kerala Forest Act is onerous and not warranted when transporting sand.

ORDER :

C.S.DIAS, J.

The petitioner is the registered owner of a lorry bearing registration No. KL-33-9772. The vehicle was seized by the Deputy Range Forest Officer, Mukkuzhy Forest Station, Pathanamthitta, on the allegation that the vehicle was used for transporting river sand from the forest in violation of Sections 27(1) (e) (iv) & (v) and 52(1) of the Kerala Forest Act, 1961. To obtain the interim custody of the vehicle, the petitioner filed a petition before the Court of the Judicial First-Class Magistrate-II, Kanjirappally, under Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity, ‘BNSS’). By Annexure B order, the learned Magistrate granted interim custody of the vehicle, but subject to the condition that the petitioner furnishes a bank guarantee for Rs.3,00,000/-, being the assessed value of the vehicle. It is aggrieved by the said condition that this Criminal Miscellaneous Case is filed. The petitioner contends that the above condition is onerous in view of the law laid down by the Hon’ble Supreme Court in Shihab etc. and another v. State of Kerala and another, [2016 (4) KHC 183] and this Court in Muhamed Ali v. State of Kerala and Others, [2025 Supreme (Online) ( Ker) 39722].

2. I have heard Sri. Sahal Shajahan, the learned counsel for the petitioner and Sri. Nagaraj Narayanan, the learned Special Public Prosecutor.

3. The learned counsel for the petitioner contends that, in Shihab’s case [2016 (4) KHC 183], the Hon’ble Supreme Court has considered an identical issue, where the seized vehicle was used for transporting river sand from the forest. After examining the scope of Section 53 of the Kerala Forest Act, it has been held that the condition of furnishing a bank guarantee for the granting of the interim custody of a vehicle is onerous.

Reliance is also placed on the decision of this Court in State of Kerala v. Thomas K.B., [2018 (1) KHC 634] wherein this Court has distinguished the decision of the Hon’ble Supreme Court in State of Karnataka v. K. Krishnan, [2000 KHC 1315] and has held that ratio in Shihab’s case [2016 (4) KHC 183] governs cases of the instant nature in light of Section 53 of the Kerala Forest Act.

4. On the contrary, the learned Special Public Prosecutor opposes the Crl. M.C. He contends that this Court in Raju Augustine and Another v. Divisional Forest Officer and Others, [2017 (5) KHC 344] has harmonised Shihab [2016 (4) KHC 183] and Krishnan’s [2000 KHC 1315] cases, and has held that Krishnan’s [2000 KHC 1315] case governs the field. He also places reliance on another decision of this Court in Vinodkumar v. State of Kerala, [2024 KHC 1537] which has followed the principles in Krishnan’s case [2000 KHC 1315].

5. In reply, the learned counsel for the petitioner points out that Krishnan’s case [2000 KHC 1315] was decided in the context of Section 63 of the Karnataka Forest Act, which expressly mandates the furnishing of a bank guarantee for its release. The Kerala Forest Act does not contain an analogous provision. Furthermore, as the present vehicle was allegedly found transporting sand, it is not liable to be confiscated because sand does not fall within the articles listed in Section 61A of the Kerala Forest Act . It is only when the confiscation proceedings are envisaged that the necessity of furnishing a bank guarantee arises.

6. Section 53 of the Kerala Forest Act reads as follows:

“ Section 53 Power to release property seized under Section 52.―

Any Forest Officer of a rank not inferior to that of a Ranger, who or whose subordinate has seized any tools, boats, vehicles or cattle under the provisions of Section 52, may release the same on the execution by the owner thereof a bond for