Introduction:

In Shijo Mon Joseph v. State of Kerala and Another, Crl.M.C. No. 9009 of 2025, the Kerala High Court addressed a significant question regarding the legality and proportionality of imposing a bank guarantee as a condition for granting interim custody of a vehicle seized for alleged illegal transport of river sand from a forest area, ultimately holding that such a condition is onerous and contrary to the statutory scheme under the Kerala Forest Act, 1961. The petitioner, Shijo Mon Joseph, the registered owner of a lorry seized by the Deputy Range Forest Officer, Pathanamthitta, was accused of transporting river sand in violation of Sections 27(1)(e)(iv) and (v) and 52(1) of the Kerala Forest Act. Seeking temporary custody of the seized vehicle, the petitioner approached the jurisdictional Magistrate, who granted interim custody but directed him to furnish a bank guarantee of ₹3 lakhs, equivalent to the assessed value of the lorry.

Arguments:

Aggrieved by this onerous precondition, the petitioner invoked the High Court’s inherent jurisdiction under Section 482 Cr.P.C., contending that the requirement of a bank guarantee was legally unsustainable and unsupported by the statutory framework applicable to cases involving transportation of sand. Relying on the authoritative precedent of the Supreme Court in Shihab v. State of Kerala [2016 (4) KHC 183], the petitioner argued before Justice C.S. Dias that the Apex Court had already clarified that in cases involving the alleged illegal transport of sand—a commodity not listed under Section 61A of the Kerala Forest Act—imposing a condition of bank guarantee for release of vehicle was unjustified. He further relied on Kerala High Court precedents in Muhamed Ali v. State of Kerala (2025) and State of Kerala v. Thomas K.B. (2018), reiterating that Section 53 of the Act empowers the Ranger to provisionally release vehicles on execution of a bond and that mandating a bank guarantee over and above what the statute requires amounts to judicial overreach and excessive burden on the owner. The petitioner also distinguished the Supreme Court’s ruling in State of Karnataka v. K. Krishnan, which the respondents cited to justify the guarantee condition, by pointing out that the Karnataka Forest Act expressly mandates a bank guarantee for release of vehicles, whereas the Kerala Forest Act contains no such provision except in situations involving confiscation proceedings under Section 61A—proceedings inapplicable here since sand is not among the articles specified under that section. According to the petitioner, the Magistrate failed to appreciate the clear statutory distinction and had imposed a condition that the legislature never intended, thereby depriving him of substantive justice. Conversely, the respondents, represented by Special Public Prosecutor Nagaraj Narayanan, contended that the Magistrate’s imposition of the bank guarantee was essential to safeguard the State’s interests and prevent recurrence of environmental violations, arguing that the Supreme Court’s decision in Krishnan should guide the interpretation to ensure stricter compliance in forest-related offenses. They asserted that illegal sand mining is a grave ecological threat in Kerala and that more stringent conditions are warranted to deter would-be violators. The respondents also contended that the petitioner had not shown any exceptional circumstance warranting relaxation and that the bank guarantee merely ensured that the vehicle remained secured for future confiscation or proceedings.

Judgement:

Justice C.S. Dias, after extensively examining the statutory provisions, precedents, and the factual matrix of the dispute, held unequivocally that the Magistrate’s insistence on a bank guarantee was inconsistent with the law. The Court began by analyzing Sections 53 and 61A of the Kerala Forest Act, noting that Section 53 empowers the competent officer to grant interim custody of seized property upon execution of a bond, while Section 61A applies only where confiscation proceedings are initiated in respect of specified forest produce. In this case, since the alleged contraband was river sand—a material outside the purview of Section 61A—the vehicle could not be made liable for confiscation, thereby eliminating any statutory foundation for demanding a bank guarantee. The Court emphasized that the Supreme Court in Shihab had already addressed an identical situation: the alleged illegal transport of sand under the Kerala Forest Act, where the Apex Court expressly held that insisting on a bank guarantee was onerous, particularly when Section 53 already provided for release on a simple bond. Justice Dias further observed that Shihab, being a decision interpreting the Kerala Forest Act, directly applied to the present facts and held primacy over Krishnan, which involved a different statute containing an explicit requirement of bank guarantee. The Court reaffirmed that Kerala High Court decisions in Thomas and Muhamed Ali adopted the same reasoning, aligning with the statutory design that release conditions must not exceed legislative authorization. The judge criticized the Magistrate’s order as legally untenable and disproportionate, observing that judicial authorities cannot impose conditions harsher than those contemplated under the Act, especially when such conditions impede the owner’s fundamental right to property under Article 300A of the Constitution. The Court noted that imposing a bank guarantee equal to the value of the vehicle practically deprived the petitioner of meaningful relief, amounting to an indirect confiscation without due process. It held that such onerous conditions undermine the principle that penal statutes must be strictly construed and that discretionary powers must be exercised in conformity with legislative intent. The Court therefore declared that Shihab “rules the roost” in cases involving transport of sand and that any condition requiring a bank guarantee in such cases is unjustifiable. Allowing the petition, the Court quashed the impugned condition and directed the Deputy Range Officer to release the lorry to the petitioner expeditiously on his executing a bond and complying with the remaining conditions imposed by the Magistrate.