IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.MC.No. 3703 of 2008() ------------------------- CMP.3267/2008 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER(S): --------------- ABBAS OORAKKOTTIL S/O. AYAMMUTTY, VALLIKKAPATTA, VENNAKODE. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE,MALAPPURAM POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3703 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2008 O R D E R The petitioner's vehicle – a Mini lorry KL 9/A 1252 – was allegedly involved in illicit transportation of river sand on 7.8.2008. The vehicle was seized. Application was filed before the learned Magistrate for release of the vehicle. That application was rejected by the impugned order. It is stated that the vehicle was involved in a similar offence earlier and had been released to the petitioner. On that ground, the learned Magistrate was not pleased to release the vehicle to the petitioner. Accordingly the learned Magistrate proceeded to pass the impugned order. 2. The learned counsel for the petitioner submits that the petitioner is innocent. His vehicle has not been involved in the transportation of river sand. The vehicle is unnecessarily exposed to sun and rain for the past about two months. Subject to any appropriate conditions, the petitioner may be granted release of the vehicle. He shall undertake not to use the vehicle Crl.M.C.No. 3703 of 2008 2 for any culpable activity while it is in his possession. The learned counsel further submits that this Court may take note of the concerns expressed by the Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638) to ensure that the vehicle is not compelled to endure unnecessary loss and damage. 3. The learned Prosecutor submits that the anxiety of the State is that the vehicle should not be used for illicit activity hereafter. Subject to appropriate conditions the vehicle can be released to the petitioner, concedes the Prosecutor. 4. I am satisfied in the facts and circumstances of the case that the vehicle can be directed to be released to the petitioner subject to appropriate safeguards. 5. In the result: a) This Crl.M.C. is allowed. b) The impugned order is set aside. c) The vehicle KL 9/A 1252 shall be released to the petitioner on the following terms and conditions. i) The petitioner shall produce all documents before the learned Magistrate to show that he is the person entitled to possession of the vehicle. Crl.M.C.No. 3703 of 2008 3 ii) He shall execute a bond for an amount equal to the value of the vehicle to be determined by the learned Magistrate in his assessment with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) In the bond to be executed by the petitioner, he shall undertake that the vehicle shall not be used for the commission of any offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act while it is in his possession. iv) The petitioner shall make a cash deposit of Rs.35,000/- before the learned Magistrate, which amount shall be released to the petitioner on satisfactory proof that the proceedings for confiscation initiated by the Revenue Authorities concerned is over and the amounts, if any, ordered in such proceedings have been paid and discharged. (R. BASANT) Judge tm