IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.MC.No. 4517 of 2008(B) -------------------------------------- PETITIONER: ------------------- P.BAPINU, S/O. HASSAN,ARAPPURATH HOUSE, VAKKAD P.O., TIRUR MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, TIRUR. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT, J. ---------------------- Crl.M.C.No.4517 of 2008 ---------------------------------------- Dated this the 1st day of December 2008 O R D E R Petitioner's vehicle, a mini lorry, has allegedly involved in a crime committed under the provisions of 'The Kerala Protection of River Banks and Regulation of Removal of Sand Act (hereinafter referred to as 'the Act'). The vehicle has been seized. The seizure, it is submitted, was reported to the learned Magistrate. The petitioner has come to this court without and before moving the learned Magistrate for a direction to release the vehicle. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that the State has no objection against release of the vehicle in favour of the petitioner; but points out that the petitioner has come to this court without and before moving the learned Magistrate. The learned counsel for the petitioner submits that the petitioner was obliged to move this court as the learned Magistrate was not sitting at all and the vehicle was being exposed to sun and rain after its seizure. 2. I accept the submissions of the learned Public Prosecutor that the State has no objection against release of the Crl.M.C.No.4517/08 2 vehicle; but I do note that the procedure adopted by the petitioner is absolutely unjustified. The petitioner must have moved the learned Magistrate and insisted him that the petition be taken up by the learned Magistrate holding charge. Instead of doing that, the petitioner has come rushing to this court. However, I take a lenient view imbibing the concerns referred to by the Supreme Court in the decision in Sunderbhai Ambalal Desai v. State of Gujarat [SC 2003(2) KLT 1089]. I do so without intending to create any precedent accepting the submissions of the learned Public Prosecutor that the State has no objection against release of the vehicle to the petitioner subject to appropriate terms and conditions. 3. In the result, a) This petition is allowed. b) The vehicle belonging to the petitioner involved in crime No.1249/2008 of Tirur police station shall be released to the petitioner on the following terms and conditions. i) The petitioner shall produce before the learned Magistrate all documents to show that he is the person entitled to possession of the vehicle. Crl.M.C.No.4517/08 3 ii) He shall execute a bond for an amount equal to the value of the vehicle as may be determined by the learned Magistrate along with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) The petitioner shall, in the bond to be executed by him, undertake that the vehicle shall not be used while it is in his possession for commission of any offence under the Act. He further undertakes that he shall produce the vehicle before the learned Magistrate or before the District Collector if a final order for confiscation is passed under the provisions of the Act. iv) The petitioner shall deposit an amount of Rs.25,000/- (Rupees twenty five thousand only) as cash security before the learned Magistrate which amount shall be released to the petitioner on proof that the order of confiscation passed by the District Collector if any has already been complied with. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.4517/08 4 Crl.M.C.No.4517/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008