IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.MC.No. 4438 of 2008() ------------------------- CRIME NO. 287/2008 OF MAVOOR POLICE STATION CMP.4139/2008 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... PETITIONER(S): PETITIONER:- --------------------------- SUNDARAN, S/O. KELUKUTTY, AGED 43 YEARS, ARAMPURATH, THIRUVAMPADI PO., CHERUPRA, KOZHIKODE. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): RESPONDENTS/STATE:- ---------------------------------- 1. SUB INSPECTOR OF POLICE, MAVOOR POLICE STATION, KOZHIKODE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4438 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2008 O R D E R The petitioner's vehicle, a mini lorry, is alleged to be involved in the commission of the offence punishable under the Kerala Protection of River Banks and Regulation of Removal of Sand Act. The seizure was reported to the learned Magistrate. The petitioner applied for release of the vehicle. That application was rejected by the impugned order reckoning the same as an application under Section 457 Cr.P.C. The petitioner has come to this Court aggrieved by the rejection/dismissal of the application for release of the vehicle. 2. There is a dispute as to whether the order is one passed under section 451 or 457 Cr.P.C. Be that as it may, the learned Prosecutor submits that the State has no objection against release of the vehicle to the petitioner, subject to appropriate terms and conditions, which shall ensure the interests of the State. Crl.M.C.No. 4438 of 2008 2 3. I find merit in the contention of the learned counsel for the petitioner that the impugned order must be treated as one passed under Section 451 Cr.P.C. and consequently that this Crl.M.C. is maintainable as the petitioner, a party to the proceedings, has no right of revision. 4. It is unnecessary to go into that controversy as the State has no objection against release of the vehicle. I am also persuaded to take the view that the vehicle can be released to the petitioner taking note of the concerns expressed by the Supreme Court in the decision in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638). 5. In the result: a) This Crl.M.C. is allowed. b) The impugned order is set aside. c) The vehicle in question 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. 4438 of 2008 3 ii) He shall execute a bond for an amount equal to the value of the vehicle to be determined provisionally 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 to produce the vehicle before the learned Magistrate as and when directed and if so directed by the competent authority after passing a final order for confiscation, if any, under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. iv) The petitioner shall make a cash deposit of Rs.25,000/- before the learned Magistrate. v) If the above conditions are satisfied, the learned Magistrate shall issue a release order, whereupon the vehicle shall be released to the petitioner in whosesoever custody the vehicle is. (R. BASANT) Judge tm