IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 Crl.MC.No. 2408 of 2008() ------------------------- CMP.1520/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA CRIME NO.785 OF 2007 OF ALUVA POLICE STATION .................... PETITIONER: CLAIM PETITIONER ---------------------------- NISSAR V.K., AGED 32 YEARS, S/O.KUNJUMUHAMMED, 9/140, BAHARI COTTAGE, VELLANI, EDATHALA N A D P.O. BY ADV. SRI.K.SUNILKUMAR RESPONDENTS: COMPLAINANT ------------------------ 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 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2408 of 2008 ------------------------------------- Dated this the 11th day of July, 2008 ORDER Petitioner is the 7th accused in a crime registered alleging offences punishable under the Kerala Abkari Act. It is the case of the police that a large consignment of spirit was being transported clandestinely in one vehicle - a parcel lorry. Accused persons were piloting and escorting the said vehicle in other vehicles including the two vehicles concerned in this petition. It is the case of the prosecution that all the accused persons were engaged in a unified action to transport the spirit even though the spirit was not transported in the two vehicles concerned. The petitioner applied for release of the vehicles. The learned Magistrate rejected the application by the impugned order. 2. The learned counsel for the petitioner submits that the petitioner is the owner of the vehicles entitled to its position till the proceedings are finalised. The vehicle may not be allowed to suffer damage and deterioration by unnecessary exposure to sun and rain in the custody of the court/authorities. Subject to any appropriate conditions the vehicle may be released to the petitioner in the best interests of the vehicle and to avoid unnecessary damage and deterioration to costly property. Crl.M.C. No.2408 of 2008 2 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor does not dispute the facts. The learned Public Prosecutor submits that the offence revealed and the magnitude of the offence must persuade this Court to take a strict view in the facts and circumstances of this case. Even if this Court were pleased to direct release of the vehicle, appropriate conditions and safeguards may be imposed, it is submitted. 4. I have considered all the relevant inputs. I take note of the categoric statement of the learned Public Prosecutor that no proceedings for confiscation under Section 67 B of the Kerala Abkari Act have been initiated in respect of the two vehicles in question. I must also alertly remind myself of the concern shown by the Supreme Court in the decision in Sunder bhai Ambalal Desai v. State of Gujarat [A.I.R 2003 S.C 638] in which courts have been cautioned against exposure of the vehicles and properties to sun and rain unnecessarily pending disposal of cases. 5. I am, in these circumstances, satisfied that the impugned order can be set aside and directions can be issued to release the vehicle to the petitioner. Crl.M.C. No.2408 of 2008 3 6. In the result: a) This Crl.M.C is, in these circumstances, allowed; b) The impugned order is set aside; c) The two vehicles shall be released to the petitioner on the following terms and conditions: i) The petitioner shall produce all documents to prove that he is the owner of the two vehicles entitled for possession; ii) The petitioner shall execute a bond for an amount equal to the value of the two vehicles undertaking to produce the vehicles as and when directed by the court; iii) The petitioner shall make a cash deposit of such amount (or offer bank guarantee from any nationalised bank for such amount) of the bond to the satisfaction of the learned Magistrate. (R.BASANT, JUDGE) rtr/-