IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.MC.No. 4349 of 2008() ----------------------------------- CMP NO.3406/2008 IN CR. NO.418/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, PERINTALMANNA ....................... PETITIONER/PETITIONER: ------------------------------------ KUNJIMOHAMMED ,S/O. KUNJIKOYA KOYIMMA HOUSE, CHENGOTTOOR (PO) AKKAPPARAMBA MALAPPURAM DIST. BY ADV. SRI.P.SHAMSUDIN RESPONDENT/RESPONDENT: ------------------------------------------ STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLATHUR THROUGH 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 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4349 of 2008 ------------------------------------------------- Dated this the 19th day of November, 2008 ORDER The petitioner's vehicle – Mini lorry bearing registration No.KL 10-C 5650, was seized on the allegation that it was used for illicit transportation of river sand contrary to the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. The seizure was reported to the learned Magistrate. The application under Sec.451 Cr.P.C. for release of the vehicle filed by the petitioner was dismissed by the learned Magistrate on the ground that the same vehicle was involved in two earlier instances of illicit transportation of sand and they were released to the petitioner in such crimes. The vehicle having been used again for the commission of identical offence, the learned Magistrate felt that the vehicle is not liable to be released. Accordingly, the Crl.M.C. No. 4349 of 2008 -: 2 :- impugned order was passed. 2. The learned counsel for the petitioner submits that the petitioner has valid grounds to show that his vehicle is not involved in any such offence as alleged. The petitioner shall be able to establish this fact in the course of trial. No proceedings has been initiated for confiscation of the vehicle under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. In these circumstances, pending investigation of the crime and final disposal of the case, if the vehicle were kept in custody, that would cause serious prejudice and hardship to the petitioner. Subject to any appropriate conditions, the vehicle may be ordered to be released to the petitioner, it is prayed. 3. The learned Public Prosecutor repeats the objection on the ground that the vehicle was involved in two earlier instances of identical crime. If at all the vehicle were to be released to the petitioner, appropriate and strict conditions may be imposed, it is prayed. 4. I have considered all the relevant inputs. The considerations which weighed with the Supreme Court in the decision in Sunderbhai Ambalal Desai v. State of Gujarat Crl.M.C. No. 4349 of 2008 -: 3 :- (AIR 2003 SC 638) do weigh with me to come to the conclusion which I propose to. I am satisfied that the vehicle can now be directed to be released to the petitioner subject to appropriate and strict conditions. The anxiety to ensure avoidable damage and deterioration to the vehicle prompts me to come to such a conclusion. 5. In the result: (a) This Crl.M.C. is allowed. (b) Vehicle No.KL 10-C 5650 shall be released to the petitioner on the following terms and conditions: (i) The petitioner shall produce all documents to show that he is the owner entitled to possession of the vehicle. (ii) He shall execute a bond for the value of the vehicle to be determined by the learned Magistrate. (iii) He shall deposit an amount of Rs.75,000/- as cash security before the court below. (iv) For the balance amount (value of the vehicle less the amount of Rs.75,000/-), the petitioner shall provide a bank guarantee from any bank to the satisfaction of the learned Magistrate. (v) The petitioner shall execute a bond undertaking not to Crl.M.C. No. 4349 of 2008 -: 4 :- use the vehicle or permit the vehicle to be used for commission of any offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act while the vehicle is in his possession under this order. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge