IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.MC.No. 3839 of 2008() ------------------------- AGAINST THE ORDER DATED 07/09/2008 IN CRMP 5757/2008 IN CRMP.5756/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER(S): --------------- R.PRASAD, AGED 55 YEARS, S/O.RAGHAVAN, PUTHENPURACKAL HOUSE, ERUMAKUZHY P.O.NOORANAD, REPRESENTED BY POWER OF ATTORNEY HOLDER BINUKUMAR, AGED 38 YEARS, CHIRAKARA VEEDU, PATTOOR MURI, NOORANAD VILLAGE. BY ADV. SRI.RASHEED C.NOORANAD RESPONDENT(S): --------------- STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF POLICE, ADOOR. REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3839 of 2008 ------------------------------------------------- Dated this the 21st day of October, 2008 ORDER Three vehicles allegedly belonging to the petitioner were intercepted and seized by the police and revenue authorities on the allegation that the same were being utilised for illicit transportation of river sand. The petitioner has a case that the same is not river sand and is ordinary earth licitly imported from Tamil Nadu after payment of the requisite fee, charges etc. The seizure was reported to the court. It is submitted that the proceedings for confiscation are pending before the District Collector. 2. Be that as it may, the petitioner applied for release of the vehicles. The learned Magistrate by the impugned order rejected the application. The petitioner is aggrieved by the said rejection. Crl.M.C. No. 3839 of 2008 -: 2 :- 3. The learned counsel for the petitioner submits that the vehicles were not in any way involved in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short `the Act') and that it was a bona fide transportation of ordinary earth which is not contumacious or culpable. The learned counsel urges that, in these circumstances, the vehicles may be released unconditionally to the petitioner. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that, at the moment and with the available inputs, the conclusion appears to be irresistible that the sand transported in the vehicles is river sand and such transportation is contrary to the provisions of the Act. The learned Public Prosecutor, however, submits that the State has no objection against the release of the vehicles to the petitioner subject to appropriate conditions and reserving the right of the petitioner to raise all relevant contentions at the appropriate later stage. 5. I reckon the said stand taken by the learned Public Prosecutor to be absolutely fair and reasonable. It is not possible at the moment for this Court to come to any authentic conclusion as to whether the articles allegedly transported in the Crl.M.C. No. 3839 of 2008 -: 3 :- vehicles were river sand contrary to the provisions of the Act or only ordinary earth to which transportation no offence under the Act is attracted. Reserving the right of the petitioner to raise all such contentions, directions to release the vehicles can be issued subject to appropriate conditions. In coming to this conclusion, I imbibe the mandate of the decision of the Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638) which insists that the valuable properties should not be exposed to the risk of damage and deterioration by exposure to sun and rain. 6. In the result: (a) This Crl.M.C. is allowed. (b) The impugned order is set aside. (c) The vehicles in question 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 owner and is entitled to possession of the three vehicles concerned. (ii) He shall execute a bond for an amount equal to the total value of the vehicles concerned as provisionally assessed by the learned Magistrate with two solvent sureties each for the like sum. Crl.M.C. No. 3839 of 2008 -: 4 :- (iii) The petitioner shall deposit an amount of Rs.25,000/- each in respect of each vehicle (Rs.75,000/- in all) which amount shall be retained in court deposit and shall be released to the petitioner on proof that a favourable finding has been rendered by the District Collector in his favour in confiscation proceedings or that the amounts ordered in such confiscation proceedings have been deposited before the District Collector by the petitioner. 7. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 3839 of 2008 -: 5 :-