IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.MC.No. 4006 of 2008() ------------------------- CMP.3557/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... PETITIONER(S): --------------- SHOWKKATHALI, S/O.MUHAMMED HAJI, THONIKKADAVATH HOUSE, KOOTTILANGADI. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- 1. THE TAHSILDAR, ERNAD TALUK. 2. THE SUB INSPECTOR OF POLICE, MANJERI. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4006 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2008 O R D E R The petitioner's vehicle is allegedly involved in illicit transportation of river sand. It was seized by the officials. An application was filed under Section 457 Cr.P.C. to release the vehicle to the petitioner. That application has been dismissed by the learned Magistrate by the impugned order. The petitioner claims to be aggrieved by the impugned order. 2. The vehicle was involved in an earlier incident of violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. In respect of that incident no crime has been registered. The Revenue Authorities initiated proceedings for confiscation. The petitioner came to this Court and by interim order dt.9.5.2008 another Bench of this Court had directed that the vehicle be released to the petitioner subject to conditions, inter alia, that an amount of Rs.25,000/- must be deposited. 2 3. The allegation at present against the petitioner is that after having obtained the vehicle as per the said interim order, the vehicle was again used for transportation of river sand illicitly on 17.8.08. In respect of the present incident also no crime has been registered. The vehicle was in the custody of the police. The petitioner filed an application for release of the vehicle and the same was dismissed by the learned Magistrate by the impugned order. 4. The learned counsel for the petitioner submits that the petitioner has valid material to satisfy the authorities that the transportation of sand in the vehicle does not at all amount to any infraction of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. No crime has been registered and confiscation proceedings has not commenced. In these circumstances if it were insisted that the vehicle should remain in the custody of the police exposing it to sun and rain and to unnecessary deterioration, that would affect the interests of the petitioner and would work out injustice against him. Subject to any appropriate conditions the vehicle may be directed to be released to the petitioner, prays the learned counsel. 3 5. Notice was given to the learned Prosecutor, who submits that appropriate and strict conditions may be imposed and only after taking the requisite safeguards the vehicle can be released to the petitioner. 6. Having considered all the relevant circumstances, I am satisfied that the vehicle can be directed to be released to the petitioner subject to appropriate terms and conditions. In coming to this conclusion the concerns expressed by the Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638) do weigh with me considerably. 7. I am satisfied in the facts and circumstances of the case that the vehicle can be directed to be released to the petitioner subject to appropriate conditions. 8. 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. 4 i) The petitioner shall produce all documents before the learned Magistrate to show that he is the person entitled to possession of the vehicle. ii) He shall execute a bond for an amount equal to the value of the vehicle to be determined 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 that the vehicle shall not be used for the commission of any offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act and shall further undertake that the vehicle shall be produced before the authorities competent to confiscate the vehicle or the court concerned as and when he is directed to do so. iv) The petitioner shall make a cash deposit of Rs.50,000/- before the learned Magistrate, as condition for release of the vehicle. (R. BASANT) Judge tm