IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.MC.No. 4321 of 2008() ------------------------- CRIME NO.392/08 OF KOLATHUR POLICE STATION PETITIONER(S): PETITIONER ------------------------- P.ABDUL GAFOOR, AGED 32 YEARS, S/O.IBRAHIM, PANAKKATTU HOUSE, VENGAD P.O. MALAPPURAM DIST. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLATHUR THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4321 of 2008 ---------------------------------------- Dated this the 20th day of November 2008 O R D E R The petitioner's vehicle was allegedly used for the commission of offence punishable under 'The Kerala Protection of River Banks and Regulation of Removal of Sand Act'' (for short the Act) It was seized by the police. A crime has been registered. The seizure was reported to the learned Magistrate. No proceedings for confiscation under the Act has been initiated so far. The petitioner, in these circumstances, claimed release of his vehicle from the learned Magistrate. The learned Magistrate, by the impugned order, rejected that application on the ground that the vehicle was already used twice earlier for commission of such offences; crimes were registered on such occasions, the petitioner's vehicle was seized on such occasions and it was released later to the petitioner on conditions. 2. The learned counsel for the petitioner submits that the petitioner shall be able to substantiate in the course of the trial that his vehicle is not involved in the commission of any offence; but until then if the vehicle is kept in the custody of the Crl.M.C.No.4321/08 2 court/police, serious damage and loss would result. In these circumstances, subject to any appropriate conditions, the vehicle may be released to the petitioner, it is prayed. 3. The learned Public Prosecutor opposes the application on the ground that if released, the vehicle is likely to be and there is every chance of the same being used for repetition of the commission of such offence. If at all this court were pleased to release the vehicle, it may be on sufficient and appropriate conditions, submits the learned Public Prosecutor. I take note that no steps for confiscation of vehicle has admittedly been initiated. I take note of the concerns to which Supreme court addressed itself in the decision in Sunderbhai Ambalal Desai v. State of Gujarat [SC 2003(2) KLT 1089]. I note that every court must imbibe that concern and ensure that valuable property is not exposed to the risk of damage and deterioration in the custody of the court. I am, in these circumstances, satisfied that subject to appropriate conditions, the vehicle can be released to the petitioner. Crl.M.C.No.4321/08 3 4. In the result, a) This Crl.M.C is allowed. b) The impugned order is set aside. The vehicle shall be released to the petitioner on the following terms and conditions: i) He shall produce all documents before the learned Magistrate to satisfy the learned Magistrate that he is the owner entitled to possession of the vehicle now. ii) He shall execute a bond for the value of the vehicle to be determined by the learned Magistrate. iii) He shall make a cash deposit of Rs.75,000/- (Rupees seventy five thousand only) as security. iv) He shall produce a bank guarantee for the balance amount (the value of the vehicle less the amount of Rs.75,000/- deposited) from any bank to the satisfaction of the learned Magistrate. 5. In the bond to be executed by the petitioner, the petitioner shall undertake to produce the vehicle before the learned Magistrate as and when directed or before the competent authority if an order of confiscation under the Act is passed and a requisition is issued to the petitioner to produce Crl.M.C.No.4321/08 4 the vehicle before such authority. In the bond, the petitioner shall further undertake that the vehicle while in his custody on the basis of this order shall not be used or permitted to be used for the commission of any offence under the Act. 6. If these conditions are satisfied, release order shall be issued by the learned Magistrate and the vehicle shall be released to the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.4321/08 5 Crl.M.C.No.4321/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008