IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 Crl.MC.No. 4104 of 2008() ------------------------- CMP.3967/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... PETITIONER(S): --------------- JAFFER SADIK, S/O.UNNEEN, THOTTATHIL HOUSE MANJERI. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): --------------- 1. TAHSILDAR, ERNAD TALUK. 2. SUB INSPECTOR OF POLICE, MANJERI. PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4104 of 2008 ------------------------------------------------- Dated this the 5th day of November, 2008 ORDER The petitioner's vehicle was seized on 17/9/08 on the allegation that it was involved in the illicit transportation of river sand. According to the petitioner, no crime has been registered and no proceedings have been initiated against the petitioner. The petitioner applied for release of the vehicle. The learned Magistrate rejected the application on the ground that the vehicle was involved in an identical allegation earlier. That had been seized and was released to the petitioner as per the order in C.M.P.No.1791/08. While the vehicle was so in the possession of the petitioner, it was allegedly used for the commission of an identical offence again. It was, in these circumstances, that the learned Magistrate passed the impugned order refusing to release the vehicle to the Crl.M.C. No. 4104 of 2008 -: 2 :- petitioner. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His vehicle has not been used for the commission of any offence. He will be able to substantiate his stand before the appropriate authorities if and when any such allegations are raised. At the moment, no crime has been registered. No proceedings are initiated against the petitioner and therefore the petitioner does not get an opportunity to urge his contentions. Subject to any appropriate conditions, the vehicle may be ordered to be released to the petitioner, it is prayed. 3. The learned Public Prosecutor does not oppose the application; but insists that appropriate and strict conditions may be imposed. The learned Public Prosecutor takes up a further plea that the petitioner claims ownership and right of possession on the basis of an agreement which the State does not accept or recognise. The learned Public Prosecutor submits that there is no reason to assume that the real owner who is using the vehicle for the illegal purpose is not coming before court. 4. Be that as it may, I am satisfied that subject to appropriate conditions the vehicle can be directed to be released to the petitioner. Appropriate safeguards can be insisted in the Crl.M.C. No. 4104 of 2008 -: 3 :- facts and circumstances of this case. 5. In the result: (a) This Crl.M.C. is allowed. (b) The impugned order is set aside. (c) The vehicle shall be released to the petitioner on the following terms and conditions: (i) The petitioner shall produce before the learned Magistrate all the documents to show that he is the owner entitled to possession of the vehicle. The learned Public Prosecutor shall be given an opportunity to be heard on the question. (ii) The petitioner shall execute a bond for the value of the vehicle with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (iii) Considering the fact that the vehicle was allegedly involved in an identical offence for the second time, the learned Magistrate shall zealously insist that the sureties offered are adequate, sufficient and solvent. (iv) In the bond to be executed by the petitioner, the petitioner shall undertake not to use the vehicle for the commission of any offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and also to Crl.M.C. No. 4104 of 2008 -: 4 :- produce the vehicle before the learned Magistrate or the competent authority if and after an order directing confiscation is made. (v) The petitioner shall make a cash deposit of Rs.50,000/- before the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge