IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.MC.No. 276 of 2009() ------------------------ CMP.14144/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER(S): --------------- AIDA ANTONY, W/O.ANTONY, BJ CORTEGE, KUREEPUZHA PO., THRIKADAVOOR VILLAGE. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.276 of 2009 ---------------------------------------- Dated this the 28th day of January 2009 O R D E R A motorcycle belonging to the petitioner which has allegedly involved in the commission of the offence under the Kerala Abkari Act has been seized by the police. Seizure was reported to the learned Magistrate. The petitioner applied for release of the vehicle. The learned Magistrate rejected the same on the ground that the vehicle has already been handed over to the excise officials for initiating appropriate action under Section 67B of the Kerala Abkari Act. The seizure was effected on 08/11/2008. According to the petitioner, the vehicle is unnecessarily exposed to sun and rain risking damage and deterioration of the vehicle. Subject to any appropriate conditions whether invoking the jurisdiction under Section 482 Cr.P.C or under Article 226 of the Constitution of India appropriate directions may be issued to ensure that the vehicle belonging to the petitioner is not unnecessarily exposed to sun and rain and consequent damage and deterioration. The concerns to which the Supreme Court has addressed itself to in the decision in Sunderbhai Ambalal Desai v. State of Gujarat Crl.M.C.No. 376/09 2 [SC 2003(2) KLT 1089] may kindly be borne in mind, submits the learned counsel for the petitioner. 2. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that instructions have been taken from the excise officials and notice dated 22/1/2009 has already been issued under Section 67B of the Kerala Abkari Act. The petitioner has not received the same. I am, in these circumstances, satisfied that this petition can be allowed and the vehicle can be directed to be released to the petitioner subject to appropriate terms and conditions. 3. In the result, a) This Crl.M.C is allowed. b) Impugned orders are set aside. c) Vehicle Bajaj Platinum Model Motor Cycle bearing Registration No.KL 2AA 8214 shall be released to the petitioner on the following terms and conditions: i) The petitioner shall produce all documents before the learned Magistrate to satisfy the learned Magistrate that she is the owner entitled to possession of the vehicle. ii) The petitioner shall execute a bond for the value of the vehicle to be provisionally assessed by the learned Crl.M.C.No. 376/09 3 Magistrate and shall provide bank guarantee from any nationalised bank for such amount. iii) In the bond to be executed by the petitioner, she shall undertake that the vehicle shall be produced by the petitioner before the learned Magistrate as and when directed or before the authorities under Section 67B of the Kerala Abkari Act as and when a valid order under Section 67B of the Kerala Abkari Act is passed. iv) The petitioner shall, in such bond, further undertake that the vehicle, while in her possession on the basis of this order, shall not be used or permitted to be used for commission of any offence under the Kerala Abkari Act. 4. If the bond is executed as directed above, the learned Magistrate shall issue release order and thereupon the vehicle shall be released to the petitioner in whosesoever custody it may be. (R.BASANT, JUDGE) jsr Crl.M.C.No. 376/09 4 Crl.M.C.No. 376/09 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008