R.Prasad vs State Of Kerala on 21 October, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3839 of 2008()


1. R.PRASAD, AGED 55 YEARS, S/O.RAGHAVAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.RASHEED C.NOORANAD

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :21/10/2008

 O R D E R
                          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.

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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

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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.

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(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

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