James Roy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH JUNE 2008 / 57TH JYAISHTA 1930 Crl.MC.No. 2197 of 2008() ------------------------CMP.1759/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER: -----------JAMES ROY, S/O ANTONY, AGED 33 YEARS, KALLUVEETTIL HOUSE, VADUTHALA, KOCHI 23. BY ADV. SRI.SHAIJAN C.GEORGE SRI.JOHN VIPIN SMT.S.A.SHERLY SMT.SAJITHA GEORGE RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2197 of 2008 ---------------------------------------Dated this the 17[th] day of June 2008 ## **O R D E R** The petitioner claims to be the owner of a goods autorickshaw bearing No.KL-7-AW-2909. The said autorickshaw was allegedly used in violation of the provisions of the Essential Commodities Act and the LPG (Regulation) Order 2000. The autorickshaw was seized on 25/4/1008. Crime has been registered. Investigation is in progress. Seizure was effected by the Taluk Supply Officer and the vehicle was produced before the learned Magistrate. The vehicle has not been released to the petitioner so far. No steps have been initiated under Section 6A of the Essential Commodities Act for the confiscation of the vehicle. Petitioner's vehicle is being exposed to sun and rain. It faces the threat of damage, deterioration and destruction. In these circumstances, the petitioner filed a petition under Section 457 Cr.P.C for release of the vehicle to him. The police confirm that a crime has been registered and in connection with the investigation of that crime, the vehicle has been seized also. But it was reported that the seizure was by the revenue officials and Crl.M.C.No.2197/08 2 the vehicle had not been produced before court. In these circumstances, the learned Magistrate, by the impugned order rejected the prayer and dismissed the application. 2. The petitioner claims to be aggrieved by the impugned order. Petitioner's vehicle is unnecessarily being exposed to sun and rain on the short allegation that it is used for the transportation of gas cylinders. According to the petitioner, the allegation is totally incorrect and unjustified. At any rate, the seizure of the vehicle in connection with the crime and retention of the same in the custody of the police unnecessarily would work out great prejudice and injustice against the petitioner. In these circumstances, it is prayed that the vehicle may be directed to be released to the petitioner subject to any appropriate conditions invoking the powers under Section 482 Cr.P.C or invoking the powers under Article 226 of the Constitution of India. 3. The learned Public Prosecutor was requested to take instructions. It is stated categorically that no action under Section 6A of the Essential Commodities Act has been taken so far. The vehicle is still in the custody of the police, it is further Crl.M.C.No.2197/08 3 confirmed. The vehicle is property involved in a crime and the crime has already been reported to the learned Magistrate. 4. I am satisfied in these circumstances that following the decision in Sunderbhai Ambalal Desai v. State of Gujarat [SC 2003(2) KLT 1089] this court must imbibe the sense of expedition which must inform the court while dealing with matters like this. The fact that the valuable vehicle is deteriorating in the custody of the court or the police or authorities cannot be ignored or tolerated. I am satisfied, in these circumstances, that subject to the powers of the court to direct confiscation later and the powers of the District Collector to take appropriate action for confiscation if he is so advised under Section 6A of the Essential Commodities Act, the vehicle can be released to the petitioner subject to appropriate terms and conditions. Adequate safeguards can be insisted and the vehicle can be directed to be released. 5. In the result, this petition is allowed. The vehicle which is now in the custody of the police shall be released to the petitioner forthwith on the following terms and conditions: Crl.M.C.No.2197/08 4 a) The petitioner shall execute a bond equal to the value of the vehicle with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. b) The vehicle shall be kept by the petitioner in the same condition in which it is handed over to him. He shall produce the same before the learned Magistrate or the District Collector when a requisition to that effect is made by the District Collector under the provisions of the Essential Commodities Act. c) The learned Magistrate shall insist and ensure that the sureties offered are sufficient and solvent. Hand over copy of this order to the learned counsel for the petitioner. **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2197/08 5 Crl.M.C.No.2197/08 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007