High Court of KeralaSingle Judge2008-11-20Allowed; the release of the vehicle to the peti...

P. Abdul Gafoor v. State of Kerala

Case / Petition Number:Crl.MC.No.4321 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2008-11-20
Court Decision / Holding: Crl.M.C. allowed. The impugned order is set aside. The vehicle shall be released to the petitioner subject to the following terms and conditions: (i) petitioner to prove ownership before the learned Magistrate; (ii) petitioner to execute a bond for the value of the vehicle as determined by the Magistrate; (iii) petitioner to deposit Rs. 75,000 in cash as security; (iv) petitioner to provide a bank guarantee for the balance value; (v) in the bond, petitioner undertakes to produce the vehicle before the learned Magistrate as directed or before the competent authority if an order of confiscation under the Act is passed; and (vi) the vehicle shall not be used for committing any offence under the Act while in custody. If these conditions are satisfied, the Magistrate shall issue the release order and release the vehicle to the petitioner.
Final Disposition: Allowed; the release of the vehicle to the petitioner subject to specified conditions; impugned order set aside.

Parties to the Case

Appellants / Petitioners

P. Abdul Gafoor

Respondents

State of Kerala represented by the Sub Inspector of Police, Kolathur through the Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Samsudin

Counsels for Respondents

• Public Prosecutor Sri S.U. Nazer

Case Synopsis & Summary

This Kerala High Court criminal miscellaneous case concerns the release of a motor vehicle seized in connection with crime No. 392/08 of Kolathur Police Station under The Kerala Protection of River Banks and Regulation of Removal of Sand Act. The petitioner, P. Abdul Gafoor, sought release of the vehicle from custody pending trial, arguing that continued custody would cause serious damage and loss to the vehicle and that he should be allowed to participate in the proceedings with the vehicle available for defence. The Magistrate had rejected the request on the ground that the vehicle had previously been involved in offences and had been released earlier on conditions, with fears it could be misused again. The Public Prosecutor opposed release, indicating a likelihood of repetition of offences if the vehicle were released, albeit suggesting suitable conditions if release is granted. The High Court, noting the concern in Sunderbhai Ambalal Desai v. State of Gujarat regarding safeguarding valuable property in custody, held that custody must not unnecessarily risk damage to property. It concluded that subject to strict safeguards, the vehicle could be released. The order prescribes conditions including proof of ownership, execution of bond, a cash deposit of Rs. 75,000, a bank guarantee for the balance, and an undertaking that the vehicle will not be used for any offence under the Act. If these conditions are met, the Magistrate is to release the vehicle to the petitioner.

Provisions of Law Cited

The Kerala Protection of River Banks and Regulation of Removal of Sand Act (the Act)

Legal Doctrines & Maxims

Every court must ensure valuable property is not exposed to risk of damage or deterioration while in custody; safeguarding property in custody is a legitimate judicial concern as emphasized by higher courts (Sunderbhai Ambalal Desai v. State of Gujarat).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that releasing the vehicle under appropriate conditions would prevent damage and loss while the trial proceeds, and there is no established presumption of guilt against the vehicle’s owner. The applicant contends that no confiscation steps have yet been initiated and that custody should be balanced against the risk to property, especially given prior incidents where the vehicle was released under conditions.

Contentions of Respondents

The Public Prosecutor opposed unconditional release, emphasizing the risk of the vehicle being used to commit further offences. While acknowledging that confiscation steps may not have begun, the opposition urged that any release should include stringent conditions to prevent misuse and to ensure participation in proceedings with safeguards.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sunderbhai Ambalal Desai v. State of Gujarat	SC 2003(2) KLT 1089	Positive	Court relies on the Supreme Court’s concern for safeguarding property in custody and the principle of releasing with safeguards to prevent damage/deterioration.

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Extracted Judgment Text

Exact text extracted from official judgment records.

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 ## **R.BASANT, J.** **----------------------** Crl.M.C.No.4321 of 2008 ---------------------------------------Dated this the 20[th] 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