ABDUL GAFOOR U. Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the registered owner of a lorry which was found transporting river sand illegally and thus Crime No. 270/2019 of Cheemeni police station was registered alleging offence under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Along with the contraband, the vehicle was also produced before court. When he moved the trial court with a petition under Sec. 451 of the Code of Criminal Procedure seeking interim custody, by the impugned order dtd. 28/1/2020, the learned Magistrate allowed the petition imposing certain conditions. The petitioner is irked by the second condition in Ext.P1 order that 'he shall furnish either a bank guarantee or immovable property as security towards the balance value of the vehicle'. According to him, now the learned Magistrate is insisting the production of the original sale deed of the property as security, which is very harsh and sought to be modified or deleted. According to him, the vehicle is remaining in police station premises exposed to sun and rain and by deleting or modifying the said condition, the vehicle is sought to be released to the petitioner.

(2.) I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. No doubt, such a condition was passed in tune with a Full Bench decision of this Court in Shan v. State of Kerala [2010(3) KLT 413 (FB)]. Therefore, the correctness of the order cannot be called in question.

(3.) Now the next question is whether the learned Magistrate is justified in insisting the production of original documents, when immovable property is offered as security. What is important is to prove the solvency of the petitioner or sureties, while immovable property is offered as security for the balance value of the vehicle. It is always not necessary to insist the production of original document of the petitioner itself for proving solvency. Therefore, if the petitioner is able to prove that he is solvent to the extent for meeting the balance value of the vehicle, the vehicle shall be released to the petitioner. Subject to the above, this original petition is disposed of.