Judgment N. L. TIBREWAL, J. ( 1 ) BOTH these, petitions are similar as it appears that after filing S. B. Cr. Misc. Petition No. 169191, the second application has been filed by another lawyer by mistake, as such, no order is required in S. B. Cr. Misc. Petition No. 177/91. ( 2 ) THE facts of the case are that the Custom Officers checked truck No. RRM 4045 near Jaisalmer, which is at a distance of about hundred kilometers from Indo-Pak border. In the said truck 3 bags, containing imitation rough (Kharhed), were found on the roof of the cabin of the truck. The police also recovered Rs. 14,900/ -. It is not disputed before me that the recovered articles are not contraband articles, but the accusation against the accused persons is that they wanted to smuggle the said articles to Pakistan. The petitioner is the registered owner of the said truck and it is alleged that he was also present at the time of the seizure of the truck. The petitioner and other co-accused were arrested by the Custom Personnels and were produced before Special Magistrate (Economic Offences) Rajasthan, Jaipur, which is the concerned Court. The petitioner moved an application under Sec. 457, Cr. P. C. for the delivery of the aforesaid-truck. The said application was rejected by the learned trial Magistrate vide order dated 16. 1. 1991. The contention of thet learned counsel for the petitioner is that the truck was seized by the custom officers at a distance of hundred kilometers from Indo-Pak border and, as such, no presumption can be drawn that the said goods were to be transported to Pakistan. He further submits that if the truck is kept in the police custody or even in the custody of the Court in the open place, then there are every possibility that by the time when the case is decided finally, it may be completely damaged/destroyed. The learned counsel for the petitioner further submits that the petitioner is the registered owner of the said truck and there is no other claimant, as such it is in the interest of justice that the said truck should be given in his custody on such conditions which may be considered fit in the circumstances of the case. ( 3 ) CONTRARY to this, Mr. Praveen Balwada, the counsel for the Custom Department has vehemently opposed the aforesaid prayer. ( 3 ) CONTRARY to this, Mr. Praveen Balwada, the counsel for the Custom Department has vehemently opposed the aforesaid prayer. He submits that whether the accused persons shall be convicted or not under the provisions of the Customs Act, is a question to be decided by the Trial Court after recording the evidence. According to him, the petitioner was arrested alongwith the articles for which no explanation was given and the explanation given by them has been found to be false on investigation. He further submits that an order to curb the smuggling activities the petitioner should not be handed over the possession of the truck in question. ( 4 ) I have given my careful consideration on the aforesaid submissions. It is true that in the cases of smuggling of articles outside India, the Court should deal such matters with an iron hand, but it all depends on the facts and circumstances of each case and balance has to be struck in each case keeping in view the facts of that case. There is no dispute that the petitioner is the registered owner of the truck in question. It is also not in dispute more or less that the truck was seized searched at a distance of hundred kilometers from Indo-Pak border. There is no prohibition in keeping the article in question in India. Therefore, taking into consideration all the facts and circumstances and the fact that in case the truck is allowed to be kept in the custody of the Custom Department or the Court in an open place, the possibility of its being completely damaged/destroyed by the lapse of time cannot be ruled out think it just and proper to release the aforesaid truck to be delivered in the custody of the petitioner. ( 5 ) IT is, therefore, directed that truck No. RRM 4045 shall be delivered to the petitioner on the following conditions; (1) that the petitioner shall furnish a Supurdaginama in the sum of Rs. 1,50,000/- (Rupees one lakh and fifty thousand) and a solvent surety in the like amount to the satisfaction of the Chief. ( 5 ) IT is, therefore, directed that truck No. RRM 4045 shall be delivered to the petitioner on the following conditions; (1) that the petitioner shall furnish a Supurdaginama in the sum of Rs. 1,50,000/- (Rupees one lakh and fifty thousand) and a solvent surety in the like amount to the satisfaction of the Chief. Judicial Magistrate (Economic Offences) Rajasthan, Jaipur; (2) that the petitioner shall produce the said truck during the enquiry or trial of the case or as and when called upon to do so by the Chief Judicial Magistrate (Economic Offences) Rajasthan, Jaipur or by any other court:, (3) that the petitioner shall not make any alteration in the body of the truck, he will not change the colour of the truck and he shall keep it in the same condition as it delivered to him. If any alteration is needed then he shall seek prior permission of the aforesaid Court; (4) before giving delivery of the aforesaid truck at least three coloured photographs of cabinet size shall be obtained from different angles showing the number of the truck and the same shall be kept in the file of the case; (5) the petitioner shall not transfer or otherwise dispose of the aforesaid truck till the matter is finally adjudicated; (6) the petitioner shall produce the said truck in the first week after every two months before the learned Chief Judicial Magistrate (Economic offences) Rajasthan, Jaipur for his inspection; (7) the truck shall not be used for repeating such similar offences in future. ( 6 ) IF any of the aforesaid conditions is violated by the petitioner then it will be open for the learned Public Prosecutor or the Custom Department to move an application before the aforesaid Court of the learned Chief Judicial Magistrate (Economic Offences) Rajasthan, Jaipur to get back the aforesaid truck from the petitioner without any reference to this Court.