Anil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939** **Crl.MC.No. 6995 of 2017 ()** **---------------------------** **(AGAINST THE ORDER/JUDGMENT IN CC 1599/2017 of J.M.F.C.-III, PUNALUR CRIME NO. 45/2001 OF PATHANAPURAM EXCISE RANGE OFFICE , KOLLAM)** **PETITIONER(S)/2ND ACCUSED:** **-------------------------** **ANIL KUMAR,** **S/O LATE NADARAJAN, LEKHA BHAVAN (KIZHAKKEMUNDAKKAL), KARAVOOR P.O., PIRAVANTHOOR VILLAGE, PUNALUR, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE, PATHANAPURAM, PUNALUR, KOLLAM DISTRICT THROUGHT THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. THE VILLAGE OFFICER PIRAVANTHOOR VILLAGE, PUNALUR, KOLLAM.** - **Addl.3 SUB REGISTRAR, PATHANAPURAM, KOLLAM** **(ADDL.R3 IS IMPLELADED AS PER ORDER IN CRL.M.A.11807/2017DATED 30/10/2017)** ## **R BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 3010-2017, THE COURT ON 7/12/2017 PASSED THE FOLLOWING:** **Crl.MC.No. 6995 of 2017 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE A1: THE TRUE COPY OF THE TAX RECEIPT DATED 13.9.2017 FOR THE YEAR 2017-18 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A2: THE TRUE COPY OF THE CERTIFICATE NO.2000/2017 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A3: THE TRUE COPY OF THE ORDER DATED 3.10.2017 IN C.M.P.N.2877/2017 IN CC NO.1599/2017 OF THE JUDICIAL FIRST CLASS MAJISTRATE COURT-III, PUNALUR.** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.6995 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of December, 2017 ## **O R D E R** The second accused in CC No. 1599/2017 pending before the Judicial First Class Magistrate Court -III, Punalur for offences punishable under sections 56(A) and (b) of Abkari Act, aggrieved by the order of the Learned Magistrate in CMP No. 2877/2017 refusing to lift the attachment of his property, has approached this Court challenging that order. 2. The petitioner herein along with the mother were arrayed as accused on an allegation that, on 18/10/2011, the accused were found in possession of Arishtam and Asavam and thereby they committed offences punishable under the Kerala Abkari Act.After investigation, final report was laid. Since the petitioner herein was not available, non bailable warrant was issued and steps under sections 82 and 83 of the Cr.P.C.were ordered. The properties, having an extent of 37.03 Ares in Re.Sy No.170/2/7 and 144/1/15 Crl.M.C.No.6995/2017 2 of Piravanthoor village, were attached by order of the Magistrate. Pending the proceedings, the first accused died and the charge against her abated. The petitioner herein surrendered in 2017 and was released on bail. Thereafter, he filed CMP No.2877/2017 before the Magistrate praying to lift the attachment of the property. The above application was dismissed by the learned Magistrate holding that the application was filed after a lapse of 8 years from the date of the attachment and in view of Section 85(3) Cr.P.C, the property vested with the Government and the accused cannot, after expiry of two years from the date of the attachment of the property, request to lift the attachment and to release the property. It was held that, the remedy available to the accused for lifting the attachment was to make a request to Government to release the property. The petitioner has to file an application before the District Collector for lifting the attachment, since the property vested with the Government, it was held. Aggrieved by the above order, the 2[nd] accused has preferred this Crl.M.C. 3. Heard both sides and examined the records. 4. The contention of the learned counsel for the petitioner herein is that, under section 85 of Cr.P.C., the moment the accused surrenders before the Court, and is released on bail, the attachment stands lifted. Once the person, against whom the proclamation was issued and whose property was attached, surrenders before the Court and standing warrants are cancelled, Crl.M.C.No.6995/2017 3 he is no longer absconding and the purpose of attachment of the property comes to an end. 5. To substantiate the above contention, learned counsel for the petitioner relied on the decisions reported in **Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others ( 2008) 4 SCC 649)** , and also the decision of this Court in **Abdul Khadar v. State of Kerala ( 2015 (5) KHC 351) .** On the other hand, learned Public Prosecutor, supporting the impugned order relied on the decision of this Court in **Moideen v. S.I.Police and another (2010 (3) ILR 796),** to contend that the right of the petitioner to get the property released from the attachment had ceased to operate in the light of the time limit prescribed under section 85 of the Act. 6. A perusal of Section 83 Cr.P.C.indicates that it enables the court to order attachment of the property of a person absconding. Section 84 Cr.P.C. deals with the claims and objections to attachment to be preferred by any person other than the proclaimed person. Section 85(1) Cr.P.C.Provides that, if the proclaimed person appears within the time limit specified in the proclamation, the court shall make an order releasing the property from the attachment. Section 85 (2) provides that if proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the Crl.M.C.No.6995/2017 4 disposal of the State Government. It is prescribed that the property shall not sold until the expiry of six months from the date of the attachment and until claim preferred or objection made therein under section 84 has been disposed of. 7. However, under section 85 (3) of Cr.P.C., if within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government voluntarily or is apprehended and brought before the court and it is proved that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, the property shall be released to him and if the property has already been sold, the net proceeds of the sale or, the residue of the sale proceeds, as the case may be, as available shall be returned. 9. Evidently, statute provides for a self contained procedure for attachment and disposal. The underlying object is to ensure the appearance of the accused and not merely to sell the property. Interpreting Section 85 (3) Cr.P.C., this court in **Moideen v. S.I.of Police and another** (supra), had held that under section 85 (3) Cr.P.C if a person appears within the time limit, he should satisfy the twin conditions mentioned therein. If the said period is over, the absconding accused is not entitled to file an application to get the property released under sub section (3) of section 85 Cr.P.C. 9. The Hon'ble Supreme Court in **Mrs. V.G.Peterson v.** Crl.M.C.No.6995/2017 5 **O.V.Forbes and Another (1963 KHC 640)** in a proceeding under the contempt of court Act held that essential purpose of keeping the property under attachment was to secure the presence of the persons against whom action is proposed to be taken. In Vimlaben's case , the Supreme Court held that provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the court and the standing warrants are cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. This view was reiterated by a Single Judge of this court in **Abdul Khadar v. State of Kerala (2015 (5) KHC 361)** , wherein it was held that on surrender of the accused within two years and the warrant is recalled, it has to be deemed that the court below was satisfied that the accused did not abscond on his own and the satisfaction is sufficient to automatically release the property from attachment. 10. It seems that in the present case the accused had appeared after two years and was released on bail. However, the question arise is whether the court can order the return of the property after two years. It seems that, this question was directly answered by a Single Bench of this Court in **Babu v. State of Kerala (2011 (3) KLT 3838).** It was specifically held in that decision that after the expiry of the two years since the attached property is at the disposal of the Government, it is open to the Crl.M.C.No.6995/2017 6 petitioner to request the Government to release the property if it is not already sold and the residue, in case any portion is sold or the sale proceeds if it is sold completely. It appears that the above decision is squarely applicable to the facts of the case. 11. In the light of the decision in Abdul Khadar v. State of Kerala (supra), essentially it has to be held that pursuant to the release of the accused on bail, his attachment stands vacated. Hence, the question regarding the release of the property, now lies within the domain of the government . Necessarily, the petitioner has to move the concerned authority with appropriate application. However, since attachment is ordered by the Court, formal order of withdrawing the attachment has to be passed by the court. Hence, while disagreeing with the finding of the court below that the accused, to lift the attachment, has to request the Government, I am inclined to hold that, in the light of the decision in Abdul Khadar v. State of Kerala (supra), it has to be presumed that purpose of attachment stands full filed. Hence, learned Magistrate ought to have ordered withdrawal of attachment. The further remedy of the petitioner herein is to move the District Collector for releasing the property, if in the meanwhile, it has not been sold. 12. Hence, Cr.M.C.is allowed in part. Attachment is deemed as withdrawn. The petitioner shall file appropriate application before the District Collector to release the property. If such application is filed, The District Collector shall pass appropriate Crl.M.C.No.6995/2017 7 orders within a period of thirty days from the date of receipt of the application treating the attachment as lifted . Crl.M.C.is allowed in part accordingly. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.6995/2017 8 Crl.M.A.No.5546 of 2017 in Crl.R.P.No.1272 of 2017