Crl.M.C. Nos. 865, 875 & 876 of 2013 v. The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934 Crl.MC.No. 865 of 2013 () -------------------------AGAINST THE ORDER IN CMP.279/2013 of J.M.F.C.,NILAMBUR DATED 23.1.2013 CRIME NO. 376/2012 OF EDAKKARA POLICE STATION , MALAPPURAM PETITIONER(S)/PETITIONER: ------------------------------- C.G.SUDHAKARAN S/O.GOPALAN NAIR, CHUNDAPARAMBIL HOUSE, SANKARAMKULAM PALEMADU, EDAKKARA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT/RESPONDENT: ------------------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM KOCHI - THROUGH THE SUB INSPECTOR OF POLICE EDAKKARA POLICE STATION, MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-03-2013, ALONG WITH CRMC. 875/2013 & CRMC. 876/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 865 of 2013 ## APPENDIX PETITIONER'S EXHIBITS: - ANNEXURE-A - TRUE COPY OF THE F.I.R AND THE SEARCH LIST IN CRIME NO.377/2012 OF THE EDAKKARA POLICE STATION DATED 7-10-2012 - ANNEXURE-B - TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC. NO.26209/2012 DATED 18-12-2012 - ANNEXURE-C - TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE J.F.C.M. NILAMBUR AS CMP NO.278/2013 DATED 9-1-2013 - ANNEXURE-D - TRUE COPY OF THE ORDER DATED 23-1-2013 PASSED BY THE J.F.C.M. NILAMBUR IN CMP NO.278/2013. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------------------- Crl.M.C.Nos.865, 875 & 876 of 2013 ----------------------------------------Dated 7[th] March, 2013 ## **ORDER** The issue involved in these three petitions filed by similarly situated persons are of the same nature and therefore, on consent, they are taken up for joint consideration and are being disposed of by this common order. 2. The petitioner in Crl.M.C.No.865 of 2013 is an accused in Crime No.376 of 2012 of Edakkara Police Station and the petitioner in Crl.M.C.No.876 of 2013 is an accused in Crime No.377 of 2012 of the same Police Station. The petitioner in Crl.M.C.No.875 of 2013 is an accused in Crime No.179 of 2012 of Vazhikkadavu Police Station. Crimes were registered against the petitioners alleging commission of offences punishable under Section 17 of the Kerala Money-Lenders Act, 1958 (for short `Act, 1958'). The Police party conducted search in the residential houses of the petitioners alleging that they are conducting money lending business without licences and in fact, in Crl.M.C.No.865 of 2013 besides the house of the petitioner the office of a document writer was also searched. Pursuant to the search, certain original documents were seized from their residential houses under separate seizure mahazars. The petitioners have filed applications under Section Crl.M.C.865, 875 & 876/2013 2 451 of the Code of Criminal Procedure seeking interim custody of the original documents seized by the police from their respective residential houses under the aforesaid seizure mahazars. In all these petitions, the petitioners have raised challenge against the search and seizure contending that they are per se illegal and without jurisdiction in the light of Section 10A of Act, 1958. It is contended that Act, 1958 is a self contained code and it did not provide any power to entry, inspection and seizure and as per Section 10A of Act, 1958 only inspectors appointed under Section 10A or licencing authority are having the power to conduct search. Certain other contentions are also raised. However, I do not think that this Court need to look into the said issue raised by the petitioners at this stage. Essentially, the petitioners are now aggrieved by Annexure-D orders viz., the orders passed by the court of the Judicial First Class Magistrate, Nilambur on the respective applications filed by the petitioners under Section 451Cr.P.C. seeking interim custody of some of the documents specifically mentioned in their respective applications which were seized by the police under seizure mahazars. Annexure-C is the petition moved under Section 451 Cr.P.C. in all these cases. Annexure-C in Crl.M.C.865 of 2013 would reveal that the petitioner has requested for return of the original documents shown as item Nos.1,3,6,7 to 10 and 20 to 22 in the seizure mahazar in that case. In Crl.M.C.865, 875 & 876/2013 3 Crl.M.C.875 of 2013 the prayer in Annexure-C was to return the original documents shown as item Nos.1,20,22,30,31,38 to 43, 47,55,56,64,67 to 72, 75,78,79,81,82,86 and 87 in the seizure mahazar in that case and in Crl.M.C.876 of 2013 the original documents shown as item Nos.1 to 11 and 22 in the seizure mahazar in that case were sought to be returned. Evidently, the learned counsel for the petitioners submits that all those documents, the originals of which are sought for, are actually the title deeds relating certain properties. The prayer of the petitioners was to return those documents after retaining the photocopies of the same. The petitioners have also given undertaking that such documents, if released to the petitioners, would be produced before the court as and when directed by the court. Evidently, such prayer of the petitioners were resisted by the prosecution stating that retention of such documents in court is essential for the trial and if such documents are returned to the petitioners it would adversely affect the prosecution case. The learned Magistrate considered the applications submitted by the petitioners under Section 451 Cr.P.C. and passed Annexure-D order, marked as such in all these petitions. 3. Evidently, all those documents, the return of which were sought for by the petitioners in their respective Annexure-C applications Crl.M.C.865, 875 & 876/2013 4 were admittedly taken from the custody and possession of the respective petitioners. As already noticed, they also gave undertaking to the effect that the originals of such documents, if returned after keeping the authenticated copies, would be produced as and when required by the court. A careful consideration of the impugned orders would reveal that no specific reason whatsoever has been mentioned in Annexure-D orders for rejecting the said prayers of the petitioners for return of the documents except that the petitioners had not disclosed the urgent requirement of such documents. It is also stated therein that retention or detention of such documents in the court would not cause any prejudice or hardships to the petitioners. There is no inviolable position that at no circumstances the originals of documents seized in connection with the commission of a crime shall not be returned to the party during the pendency of trial. In fact, such a contention will not lie in face of Section 451 Cr.P.C. that provides for interim custody of properties seized. True that it depends upon the circumstances. The prosecution, though objected to the return of such documents, did not specifically state the reason for taking such a stand except the one that it would adversely affect the prospects of the prosecution case. There can be no doubt with respect to the fact that in the light of the explanation to Section 451 Cr.P.C. that for the purpose of the said section `property' Crl.M.C.865, 875 & 876/2013 5 includes property of any kind or document which is produced before the Court or which is in its custody. Therefore, there can be no doubt that interim custody of documents can also be given to the person who sought for its custody, provided, the court finds that he is a person entitled to seek for its custody in terms of the provisions under Section 451 Cr.P.C. The concern shown by the petitioners from whose possession the original title deeds are seized cannot be said to be out of place. In the context of the contentions it is relevant to refer to the decision of the Hon'ble Apex Court in **Sunderbhai Ambalal Desai** v. **State of Gujarat** ( **AIR 2003 SC 638** ) wherein the Apex Court held that the powers under Section 451 Cr.P.C. should be exercised expeditiously and judicially as it would serve various purposes. Normally, the Court or the police would not be required to keep the articles in safe custody. However, at the same time, it is the duty of the Court to see that the property ordered to be returned by invoking the power under Section 451 Cr.P.C. is not tampered with while in custody of the person to whom it is returned. The court has also to ensure that property given in custody would be returned as and when required. To ensure scrupulous compliance with such aspects it will always be open to the court to put appropriate conditions. In this case, it is also to be noted that the very case of the prosecution is regarding the conduct of money lending Crl.M.C.865, 875 & 876/2013 6 business by the petitioners without any valid licence. I do not find any particular reason as to why the prayers of the petitioners could not be granted by putting stringent conditions. In the light of the decision of the Hon'ble Supreme Court in **Sunderbhai Ambalal Desai's** case (supra) I am of the view that there is no circumstance or situation involved in this case requiring the court to decline the requests made by the petitioners for return of the documents. At any rate, no proper reason has been assigned to decline the said prayers. In the said circumstances, the learned Magistrate is directed to pass fresh orders, taking into account the observations made in this order and more particularly, the decision of the Hon'ble Apex Court in **Sunderbhai Ambalal Desai's** case (supra) for disposal of the properties requested by the petitioners in their respective applications marked as Annexure-C in these petitions. This shall be done expeditiously, at any rate, within a period of three weeks from the date of receipt of copy of this order. It is made clear that it will be open to the court to adopt a proper procedure to get authenticated copies of the documents, the return of which is requested for if ultimately the prayers are granted. It will also be open to the court to put such conditions which are necessary for the purpose of ensuring that the documents which are returned are not tampered with or are produced before the court as and when required and also Crl.M.C.865, 875 & 876/2013 7 ensure that the properties covered by those documents are not subjected to encumbrances. To enable the learned Magistrate to pass fresh orders Annexure-D orders viz., orders dated 23.1.2013 passed in C.M.P.Nos.278, 279 and 280 of 2013 by the Court of the Judicial First Class Magistrate, Nilambur are set aside to the extent each of it declines the prayer of the petitioners for return of the properties required as per Annexure-C. All these petitions are disposed of accordingly. Sd/C.T.RAVIKUMAR Judge TKS