Jaffer P.S v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 CRL.MC NO. 8192 OF 2023`** ## **`PETITIONER/CLAIM PETITIONER:`** ``` JAFFER P.S AGED 38 YEARS, S/O SULAIMAN, PADANNATTU HOUSE RAJEEV GANDHI COLONY BMC, THRIKKAKARA P.O, PIN - 682021 BY ADVS. AMEER.K.M. ASVINO SHEEJ.S M.A.MOOSA KUNJU FASNA T.Y HAZEENA BEEVI N.H ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 ``` ``` BY ADV. ``` ``` SRI. HRITHWICK C.S., PP ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION`** ``` ON 25.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.8192 OF 2023 ``` 2 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 8192 of 2023 ------------------------------------Dated this the 25[th] day of October, 2023** ## **O R D E R** The above Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 to quash Annexure-A5 order passed by the Judicial First Class Magistrate Court, Kakkanad in Crl.M.P. No.3294/2023 in Crime No.1704/2023 of Thrikkakara Police Station. Annexure-A5 is an order passed in an application filed under Section 451 of Cr.P.C. 2. The prosecution case is that the accused used a Tanker Lorry bearing Registration No.KL-59- 3 ``` CRL. M.C. NO.8192 OF 2023 ``` D-5612 to the Chithrapuzha near Water Metro Terminal Kakkanad for dumping garbage. The petitioner who is the registered owner filed an application under Section 451 of Cr.P.C. and the same was dismissed. Aggrieved by the same, this Criminal Miscellaneous Case is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. The allegation against the accused is that he committed the offences under Section 269 of the Indian Penal Code and 120(e) of Kerala Police Act. The vehicle was taken into custody when it was found illegally dispossessing waste and polluting water resources in Chithrapuzha near Water Metro Terminal Kakkanad. 5. The learned Magistrate dismissed the 4 ``` CRL. M.C. NO.8192 OF 2023 ``` petition filed under Section 451 of the Code mainly for the reason that the allegation against the accused is very serious and the learned Magistrate also observed that considering the spirit of the order of this Court dated 25.05.2023 in W.P.(C). No.7844/2023, the petitioner is not entitled interim custody. I think there is some force in the above finding of the learned Magistrate. 6. But, the counsel for the petitioner submitted that the vehicle is the livelihood of the petitioner and he is ready to comply any conditions imposed by this Court. It is also submitted that the vehicle is now parked in an open place and if it is continued to be there, it will be damaged. The Public Prosecutor opposed the 5 ``` CRL. M.C. NO.8192 OF 2023 ``` petition and supported the order passed by the learned Magistrate. 7. After hearing both sides, I think the vehicle can be released after imposing stringent conditions. In **Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638)** , the Apex Court held that powers under Section 451 should be exercised expeditiously and judiciously after imposing appropriate conditions. I am of the considered opinion that the Magistrate can be directed to release the vehicle, after imposing the conditions mentioned in **Sunderbhai Ambalal Desai’s case** (supra). Therefore, this Criminal Miscellaneous Case is disposed of in the following manner: 1. Annexure-A5 order is set aside. 6 ``` CRL. M.C. NO.8192 OF 2023 ``` 2. The Judicial First Class Magistrate Court, Kakkanad is directed to release the vehicle bearing registration No.KL59-D-5612, after imposing the conditions mentioned in **Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638).** 3. The petitioner shall not transfer the vehicle without the permission of the Court. 4. The petitioner shall not commit similar offence in future and if such offence is committed, the Police Authorities are free to approach the lower court and the lower court can pass appropriate orders to repossess ``` CRL. M.C. NO.8192 OF 2023 ``` 7 the vehicle even though this order is passed by this Court. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.8192 OF 2023 ``` 8 ## **`APPENDIX OF CRL.MC 8192/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1THE TRUE COPY OF THE F.I.R. DATED 13.09.2023 IN CRIME NO.1704/2023 OF THRIKKAKARA POLICE STATION ``` ``` ANNEXURE A2THE TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE ANNEXURE A3THE TRUE COPY OF THE INSURANCE CERTIFICATE OF THE VEHICLE. ``` ``` ANNEXURE A4THE TRUE COPY OF THE CRL.MC NO.7274 OF 2023 JUDGEMENT ``` ``` ANNEXURE A5 ``` ``` THE CERTIFIED COPY OF THE ORDER IN CRL MP 3294/2023 DATED 26.09.2023 INCRIMENO.1704/2023OF THRIKKAKARA POLICE STATION. ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE