Joby Joseph v. Deputy Superintendent of Police, Thrissur and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 **WP(C).NO. 5424 OF 2010(C)** ------------------------- PETITIONER(S): --------------- JOBY JOSEPH, AGED 37 YEARS, S/O.JOSEPH, POZHOLIPARAMBIL HOUSE, PROP STEEL MAX METALS, POOTHOLE ROAD, WEST FORT, THRISSUR-4. BY ADV. SRI.S.SREEKUMAR SRI.M.B.PRAJITH RESPONDENT(S): --------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, THRISSUR. 2. THE CIRCLE INSPECTOR OF POLICE, THRISSUR WEST POLIST STATION, THRISSUR. 3. THE SUB INSPECTOR OF POLICE, THRISSUR WEST POLICE STATION, THRISSUR. 4. THE SR.INSPECTOR OF POLICE, - V.P.ROAD POLICE STATION, V.P.ROAD, MUMBAI-400004. 5. ASSISTANT POLICE INSPECTOR, V.P.ROAD POLIC ESTATION, V.P.ROAD, MUMBAI-400004. 6. HARISH JEEVARAM PATEL, HARISH METALS, 12/211, KURGA DEVI STREET, MUMBAI-4. **WP(C).NO. 5424 OF 2010 :: 2 ::** 7. BIJU JOSEPH, S/O.JOSEPH, THARAKAN HOUSE, CHITTILAPPILLY DESOM, THRISSUR. 8. STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, TRIVANDRUM. R6 BY ADVS. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH, SRI.SAIJO HASSAN, SRI.A.S.SABU, SRI.BENOJ C AUGUSTIN, SRI.PRATHAP PILLAI, & SRI.RAFEEK. V.K. R7 BY ADV. SRI.SABU GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).NO. 5424 OF 2010 :: ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** EXT.P1: TRUE COPY OF THE PURCHASE BILLS BY THE 7TH RESPONDENT. EXT.P2: TRUE COPY OF THE VAT CHALLAN ISSUED TO THE PETITIONER. EXT.P3: TRUE COPY OF THE SALES TAX REGISTRATION OF THE PETITIONER'S SHOP. EXT.P4: TRUE COPY OF THE PLAINT IN O.S.NO.237 OF 2010. EXT.P5: TRUE COPY OF THE INJUNCTION ORDER. EXT.P6: TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT. EXT.P7: TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ## **RESPONDENTS' EXHIBITS: NIL** //true copy// P.S. To Judge SK/- # **THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ.** **------------------------------------------------W.P.(C)No.5424 of 2010** **------------------------------------------------Dated this the 13[th] day of July, 2010** ## **JUDGMENT** ## **THOTTATHIL B.RADHAKRISHNAN, J.** This Writ petitioner seeks direction to respondents 1 to 3, who are police officers, to provide adequate police protection to his life and materials claimed by the petitioner as belonging to him and stored in a business premises, of which he claims to be the present tenant. The petitioner further seeks a direction to respondents 4 and 5 (erroneously shown in the relief portion of the writ petition as respondents 5 and 6), who are police officers in the State of Maharashtra to return to the petitioner, the materials seized as per the panchnama prepared by the said police officers. 2. Having gone through the records and after hearing the arguments today, the fundamental issue thrust is for relief of return ## **W.P.(C)No.5424 of 2010** ## **:: 2 ::** of the materials stated to have been seized under the punchnama by the officers of the Maharashtra police. The prayer for police protection for life and materials appears to be only incidental. 3. The crux of the issue relates to the alleged search and seizure made by the officers of the Maharashtra Police in a business premises in Thrissur. That was generated on an investigation following a reference under Section 156(3) of the Code of Criminal Procedure made by the appropriate Chief Metropolitan magistrate of Mumbai, on a private complaint placed before that court by the 6[th] respondent herein against one Biju Joseph alleging that he has committed offences punishable under Sections 114, 406 and 420 of the Indian Penal Code, in relation to a transaction in goods on business of steel and the issuance of cheques. It appears that the 6[th] respondent is the supplier and the said Biju Joseph was a dealer in Kerala. 4. The writ petition is filed by stating that the 7[th] respondent is the Biju Joseph ## **W.P.(C)No.5424 of 2010** **:: 3 ::** against whom the 6[th] respondent had filed the criminal complaint and that under the cover of proceedings by the Maharashtra Police, the premises in question was searched without lawful authority leading to illegal seizure of the goods referred to as taken under a punchnama. The case built up by the petitioner is that he had obtained sale of the entire goods belonging to the 7[th] respondent and had also obtained the leasehold right of the premises from where the 7[th] respondent was conducting the business and that thereafter the petitioner has also attorned to the landlord. He thus proceeds to show that he is in exclusive ownership and possession of the shop room in question and the goods which were searched out and seized. He says that the seizure of the goods was from his custody. 5. We would have chosen to proceed further on the facts contrasting the different aspects, including the cause of action on the basis of which criminal complaint is filed with the different materials that the petitioner has ## **W.P.(C)No.5424 of 2010** ## **:: 4 ::** produced along with the writ petition, having regard to the counter affidavits by the 6[th] respondent and by the 7[th] respondent. But, we deem it appropriate to keep away from expressing anything on the merits of the claim, if any, that the petitioner could agitate before a competent criminal court or civil court, as the case may be, in relation to the case covered by the alleged search and seizure. 6. Therefore, we confine ourselves to the question as to whether there is any illegality or encroachment onto the fundamental rights of the petitioner in the constitutional perspective warranting interference by this court under Article 226 of the Constitution of India. We notice that in terms of Section 451 of the Code of Criminal Procedure, a person who claims right over the goods which are covered by the search and seizure, has appropriate remedy for temporary custody and to get final orders of custody following the conclusion of the trial. That would open up proper remedial measures even to ## **W.P.(C)No.5424 of 2010** ## **:: 5 ::** civil courts to establish claims, if ultimately such course also becomes necessary. 7. Be that as it may, relying on the judgment of the Apex Court in Wazur Chand and Another v. State of H.p. and others {AIR 1954 SC 415}, the petitioner contends that the Maharashtra Police had no locus standi in terms of the Code of Criminal Procedure, to require or even request the Kerala Police to effect search and seizure and still further, that the request of the Maharashtra Police to the Kerala Police was only for assistance to obtain the arrest of the 7[th] respondent. The said precedent laid down by the Apex Court considered the question as to whether the police of Himachal Pradesh could have acted on a request of the Jammu and Kashmir police to conduct a search and seizure. It was on the said premise that the Apex Court laid down that the relevant provisions of the Code of Criminal Procedure did not provide any authority for the Himachal Pradesh Police to act at the asking of the Jammu and Kashmir Police, in the ## **W.P.(C)No.5424 of 2010** ## **:: 6 ::** absence of any judicial order, authorising the search and seizure. In our view, the facts of the case in hand are different and the said procedure does not apply inasmuch as the complaint of the 6[th] respondent to the Chief Metropolitan Magistrate was forwarded under Section 156(3) of the Code of Criminal Procedure to the competent police officer and in terms of Sections 102 and 166(3) of the Code of Criminal Procedure, 1973, the said police officer had every authority to extend the investigation to the geographical limits of the State of Kerala, where the accused was carrying on his business. In that view of the matter, Sections 102 and 166 (3) of the Code of Criminal Procedure provided sufficient room for the said investigating officer to search and seize the goods in relation to which offences are alleged to have been committed. Such authority is included in the powers of the Investigating Officer and it is not a case where the police officer of Maharashtra obtained search and seizure through the Kerala ## **W.P.(C)No.5424 of 2010** **:: 7 ::** Police. Even going by the petitioner's own showing, the search and seizure were conducted by the Maharashtra police and the punchnama is also shown to have been prepared by the Maharashtra police. We indicate this prima facie, only for the purpose of this writ petition and not to preclude the petitioner from agitating his grievances, if any, before the competent criminal and civil courts or even in relation to the correctness or otherwise of the search and seizure. With the aforesaid, we dismiss this writ petition leaving the parties to work out their remedies before the competent court. No costs. **Sd/(THOTTATHIL B.RADHAKRISHNAN) JUDGE** **Sd/(S.S.SATHEESACHANDRAN) JUDGE** _**sk/-**_ ## _**//true copy//**_