PANKAJAKSHAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944 ``` ``` CRL.MC NO. 5304 OF 2022 ``` ``` CRL.M.P. NO.1165/2022 IN CRIME NO.160/2022 OF VADAKKANCHERY ``` ## **`POLICE STATION`** ## **`PETITIONER/ACCUSED:`** ``` PANKAJAKSHAN AGED 52 YEARS S/O. KURIACHAN, POKKATH HOUSE, POONIPADAM, KIZHANCHERRY, ALATHUR,PALAKKAD , PIN – 678541 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ANILKUMAR C.R. ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 (CRIME 160/2022 OF VADAKANCHERRY POLICE STATION, PALAKKAD DISTRICT - 678683), PIN – 682031 BY ADV ``` ``` ADV C S HRITHWIK- PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5304 OF 2022 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the accused in Crime No.160/2022 of Vadakkanchery Police Station, which was registered against him for the offences punishable under Section 17 of Kerala Money Lenders Act, 1958 and Section 3 and 9 (1)(a) of Kerala Prohibition of Charging Exorbitant Interest Act, 2012. The aforesaid crime was registered based on an inspection conducted in the residential premises of the petitioner on 21.02.2022 by the Police upon getting information that the money lending business is being carried on therein without any license. In the said inspection, certain gold ornaments and documents indicating the conduct of money lending business were seized by the Police. The crime was registered accordingly and the investigation is now in progress. 2. The petitioner submitted Crl.M.P. No.1165/2022 before the learned Magistrate seeking interim custody of the gold ornaments seized from his possession. The aforesaid application was dismissed by the learned Magistrate as per Annexure I and this Crl.M.C. is filed challenging the aforesaid order. ``` CRL.MC NO. 5304 OF 2022 ``` ``` 3 ``` 3. Heard Sri.Vinay V., learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, learned Public Prosecutor appearing for the State 4. The contention of the learned counsel for the petitioner is that the dismissal of the application submitted by the petitioner was not proper and without any valid reasons. The learned counsel challenges the said order, mainly contending that the petitioner had a license to run the money lending business and he places reliance upon Annexure II to substantiate the same. It was also pointed out that the inspection conducted on the premises was not with proper authority, as the competent person for the same is the Inspector appointed as per Section 10 of Kerala Money Lenders Act, 1958 and not the Police. 5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. It is pointed out that, in Annexure II license, it was specifically mentioned that the business of money lending could be conducted by the petitioner only in the premises mentioned in the said license, whereas the search was conducted, ``` CRL.MC NO. 5304 OF 2022 ``` ``` 4 ``` and the articles were seized from the residence of the petitioner herein which was not covered as per the Annexure-II license. The learned Public Prosecutor also brought to my attention, condition No.4 of the license, wherein a specific prohibition is contemplated for keeping the accounts and registers of the transactions in any place outside the area where the activity of money lending is permitted as per the license. In such circumstances, it is pointed out that the order passed by the learned Magistrate is reasonable and probable; hence, no interference is warranted thereon. 6. I have gone through the records and considered the arguments raised from either side. It is true that the contentions raised by the petitioner concerning the sustainability of the search are not a matter which can be considered at this stage. Prima facie, I find no illegality in the aforesaid search. However, the only question that is to be considered in this case is whether the petitioner is to be granted interim custody of the gold ornaments. It is not in dispute that the gold ornaments were seized from the possession of the petitioner. It is the case of the prosecution that he ``` CRL.MC NO. 5304 OF 2022 ``` ``` 5 ``` procured the aforesaid gold as part of the money lending business that he was conducting without any proper license. However, the fact remains that the articles were seized from his possession and as of now, no other persons have come forward claiming any rights over the same. In **Sunderbhai Ambalal Desai v. State of Gujarat [2003(2) KLT 1089]** the Hon’ble Supreme Court clearly stipulated the guidelines for considering the application for interim custody of the articles seized by the Police as part of the investigation, particularly, in respect of the vehicles and valuable articles. A Division Bench of this Court in **Suresh Serve v. State of Kerala** [2020 (3) KLT 395], specifically dealt with the manner in which the question of release of the gold ornaments has to be considered under Section 451 of Cr.P.C. While taking into account the principles laid down in those decisions, I find it proper that the valuable articles be returned to the party who is most eligible to keep the same in their possession until the trial is completed. On perusal of the records and in the absence of any other claimants for ``` CRL.MC NO. 5304 OF 2022 ``` ``` 6 ``` the aforesaid articles, I am of the view that the interim custody of the articles can be entrusted with the petitioner herein, subject to certain conditions. This is mainly because the release of the articles under Section 451 is a provisional arrangement to preserve the article till the trial of the said case is over. Under no circumstances the release of the said articles would create any absolute title over the same to the person to whom it is granted. It is discernible from Annexure III order that the aforesaid aspects were not considered by the learned Magistrate. Therefore, interference has to be made in the said order. In the result, Annexure III is set aside and the Judicial First Class Magistrate Court I, Alathur is directed to release the articles – gold ornaments and cash Rs.2,90,000/- (Rupees two lakhs and ninety thousand only) to the petitioner subject to the following conditions: - i. The petitioner shall furnish security by producing the original title deed of immovable property/properties before the learned Magistrate and execute a bond with two ``` CRL.MC NO. 5304 OF 2022 ``` ``` 7 ``` solvent sureties to the satisfaction of the learned Magistrate for the amount equal to the value of the gold which is sought to be released in his favour. The value of the gold has to be ascertained by the learned Magistrate upon examining the relevant documents. - ii. The petitioner shall undertake before the court that he shall not dispose of the gold ornaments without getting prior permission from the trial court. - iii. The petitioner shall undertake before the court that he shall produce the gold ornaments and deposit the cash before the court as and when required. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` CRL.MC NO. 5304 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 5304/2022`** ``` PETITIONER ANNEXURES Annexure1A COPY OF THE FIR IN CRIME NO.160/2022 REGISTERED BY VADAKANCHERY POLICE STATION Annexure2A COPY OF THE MONEY LENDING LICENSE DATED 07-05-2021 ISSUED BY COMMERCIAL TAX DEPARTMENT, GOVERNMENT OF KERALA, Annexure3A CERTIFIED COPY OF THE ORDER DATED 02-06-2022 BY COURT OF THE JFCM-I, ALATHUR, IN CMP NO. 1165/2022 IN CRIME NO.160/2022 OF VADAKANCHERY POLICE STATION ```