SUSEELA B v. SHO, ADOOR POLICE STATION & STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933** **Crl.Rev.Pet.No. 2070 of 2011()** **-----------------------------CRMP.4360/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, ADOOR** **....................** ## **REVN. PETITIONER(S):** **---------------------** **SUSEELA B, W/O.RAMACHANDRAN, JAYESH BHAVAN, THENGAMOM PO, PALLICKAL VILLAGE ADOOR TALUK,PATHANAMTHITTA DISTRICT, KERALA STATE.** **BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU** ## **RESPONDENT(S)/RESPONDENTS:** **---------------** ## **1. SHO, ADOOR POLICE STATION, ADOOR 691 523** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM** **PUBLIC PROSECUTOR SMT.REKHA C. NAIR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON 19/09/2011 PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NO.2070 OF 2011 ----------------------------------Dated this the 19[th] day of September, 2011** ## **O R D E R** Petitioner in the above revision has filed an application Crl.M.P.No.4360 of 2011 in crime No.451 of 2011 of Adoor police station for release of a vehicle, which was seized by the Sub Inspector of Police, Adoor police station, in connection with the aforesaid crime registered for the offence punishable under Section 55(a) of the Kerala Abkari Act, for short, the 'Act'. The learned Magistrate dismissed that application and, hence, this revision. 2. The aforesaid crime was registered suo motu by the Sub Inspector of Police, Adoor after search and seizure proceeded on reliable information that fifteen cannas of spirit, were kept unauthorisedly in a building near Choorakode. The investigation of the crime disclosed that the contraband seized, stored in the above building, was transported in a motor vehicle **Crl.R.P.NO.2070/2011** **2** bearing Registration No.KL-26-A-7997. That vehicle was seized into custody, and a report was accordingly filed before the court. The aforesaid crime was registered against two accused, who are alleged to have taken out the building on rent and were involved in the transportation of the contraband in the motor vehicle, to the building, from where it was recovered. 3. Petitioner is the mother of the 2[nd] accused, namely, Rajesh. She moved an application for interim custody of the motor vehicle seized claiming that she is its registered owner. The vehicle is not involved in the transportation of the spirit seized nor in the commission of any criminal offence, was her case. The vehicle was being used by her husband and it was taken into custody by the police from a house of her relative at Chengannur, according to her. Release of the vehicle on interim custody applied for by the petitioner was objected to by the investigating agency contending that the statement recorded from the 1[st] accused by the Tamil Nadu police clearly spelt out that the contraband seized in the present case was transported **Crl.R.P.NO.2070/2011** **3** in the aforesaid motor vehicle. The vehicle is involved in the commission of the offence and it cannot be released to the petitioner and, further, it is required for the purpose of fair investigation of the crime was the objection raised, apart from contending that the 2[nd] accused Rajesh, the son of the petitioner, still remains at large and yet to be apprehended. The learned Magistrate upholding such objections, dismissed the application for interim custody of the vehicle. 4. Before me, the learned counsel for the petitioner contended that the vehicle is now lying exposed to sun and rain, and the only person who would suffer by damage to such vehicle is the petitioner, its registered owner. Number plates recovered from the premises of the house from where the contraband was allegedly seized, as noted by the documents prepared by the police, indicated that the vehicle has a different registration number and not the one under the registered ownership of the petitioner, which had been subsequently seized by the police, according to the counsel. The vehicle belonging to the **Crl.R.P.NO.2070/2011** **4** petitioner is not involved in the commission of any abkari offence, and solely for the reason that her son, who was implicated as an accused, remains at large, her vehicle had been seized by the police, submits the counsel. 5. The learned Public prosecutor, on the other hand, contended that the investigation so far conducted has revealed that the contraband seized had been transported in the aforesaid motor vehicle seized and taken into custody by the police, and the petitioner is not entitled to have interim custody of the vehicle which is involved in the abkari offence. 6. Case diary has been produced for my perusal. Perusing the order passed by the learned Magistrate, it is seen that the application for interim custody of the vehicle moved by the petitioner had been dismissed since the investigation is only in a preliminary stage and that the apprehension raised by the investigating agency that such vehicle may be used against the commission of the abkari offence and also the application moved **Crl.R.P.NO.2070/2011** **5** by the petitioner was not proper. The release of the vehicle, at this stage, may cause tampering of the evidence is also the view expressed by the learned Magistrate. What is seized and taken into custody is a motor vehicle, which is allegedly involved in an abkari offence, transporting of spirit illicitly by the son of the petitioner. If the vehicle is kept in sun and rain, no doubt, its value and utility will be reduced considerably and naturally it would be rendered valueless within a short time. If at all the retention of the vehicle is required for some more time for the purpose of investigation, appropriate directions can be given by the court. Petitioner is shown to be the registered owner of the vehicle, which is not disputed. Of course, if the vehicle is later found involved in the commission of the abkari offence, as per the provisions of the Act, the vehicle can also be confiscated. But that circumstance is not sufficient to decline interim custody of the vehicle imposing adequate conditions guaranteeing its production if necessary for the purpose of investigation or trial and, ultimately, in the event of confiscation of the vehicle in case its involvement in the commission of the offence is established. **Crl.R.P.NO.2070/2011** **6** The learned Magistrate can insist for production of the valuation certificate of the vehicle from the competent authority and also bank guarantee or such other security as may be found necessary for releasing the vehicle on interim custody with other conditions essential for facilitating the investigation of the crime, production at the stage of trial or in the event of order of confiscation, if any, passed. The directions given by the apex court so far as the release of the motor vehicle involved in criminal cases, in **Sundarbhai Ambalal Desai v. State of Gujarat (2003 (2) KLT 1089 (SC))** should have been followed by the learned Magistrate in considering the application moved for interim custody of the vehicle. 7. Setting aside the impugned order, the learned Magistrate is directed to consider the application for interim custody moved by the petitioner taking note of the observations made above, and in accordance with law. The above application shall be disposed as expeditiously as possible, at any rate, within a period of four weeks form the date of receipt of a copy of this **Crl.R.P.NO.2070/2011 7** order. Revision is disposed of as indicted above. **S.S.SATHEESACHANDRAN JUDGE** prp **Crl.R.P.NO.2070/2011 8**