Thampi v. State of Kerala

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE26[TH]DAYOFJUNE2023/5THASHADHA,1945 CRL.MCNO.7OF2021 ``` ``` AGAINSTC.M.P.NO.5441/2011INLPNO.36/2011INCCNO.242/2020 OFJUDICIALMAGISTRATEOFFIRSTCLASS-II(FORESTOFFENCES), PUNALUR ``` ## **`PETITIONER/PETITIONER:`** ``` THAMPI AGED61YEARS S/OVELUPPILLAI,TC41/325(1), MANAKKADUVILLAGE,THIRUVANANTHAPURAMTALUK, FROMTHAMPIJEWELLERY,TC37/260,APPUNIVAS, THIRUVANANTHAPURAMDISTRICT ``` ``` BYADVGEORGESEBASTIAN ``` ## **`RESPONDENT/RESPONDENT :`** ``` THESTATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM,PIN-682031. ``` ``` SRI.TRRENJITH,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 26.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.7 of 2021 2 ## **ORDER** The petitioner herein was examined as PW4 in CC No.242/2020 on the files of the Judicial Magistrate of First Class-II (Forest Offences), Punalur. The aforesaid crime has arisen from Crime No.166/1994 of the Thenmala Police station registered inter alia under Sections 457, 380 and 461 read with Section 34 of the IPC. 2. The crux of the prosecution allegation is that in the dead of night on 09.08.1994, the accused trespassed into the house of certain Mohammedali (CW1) and committed theft of gold ornaments worth Rs.27,000/-, currency notes, wristwatches, blouse pieces, and a shirt. 3. After completion of the investigation, final report was laid before the learned magistrate arraying 5 persons as accused. The 4th accused alone appeared before the learned Magistrate to face trial. The case against the rest of the accused was split up, and the case was proceeded with. By judgment dated 28.10.2010 in C.C. No.73/2001, the 1st accused was acquitted of all charges by holding that the prosecution had failed to prove that the offence was committed by the accused. Holding so, the 1st accused was acquitted of all Crl.M.C No.7 of 2021 3 charges under Section 248(1) of the Code. 4. The petitioner states that the police seized four gold ingots having a total weight of 49.500 grams from the jewelry shop owned by the petitioner herein. In view of the findings arrived at by the learned Magistrate that the entire case is doubtful, the petitioner approached the learned Magistrate and filed an application to get interim custody of the gold ingots. However, the learned Magistrate dismissed the said application on the ground that the case against the rest of the accused was pending. As the accused were absconding and there was no likelihood of the matter being disposed of, the petitioner filed a fresh application before the learned Magistrate. Annexure-D report was submitted by the investigating officer wherein it was stated that the police have no objection to entrusting the custody of the gold ornaments to the petitioner. However, the learned Magistrate was of the view that in view of the dismissal of the earlier application, the 2nd application cannot be entertained. Being aggrieved, a revision petition was filed before the Court of Sessions along with an application for condonation of delay in filing the said application. The learned Sessions Judge refused to condone the delay, and consequently, the revision petition was dismissed. It is in the afore circumstances that the petitioner is before this Court seeking directions. Crl.M.C No.7 of 2021 4 5. Sri. George Sebastian, the learned counsel, submits that there is no justification on the part of the learned Magistrate in rejecting his request. According to the learned counsel, the Supreme Court in **Basavva Kom Dyamogouda Patil v. State of Mysore** [1977 (4) SCC 358] held that the object and scheme of the various provisions of the Code is that where the property which has been the subject matter of an offense is seized by the police, it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary. Reliance is also placed on the law laid down in **Sunderbhai Ambalal Desai v. State of Gujarat** , [2002 (10) SCC 283], and it is argued that if materials on record disclose that the articles belong to the person from whose establishment the goods have been seized, necessary orders can be issued entrusting the seized articles to the person concerned by preparing a mahazar and by taking photographs and other safeguards. Reliance is also placed on the law laid down by a learned Single Judge of this Court in **Nagarajan v. State of Kerala** , [2019 (5) KHC 666] and it is submitted that this Court had permitted the de facto complainant in the said case to sell the ornaments by imposing appropriate conditions. There is no reason why the learned Magistrate refused to take a sympathetic view in favor of the petitioner, in view of the acquittal of the 1st accused, Crl.M.C No.7 of 2021 5 contends the learned counsel. 6. The learned Public Prosecutor submitted that the investigating officer had filed a statement stating that he has no objection in releasing the gold in interim custody. 7. In **Nagarajan** (supra), this Court has lucidly explained the principles in an identical fact scenario. It would be profitable to refer to paragraph Nos.14 to 18 of the judgment: 14. Section 451 of the Code permits sale of property, which is subject to speedy and natural decay, pending the conclusion of the inquiry or trial. Can property, which is not subject to speedy and natural decay, be permitted to be sold before the conclusion of the trial of the case? Two things are very important. The interest of the owner of the property shall be protected. At the same time, prosecution case cannot be jeopardized on account of the absence of physical evidence during the trial. 15. Section 451 of the Code states that, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. The expression “if it is otherwise expedient so to do’’ in S.451 of the Code empowers the Court to dispose of the property during enquiry or trial, if the situation so warrants. The provision empowers the Court to sell or dispose of even a property, which is not subject to speedy and natural decay, if the court is satisfied that it is expedient to do so. The expression “if it is otherwise expedient so to do’’ confers a Crl.M.C No.7 of 2021 6 discretion upon the court to order sale of a property other than a property which is subject to speedy and natural decay. But, the discretion has to be exercised judiciously and depending upon the facts and circumstances of each case. 16. In this context, it is advantageous to refer to the observations made by the Karnataka High Court, in K.W. Ganapathy v. State of Karnataka (2002 (2) KLT OnLine 1011 (Karnt.) = 2002 Cri.L.J 3867), which read as follows: “6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments. 7. To illustrate, a situation one X loses gold jewellery by theft. The police Crl.M.C No.7 of 2021 7 successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non-alienation from exercise of right of ownership for unreasonable length of time would be too harsh and one sided, and a nonchalant approach towards the victims of crime. It may be that X requires the gold jewellery for the purpose of the marriage of his daughter or may be that he may requires funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non-alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non-alienation”. 17. The production of property, which forms physical evidence, may become necessary during the trial of the case. But, it is not necessary that the original property inevitably has to be preserved and produced. Reception of secondary evidence is permissible, as held in Sunderbhai (supra). Instead of producing the original property, production of the photographs of the property, depicting all features of the same, would be sufficient. Identification of the photographs of the property, along with proof of its particulars, in the form of mahazar giving clear description of the nature, dimensions and features of the same, serves as a substitute for identification of the real property during the trial of the case. In Sunderbhai (supra), the Apex Court has held that taking photographs of the material object and obtaining the signature of the complainant and also of the Crl.M.C No.7 of 2021 8 accused thereon and keeping them in the case records to be exhibited at the time of trial, would serve the purpose. Thus, the interest of the prosecution, the interest of the owner of the property, the need of the prosecution to produce the property as evidence during trial and the right of the accused would be protected. 18. At the same time, sale of property, which is not subject to speedy and natural decay, shall not be permitted or ordered as a matter of course. It is necessary that the court shall be satisfied that it is expedient to sell the property in the given set of facts and circumstances. It is only when retention of a property with its owner, without the liberty of alienation, would cause undue hardship to him, that sale of it can be permitted or ordered. 8. In the case on hand, I find from the judgment rendered by the learned Magistrate that it was based on the alleged confession statement of the accused that 8 gold bangles and a gold ring were sold to Thampi Jewellery that the gold ingots were recovered from the shop of the petitioner herein. When the petitioner was examined before the court, he stated that the police had come to his shop and had taken two gold ingots which, according to him, is his own property and not sold to him by the accused. The learned Magistrate came to the conclusion that the prosecution has failed to prove the recovery of gold ornaments alleged to be made from Thampi Jewellery due to want of evidence. The earlier application filed by the petitioner was rejected on Crl.M.C No.7 of 2021 9 the ground that without concluding the trial against the rest of the accused, it would not be feasible to grant interim custody to the petitioner herein. However, though the crime is of the year 1994, the police have not secured the presence of absconding accused even after a lapse of two decades. It would be unduly harsh to direct the petitioner to wait till the absconding accused is brought to book in order to entertain his application for interim custody of the gold. I am of the considered opinion that necessary directions can be issued to the learned Magistrate to reconsider the application and pass fresh orders in the light of the precedents above. Resultantly, Annexure-C and E orders are set aside. The learned Magistrate is directed to reconsider the matter and pass fresh orders in accordance with the law, in the light of the directions above. Orders shall be passed within a period of four weeks from the date of production of a copy of this order. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.7 of 2021 10 ## **`APPENDIX OF CRL.MC 7/2021`** |`PETITIONER `|`ANNEXURES `|`:`| |---|---|---| |`ANNEXURE-A`||`A TRUE COPY OF THE JUDGMENT DATED 28/10/2010`| |||`IN CC NO.73/2001 OF THE JUDICIAL FIRST CLASS`| |||`MAGISTRATE COURT II (FOREST OFFENCES),`| |||`PUNALUR.`| |`ANNEXURE-B`||`A TRUE COPY OF THE PROPERTY LIST DATED`| |||`20.01.1995 IN CRIME NO.166/1994 OF THENMALA`| |||`POLICE STATION.`| |`ANNEXURE-C`||`A TRUE COPY OF THE ORDER DATED 08/08/2011 IN`| |||`CMP NO.5441/2011 IN CC NO.242/2010 OF THE`| |||`JUDICIAL FIRST CLASS MAGISTRATE COURT II`| |||`(FOREST OFFENCES), PUNALUR.`| |`ANNEXURE-D`||`A TRUE COPY OF THE REPORT DATED 30.06.2015`| |||`SUBMITTED BY THE STATION HOUSE OFFICER,`| |||`THENMALA.`| |`ANNEXURE-E`||`A TRUE COPY OF THE ORDER DATED 07/07/2015 IN`| |||`CMP NO.3908/2015 OF THE JUDICIAL FIRST CLASS`| |||`MAGISTRATE COURT II (FOREST OFFENCES) PUNALUR.`| |`ANNEXURE-F`||`A TRUE COPY OF THE UNNUMBERED CRL.R.P FILED BY`| |||`THE PETITIONER BEFORE THE SESSIONS COURT,`| |||`KOLLAM.`| |`ANNEXURE-G`||`A TRUE COPY OF THE PETITION TO CONDONE THE`| |||`DELAY (CRL.M.P. NO.656/2017 IN UNNUMBERED CRL.`| |||`R.P. OF THE SESSIONS COURT, KOLLAM).`| |`ANNEXURE-H`||`A TRUE COPY OF THE ORDER DATED 14.02.2018 IN`| |||`(CRL.M.P NO.656/2017 IN UNNUMBERED CRL.R.P. OF`| |||`THE SESSIONS COURT, KOLLAM).`|