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2023 Supreme(Online)(KER) 9952
HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
VINAYAKUMAR KR – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6818 2023
V.VISAL AJAYAN, RAJESH KUMAR R.
The court established that properties seized as evidence should be released to original owners as soon as permissible, adhering to statutory provisions to prevent loss in value.
Headnote:
Custody - Vehicle Release - Cr.P.C. Section 451, Abkari Act Section 53B - The court interpreted Section 451 of the Cr.P.C. allowing for interim custody of property during trials, emphasizing the importance of timely release to prevent deterioration, and directed adherence to guidelines from precedent case law.
Fact of the Case:
A petitioner challenged the rejection of his application for the release of a vehicle allegedly used in Abkari Act violations. The vehicle was seized over two years earlier, and the original owner had passed away without retrieving it due to onerous conditions.
Finding of the Court:
The court found the Sessions Judge unjustified in rejecting the application, citing the need for the vehicle's timely release based on Section 451 of the Cr.P.C., and non-consideration of the original owner's condition and death.
Issues: Whether the Sessions Judge was justified in rejecting the vehicle release application based on ownership and possession aspects under Cr.P.C. and Abkari Act.
Ratio Decidendi: The court emphasized that the maintenance of property in custody should not exceed necessity, and the original owner's right to possession should be prioritized, particularly considering the vehicle's condition.
Final Decision: The petition is allowed, and the order rejecting the release of the vehicle is set aside.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TH FRIDAY, THE 25 DAY OF AUGUST 2023 / 3RD BHADRA, 1945 CRL.MC NO. 6818 OF 2023 AGAINST THE ORDER/JUDGMENT CMP 1734/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KALPETTA CMP 1065/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KALPETTA PETITIONER/CLAIM PETITIONER :- VINAYAKUMAR K.R, AGED 21 YEARS S/O LATE.CHENNAJAMMA @ CHENJAMMA, KEBBEPURA VILLAGE HUNDIPURA POST, GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT KARNATAKA, PIN - 571111 BY ADVS.
V.VISAL AJAYAN RAJESH KUMAR R.
RESPONDENT/COMPLAINANT/STATE :-
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 SMT. NEEMA T V, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
25.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
This petition is filed challenging the order dated 05.07.2023 in Crl.M.P.No.1734 of 2023 on the file of the Additional Sessions Judge-II, Kalpetta. By the said order, the application filed by the petitioner herein for the release of the Mahindra Pickup Jeep bearing Registration No.K.A-10A-4110 invoking Section 457 of the Cr.P.C was rejected by the learned Sessions Judge.
2. The prosecution allegation is that the accused transported 50 bottles of Old Admiral VSOP brandy in the above vehicle and violated the provisions of the Abkari Act .
3. In her capacity as the registered owner of the vehicle, one Chenjamma approached the learned Magistrate and filed an application seeking interim custody of the vehicle.
4. By order dated 26.10.2021 in C.M.P.No.1065 of 2021, the learned Magistrate allowed the application by following the law laid down in Nikhil v. Deputy Excise Commissioner , Kannur ( 2016 (5) KHC 215 ). Among other conditions, the owner of the vehicle was ordered to execute a bond by way of cash security for the value of Rs.6,30,000/-. Due to the onerous nature of the conditions imposed, Chenchamma did not deposit the amount and get the vehicle released. For the past two years or more, the vehicle is lying exposed to sun and rain.
5. While so, Chenjamma passed away. The petitioner herein is her son, and he is stated to be the person entitled to possession of the car
6. He approached this Court seeking directions, and this Court, by Annexure-A4 order, issued directions to the learned Sessions Judge to consider the application and take a decision. The Learned Sessions Judge, holding that the petitioner has not been able to explain how the vehicle happened to come into the possession of the accused, rejected the application.
7. I have heard the submissions advanced by the learned counsel appearing for the petitioner and the learned public prosecutor.
8. Having considered the facts and circumstances and after going through the order passed by the learned Sessions Judge, I am of the considered view that the court below was not justified in rejecting the application.
9. Section 451 of the Cr.P.C. empowers the criminal court to make orders for interim custody of the property produced before it during trial and inquiry. When the property is produced before the criminal court, regard being had to nature of the property so produced, the criminal court has a discretion to make such an order as it thinks fit for the proper custody of such pending conclusion of enquiry or trial. Where the property, which has been the subject matter of an offence, 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. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases.
10. For releasing the vehicle, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to pr
