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2022 Supreme(Online)(KER) 47852
HIGH COURT OF KERALA
Ziyad Rahman A. A, J
PANKAJAKSHAN – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC/5304/2022
S.RAJEEV, V.VINAY, M.S.ANEER, PRERITH PHILIP JOSEPH, SARATH K.P., ANILKUMAR, C.R.
An interim custody order is provisional, ensuring the article's preservation pending trial, without establishing absolute ownership rights.
Headnote:
Money Lending - Criminal Procedure - Kerala Money Lenders Act, 1958, Section 17; Kerala Prohibition of Charging Exorbitant Interest Act, 2012, Section 3, 9(1)(a) - This case involved the interim custody of seized gold ornaments and cash from an accused under money lending laws, examining the validity of inspections and licenses.
Fact of the Case:
The petitioner faced charges of conducting money lending without a license, and sought custody of seized gold ornaments, claiming he held a valid license. The police conducted a search based on allegations of illegal money lending.
Finding of the Court:
The court found no illegality in the search conducted by the police and determined that interim custody of the gold ornaments was appropriate, as the petitioner was the rightful possessor and other claims were absent. Conditions were placed on the release.
Issues: The primary issue was whether the petitioner should be granted interim custody of the seized gold ornaments amidst claims of illegal money lending.
Ratio Decidendi: The court relied on established principles regarding interim custody outlined in previous judgments, asserting that custody should be granted to the rightful possessor until the trial concludes.
Final Decision: The court set aside the Magistrate's order and directed the release of the seized articles to the petitioner under specified conditions.
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.
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, 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 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. InSunderbhai 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 inSuresh Serve v. State of Kerala [ 2020 (3) KLT 395 ], specifically
