Interim custody conditions on non-proceeds of crime property deemed unjustifiable under precedent law.

ORDER

The petitioner is the authorised officer of a private Company, at whose instance Crime No.20/2022 was registered by the Malappuram Police Station, alleging the commission of the offences punishable under Section 381 and 201 r/w Section 34 of the Indian Penal Code .

2. Between 29.07.2021 and 01.10.2021, the accused persons committed theft of 216.37 grams of gold ornaments kept in a cover containing 321.43 grams. The remaining gold ornaments weighing 105.06 grams of gold were retained in the locker. However, the gold ornaments stolen by the accused persons were not recovered, but the Investigating Officer seized 105.06 grams of gold that was kept in the locker. Claiming interim custody of the 105.06 grams of gold, the petitioner filed CMP No.47/2025 before the Court of the Judicial First Class Magistrate, Malappuram. By the impugned Annexure 2 order, the learned Magistrate allowed the application subject to six conditions. As per condition No.3, the petitioner is directed to produce the gold ornaments as and when required without any modification, and by condition No.6, the petitioner is directed not to sell or transfer the gold ornaments. Condition Nos. 3 and 6 are unreasonable and unjustifiable. The learned Magistrate has lost sight of the fact that 105.06 grams of gold ornaments are not the proceeds of the crime. The accused persons have only committed theft of 216.37 grams of gold ornaments which has not been recovered till date. Therefore, the imposition of condition Nos. 3 and 6 in Annexure 2 order are unwarranted. Hence, condition Nos.

3 and 6 in Annexure 2 order may be quashed.

3. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. A reading of the allegations in Annexure 1 final report substantiate that the accused persons have stolen 216.37 grams of gold ornaments from a packet containing

321.43 grams. Admittedly, the Investigating Officer has not recovered the said quantity of gold ornaments from the accused persons. The gold ornaments that have been seized by the Investigating Officer is 105.06 grams, which is not a part of the proceeds of the crime. Therefore, there was no necessity for the Investigating Officer to have seized the said gold ornaments, which is not a stolen property, instead it is a property belonging to the petitioner Company. Taking into consideration the above aspect, I am of the definite view that condition Nos. 3 and 6 in Annexure 2 order is unsustainable in law and is liable to be set aside. Thus, I am satisfied this is a fit case to exercise the inherent powers of this Court under Section 528 of the BNSS .

In the aforesaid circumstances, especially taking into consideration the fact that the gold ornaments that was seized by the Investigating Officer is not the proceeds of the crime, I am of the definite view that the petitioner is entitled to succeed in the Crl.M.C. Consequently, I delete condition Nos. 3 and 6 in Annexure 2 order, but direct the petitioner to comply with condition Nos. 1,2, 4 and 5.

Sd/-