Allowed

Subair v. State of Kerala

Kerala HC12 Mar 2019Crl.MC/1417/2019

Case brief

AI extract

What is this about?

This criminal miscellaneous petition involved the petitioner's application for interim release of a seized vehicle under Section 451 Cr.P.C., which was dismissed by the Magistrate fearing prejudice to prosecution. The High Court allowed the petition, setting aside the order, and directed the Magistrate to reconsider with appropriate bonds and security.

What did the court decide?

The impugned order dismissing the application for interim release of the vehicle was set aside, and the matter directed to be reconsidered.

Subair Vs State of Kerala — Execution and Attachment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940

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Crl.MC.No. 1417 of 2019

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CMP 306/2019 of JUDICIAL MAGISTRATE OF FIRST CLASS, MANNARKAD CRIME NO. 887/2018 OF Mannarkkad Police Station, Palakkad

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PETITIONER/PETITIONER:

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SUBAIR, AGED 31 YEARS, S/O HAMZA,PADINJATTIL,KODUVALIKUNDU, ARAKURUSSI,MANNARKKAD,PALAKKAD.

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BY ADV. SRI.T.K.SANDEEP

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RESPONDENT/STATE:

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STATE OF KERALA, REPRESENTED BYTHE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1417 of 2019

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ORDER

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The petitioner herein is the owner of a Goods Carrier bearing Reg. No. KL-10-AV-429. The vehicle was seized while transporting banned tobacco products. On further verification, it was found that the vehicle was being plied by displaying a forged number plate to hoodwink the authorities. What was displayed was the registration number KL-10-AV-42. The vehicle was seized and a crime was registered.

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The petitioner filed an application to secure interim release of the vehicle under Section 451 of the Cr.P.C. The said petition was dismissed by the learned Magistrate holding that the vehicle, if released, would act as a detriment in the effort of the prosecution to prove its case against the accused.

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I have heard the submissions of the learned counsel appearing for the petitioner and the learned Public Prosecutor.

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Having considered the facts and circumstances and after going through the order passed by the learned Magistrate, I am of the considered view that the court below was not justified in rejecting the application on the ground that the

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Crl.MC.No. 1417 of 2019

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release of the vehicle would adversely affect the prosecution case.

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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 order as it thinks fit for the proper custody of such pending conclusion of enquiry or trial. The Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat [AIR 2003 SC 638] had occasion to hold that whatever be the situation, it is of no use to keep such vehicles at the Police Station for a long period. It was held that it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for the return of the said vehicles, if required, at any point of time. 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.

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Crl.MC.No. 1417 of 2019

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For releasing the vehicle, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 of the Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. It would be the function of the Court under Section 451 of the Cr.P.C. to impose any other appropriate condition.

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The aspect of possession and the right of possession alone had to be considered by the court below in the ordinary course. Furthermore, the powers under Section 451 of the Cr.P.C. should be exercised expeditiously and judiciously as it would serve various salutary purposes. The Court below ought to have realized that the owner of the article would suffer because of its remaining unused or by its misappropriation. The Court or the police would not be required to keep the article in safe custody and further, if the possession of article is handed over after preparing a proper mahazar, the same could have been used in evidence instead of its production before the Court during the trial.

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Crl.MC.No. 1417 of 2019

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Having considered the relevant aspects, I am unable

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to sustain the order passed by the learned Magistrate.

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This petition will stand allowed and the impugned order is set aside. The learned Magistrate is directed to consider the matter afresh taking note of the above observations and

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the guidelines issued by the Apex Court in Sunderbhai (supra).

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This petition is disposed of accordingly.

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Sd/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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DSV/12.3.19

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Crl.MC.No. 1417 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE I A TRUE COPY OF THE FIR IN CR.887/2018 OF MANNARKKAD POLICE STATION. ANNEXURE II A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLE NO.KL-10-AV-429. ANNEXURE III A TRUE COPY OF THE ORDER DATED 05.02.2019 IN CMP 306/2019 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT,MANNARKKAD.

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RESPONDENT'S/S EXHIBITS:

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NIL

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//TRUE COPY//

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P.A.TO JUDGE

Subair v. State of Kerala

Case brief

What is this about?

What did the court decide?

Subair v. State of Kerala

Case brief

What is this about?

What did the court decide?

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