Allowed

Shreekanth Kadam Dhondi Ram v. State of Kerala

Kerala HC2 Aug 2022Crl.MC/305/2020

Case brief

AI extract

What is this about?

In Crl.M.C. 305/2020, Justice Ziyad Rahman A.A. allowed the petitioner's challenge to the Magistrate's order dismissing his application under Section 451 Cr.P.C. for interim custody of recovered gold. The Court held that quantity discrepancy due to melting and lack of specific title documents did not preclude custody, granting release subject to a monetary bond.

What did the court decide?

Annexure A2 order set aside; gold seized released to petitioner for interim custody subject to bond of Rs. 20,00,000 with sureties and undertaking to produce gold as required.

Shreekanth Kadam Dhondi Ram Vs State of Kerala — Cheque Dishonour | Kerala HC (2022)

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Crl.M.C.No.305/2020

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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 ZIYAD RAHMAN A.A. TUESDAY, THE 2^ND DAY OF AUGUST 2022 / 11TH SRAVANA, 1944

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CRL.MC NO. 305 OF 2020

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AGAINST THE ORDER/JUDGMENTCMP 5006/2019 OF JUDICIAL MAGISTRATE

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OF FIRST CLASS ,THALASSERY

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PETITIONER:

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SHREEKANTH KADAM DHONDI RAM,

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AGED 39 YEARS,

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BHUVANESHWERI NIVAS, NEAR TOWN BANK AUDITORIUM, THIRUVANGAD, THALASSERY, KANNUR, PIN-670 103.

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BY ADVS. E.HARIDAS P.V.MIDHUN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-683 518.

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2 STATION HOUSE OFFICER, THALESSERY POLICE STATION, THALASSERY, KANNUR-670 002.

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SRI.M.P PRASHANTH -SR.PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.305/2020

O R D E R

The petitioner is the de facto complainant in Crime No.621 of 2019 of Thalassery Police Station. The grievance highlighted by the petitioner in this Crl.MC is against the order passed by the Judicial First Class Magistrate Court, Thalassery, as per Annexure-A2.

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The crime mentioned above was registered based on the information submitted by the petitioner against the accused for the offences punishable under Sections 120(B), 392 read with Section 34 IPC. The case is that on 06.07.2019, the accused persons have forcibly taken 624.420 gms of gold from the petitioner, a goldsmith by profession. Later, as part of the investigation, the police arrested the accused persons and recovered the gold weighing 555.80 gms. Thereupon, C.M.P.No.5006 of 2019 was submitted by the petitioner before the learned Magistrate seeking the release of the aforesaid articles under Section 451 Cr.P.C. However, the said application was dismissed as per Annexure-2 and challenging the same, this Crl.M.C. is filed.

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Heard Sri.Midhun P.V., learned counsel for the petitioner and Sri.M.P.Prasanth, learned Public Prosecutor for the State.

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It is pointed out by the learned counsel for the petitioner that the reasons stated by the learned Magistrate for dismissing the

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Crl.M.C.No.305/2020

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application submitted by the petitioner are not legally sustainable. On perusal of the records and considering the arguments from either side, I find some force in the arguments put forward by the learned counsel for the petitioner. It is discernible that, in Annexure-A2 order, the learned Magistrate dismissed the application, mainly on the ground that even though the case of the petitioner was that gold weighing 624.420 gms were seized from his possession, the recovery effected was only 555.80 gms. The difference in the quantity was highlighted as a discrepancy by the learned Magistrate, and according to the learned Magistrate, it stood in the way of releasing the articles to the petitioner. It is also observed in the said order that the petitioner has not produced any document to show that the petitioner is the sole person entitled to take possession of the gold bar produced before the court.

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After considering the reasons stated by the learned Magistrate, I am of the view that said reasons are not sustainable. As far as the discrepancy in the quantity of the gold is concerned, the fact that the Police could recover a lesser quantity can never be an impediment for the de facto complainant to claim possession thereof. The difference can be due to various reasons, and the petitioner cannot be held responsible for the same. It is also to be

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Crl.M.C.No.305/2020

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noted in this regard that the gold recovered was not in its original form but it was in the form of gold ingots, which indicates that the gold was melted subsequently by the accused persons. This also could be a reason for the recovery of lesser quantity, to some extent.

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Another observation of the learned Magistrate is that the petitioner has not produced any documents to indicate that he is the sole person entitled to take possession of the gold bar. Admittedly, the crime was registered based on the information furnished by the petitioner. As of now, no other person has come forward claiming right over the gold in question. As far as the order under Section 451 Cr.P.C. is concerned, it pertains to interim custody of the articles alone. The only question to be considered in an application under Section 451 Cr.P.C. is whether the person who applies for the same is competent to be entrusted with the article to preserve the same during the investigation. In this case, I do not find any reason to hold that the petitioner is not a fit person who can be entrusted with the aforesaid articles. However, proper conditions have to be imposed to ensure the production of the same before the court as and when necessary.

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In the result, this Crl.M.C. is allowed, and the AnnexureA2 order is set aside. The gold seized by the Police shall be released

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Crl.M.C.No.305/2020

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to the petitioner for interim custody subject to the following conditions:

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1. The petitioner shall execute a bond for Rs.20,00,000/with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate.

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1. The petitioner shall undertake before the learned Magistrate that he shall produce the gold as and when required.

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1. The petitioner shall not sell or pledge the gold without obtaining prior permission from the learned Magistrate.

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1. Before releasing the articles, the photographs of the gold shall be taken, and the same shall be retained as part of the case records.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

DG/4.8.22

Crl.M.C.No.305/2020

APPENDIX OF CRL.MC 305/2020

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PETITIONER ANNEXURES

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ANNEXURE A1 THE ISSUE VOUCHER ISSUED BY THE MAHARANI JEWELRY DATED 4.7.2019 AND 5.7.2019 IN THE GOLD WHICH WAS ROBBED AND LATER ON SIZED BY THE POLICE ANNEXURE A2 THE ORDER IN CMP NO 5006/2019 DATED 22.10.2019

Shreekanth Kadam Dhondi Ram v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shreekanth Kadam Dhondi Ram v. State of Kerala

Case brief

What is this about?

What did the court decide?

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