Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE27H DAY OF SEPTEMBER20135TH ASWINA, 1935 Crl.Rev.Pet.No. 1814 of 2013 () -------------------------------- CRL.MP. NO.3363/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR. CRIME NO. 878/2013 OF CHITTUR POLICE STATION. .......... REVISION PETITIONER/PETITIONER: ------------------------------------------------------ JOBBY, S/O.ANTONY, VELLANIKKARA MAIN ROAD, IRINJALAKUDA. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE. ADVS. SRI.M.REVIKRISHNAN, SRI.P.M.RAFIQ. RESPONDENT/RESPONDENT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.LIJU V.STEPHEN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON2709-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.Rev.Pet.No. 1814 of 2013 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A COPY OF THE PARTNERSHIP DEED OF ANTONY'S GOLD DATED0104/2011. ANNEXURE B COPY OF THE SALESMAN PERMIT DATED0104/2011 ISSUED BY THE COMMERCIAL TAX OFFICER, IRINJALAKUDA. ANNEXURE C COPY OF THE F.I.R. IN CRIME NO.878/2013 OF CHITTUR POLICE STATION. ANNEXURE D COPY OF THE STOCK REGISTER FOR ANTONY'S GOLD. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.S.TO JUDGE. rs. K.HARILAL, J.
----------------- CRL.R.P.NO.1814 OF2013------------------------------- Dated this the 27th day of September, 2013 ORDER
The Revision petitioner is the petitioner in CMP No.3363 of 2013 on the files of Judicial First Class Magistrate Court, Chittur. The above petition was filed under Section 451 of the Code of Criminal Procedure (for short Cr.P.C). The accused in the above crime is a sales man of a jewellery by name Antony's Golden Jewellery at Irinjalakuda. The petitioner herein is one of the partner of the jewellery. The accused was employed to deliver the gold ornaments to other jewellers as well as for marriage purposes in accordance with orders received by the petitioner's jewellery. The accused was apprehended by the Sub Inspector of police Chittur Police Station when he was on his way to Trichi to display the gold ornaments belonging to the Revision Petitioner to the jewellers in CRL.R.P.NO.1814 OF20132 Trichi. Pursuant to the apprehension of the accused with gold ornaments weighing 1877 grams, the case was registered against the accused under Section 41 (i)(d) and Section 102 of the Cr.P.C.
2. According to the Petitioner, the gold ornaments which were seized by the police exclusively belong to him. He prayed for getting interim custody of the said seized gold ornaments. After considering the materials on record and the arguments of the petitioner, the learned Magistrate dismissed the petition mainly on a finding that the gold ornaments cannot be given to the petitioner as the investigation of the case is at the initial stage. This order is under challenge in this Revision Petition.
3. Going by the impugned order, it is seen that the petitioner has produced photocopy of the partnership deed as well as photostat copy of the relevant pages in the stock Register so as to prove his ownership of the seized gold ornaments. The CRL.R.P.NO.1814 OF20133 Intelligence Officer, Department of Commercial Taxes, Palakkad also filed a report stating that the petitioner has not paid the tax and security deposit due under the KVAT Act, 2003. According to the petitioner, the gold ornaments seized from the accused was entrusted by them and it was intended for display to various jewelleries at Trichi. So, according to the petitioner, these gold ornaments cannot be included for sales tax and security deposit due under the KVAT Act 2003. Therefore, no tax need be remitted. The police has also filed a report stating that upon investigation the sources of gold ornaments and the persons for whom it was transported to Trichi was not revealed.
4. In compliance with the direction of this Court, the learned Government pleader sought instructions of the respondent and the respondent filed a statement. In the objection it is stated that the Investigating Officer had sent the request to the CRL.R.P.NO.1814 OF20134 concerned sales tax authorities. Intelligence squad No.III of commercial Tax Palakkad has sent a communication to the Investigating Officer to keep the proceedings until section 47 (2) proceedings under Kerala Value Added Tax are completed. Since the proceedings under Kerala Value Added Tax Act is pending consideration before the Intelligence squad and moreover the investigation is not completed the petitioner is not entitled to get interim custody of the property.
5. The learned counsel for the Revision Petitioner advanced arguments in support of the points raised by the Revision Petitioner and the learned Public Prosecutor drew my attention to the statement filed by the Investigating Officer.
6. Going by the impugned order it is seen that the interim custody was denied mainly on the reason that investigation is at initial stage. But it is pertinent to note that no proceedings for any offence, CRL.R.P.NO.1814 OF20135 under any law for the time being have been initiated against the Revision Petitioner or the accused except the proceedings under 41 (i)(d) and 102 of the Cr.P.C. It is admitted that the seizure was effected on 12/07/2013. Thus more than two months have been elapsed after the seizure. So far, tax authorities alone put forward a claim of tax evasion under Kerala Value Added Tax Act. In view of the decision of the Apex Court in Sunderbhai Ambalal Desai V. State of Gujarat [2003 (2) KLT1089(SC)], I am of the opinion that material articles cannot be kept in the custody of the court more than a period from 15 to one month and that period had already been over. It is for the investigating agency or any other competent authority to initiate proceedings under law if any at the earliest. But it is unfortunate to note that even after the lapse of more than two months, no proceedings have been effectively initiated against either the accused or the petitioner. It is pertinent to CRL.R.P.NO.1814 OF20136 note that the ornaments which is being kept by the custody of the court would worth more than Rs.5 Lakhs. It is not desirable to keep such a valuable thing in the court custody for a long period awaiting prosecution or claim from any other statutory authority.
7. Therefore, I direct the respondent to complete the proceedings, if any, against the Revision Petitioner or the accused with respect to this seized gold ornaments, within a period of one month and the court below is directed to close the proceedings under the present crime at any rate within a period of 45 days from today. If any offence punishable under any law for the time being in force, and requiring production of the gold ornaments for trial is made out within one month, by the respondent or any other statutory agency, the trial court shall grant interim custody of the gold ornaments to the Revision Petitioner on proper condition to the satisfaction of CRL.R.P.NO.1814 OF20137 the trial court as to ensure the production of the same as and when required. Similarly, if no offence under any law for the time being is made out against the accused or Revision Petitioner, the entire proceedings initiated under Sections 41(i)(d) and 102 of the Cr.P.C. must be closed and gold ornaments shall be given back to the party who proves ownership of the seized gold ornaments to the satisfaction of the trial court; at any rate within the time limit specified above. The Revision petition is disposed of accordingly. Sd/-K.HARILAL JUDGE MJL