IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.MC.No. 3825 of 2008() ------------------------- CMP.13649/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER: --------------- SURESH, SON OF SURENDRAN, S.P. NOVAS, KUREEPUZHA CHERRY, THRIKKADAVOOR, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S. U NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R BASANT, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Crl.M.C.3825 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 04th day of December, 2008 O R D E R From the possession of the petitioner, an amount of Rs.10,99,120/ was seized by the police on the ground that he was not able to satisfactorily explain the possession of the same. This seizure was effected on 07.10.07. The petitioner was arrested under Section 41 (1) (d) Cr.P.C and the amount was seized under a mahazar. It is alleged that the petitioner did not reveal the source of the money which was seized from his possession. The police completed the investigation/enquiry and the court has mere registered a charge against the petitioner u/s 53 (A) of the Kerala Police Act. 2. In the meantime, the petitioner`s employer, who allegedly had handed over gold ornaments to the petitioner for sale at Coimbatore and proceeds of which sale, the petitioner was allegedly carrying with him at the time when he was intercepted, had approached the learned Magistrate with an application to release the cash seized from the petitioner. The petitioner`s employer owned Crl. MC 3825/08 : 2 : that the cash belongs to him and the learned Magistrate was pleased to accept the assertion of the employer of the petitioner. The learned Magistrate directed the release 2/3rd of the cash to the petitioner and 1/3rd of the amount to the Income Tax Department. In short, the petitioner submits that the State has no case at all that the amount seized from his possession is stolen property. From the report filed by the Investigator, it is seen that cognizance has been taken of the offence punishable u/s 53 (A) Kerala Police Act. It is submitted that the said proceedings are liable to be quashed. 3. Section 53 (A) of the Kerala Police Act reads as follows: “whoever is found in possession or is proved to have been in possession of anything which there is reason to believe to be stolen property or property fraudulently obtained and for the possession of which he fails satisfactorily to account, shall on conviction be liable to fine not exceeding one hundred rupees or to imprisonment for a term which may extend to three months or both” (emphasis supplied) Crl. MC 3825/08 : 3 : 4. To attract the culpability u/s 53A of the K.P. Act, it must be proved that the offender was in possession of anything for which there is reason to believe the same to be stolen property or property fraudulently obtained and which he must be unable to account satisfactorily. The State has no case that the property is stolen property or is obtained fraudulently by the petitioner. According to the petitioner, he had accounted for such possession. At any rate, the petitioner contends that the learned Magistrate has already accepted the claim of the employer of the petitioner and continuance of the prosecution against the petitioner u/s 53 (A) of the Kerala Police Act is totally unjustified and unnecessary. 5. The learned Public Prosecutor concedes that the investigation has not revealed that the property is stolen property or property fraudulently obtained by the petitioner. But the learned Public Prosecutor contends that the burden was on the petitioner to explain how he had come into the possession of such a large quantity of currency. He could have told the police that he obtained it from his employer. That fact was not revealed to the police. Hence, the police is constrained to proceed against the petitioner. 6. An analysis of Section 53 (A) of the Kerala Police Act Crl. MC 3825/08 : 4 : which I have extracted above clearly shows that there must be reason to believe that the property seized was stolen property or the property fraudulently obtained. There is no whisper of an allegation to that effect and the orders passed by the learned Magistrate clearly shows that the culpability under Section 53 (A) is not attracted in any way. I am, in this circumstance, satisfied that the prayer in the petition is justified. 8. In the result, this Crl. M.C. is allowed and the cognizance taken against the petitioner u/s 53 A of the Kerala Police Act on the basis of Crime 912/07 of the Karunagappilly Police Station (C.C.01/08 of Judicial First Class Magistrate, Karunagappilly) is hereby quashed. (R BASANT, JUDGE) KMD