IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 WP(C).No. 36189 of 2010(W) ------------------------- PETITIONER : --------------------- P.SASIDHARAN, POOKODAN HOUSE, AZHEEKODE, KANNUR-9. BY ADVS. SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO HOME AFFAIRS, GOVERNMENT OF KERALA, TRIVANDRUM-695 001. 2. THE SUPERINTENDENT OF POLICE, KANNUR-670 001. 3. THE SUB INSPECTOR OF POLICE, KANNUR TOWN POLICE STATION, KANNUR, PIN-670 001. R1 TO R3 BY GOVERNMENT PLEADER SRI. JAIBY PAUL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn THOMAS P.JOSEPH, J. ==================================== W.P(C) No.36189 of 2010 ==================================== Dated this the 08th day of April, 2011 J U D G M E N T Petitioner claims to be the registered owner of a Tipper lorry bearing No.KL-13/D-781. It is claimed that the said vehicle was purchased by taking a loan from a Private Financier. While so, the third respondent, Sub Inspector seized the vehicle on 19.11.2010. The vehicle was not released to the petitioner, nor produced in court. Thereon petitioner made a complaint in writing to the second respondent (Ext.P2). Second respondent has not taken any action on the said complaint. It is contended that if the vehicle is involved or suspected to be involved in the commission of the crime, proper procedure was to produce the same before court and not to release the vehicle to the Financier as the third respondent wished. It is therefore prayed in this proceeding that a direction may be given to the Superintendent of Police to enquire into Exts.P2 and P3 and initiate steps to recover the vehicle in question. 2. In the light of the submission made by learned counsel a report was called from the third respondent. Third respondent has filed a counter. In short what is stated is that on 19.11.2010 at W.P(C) No.36189 of 2010 -: 2 :- about 6.00 p.m. while on law and order duty the third respondent found a vehicle being towed on a recovery van along Caltext Junction, Kannur. Registration number of the Tipper lorry was not legible and hence the third respondent asked driver of the recovery van to stop the same. On questioning it was revealed that the vehicle was purchased by one Hassan Koya from one P.Sasi (said to be the petitioner herein) for a sum of `1,06,000/- and that the person intercepted is towing the vehicle to Kozhikode. The said person was also having the agreement (allegedly) executed between Hassan Koya and P.Sasi on 19.11.2010 (true copy of the agreement is Ext.R3[a]). Since the driver was not having any vehicular particulars and permission from Transport Department to scrap the vehicle it was directed to be taken to the police station. In the meantime it is claimed that petitioner was informed about the matter but he did not make any claim for possession of the vehicle. On 20.11.2010 at about 4.00 p.m. an agent of the Financier approached the third respondent for release of the vehicle. The agent contended that liability of the Financier is not discharged. On 21.11.2010 petitioner came to the police station. He was directed to produce the vehicular records and take back the vehicle but petitioner was not ready and willing to do so. In the circumstances, the vehicle was released to the Financier. It is also stated that since the vehicle W.P(C) No.36189 of 2010 -: 3 :- was not seized on the basis of any information or commission of crime no case was registered. I have heard learned counsel for petitioner and the learned Public Prosecutor. 3. Under Section 102 of the Code of Criminal Procedure (for short, “the Code”) any Police Officer may seize any property which is alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of commission of any offence. Sub-sec. (3) says that every Police Officer acting under sub-sec. (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court or whether there is difficulty in securing proper accommodation for the custody of such property or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of court as to the disposal of the same. Obviously the third respondent has not acted in accordance of sub-sec. (3) of Sec.102 of the Code. Even as per version of the third respondent no offence was disclosed with respect to the vehicle in question. Third respondent has no case that he has registered a FIR and instead W.P(C) No.36189 of 2010 -: 4 :- he says no FIR was registered. Under sub-sec. (3) of Sec.102 production of the vehicle before court or release to such person as the case may be is pending any enquiry or investigation into the offence committed or suspected to be committed. None of such contingency arose in this case. In such a situation it was not within the power of the third respondent to hand over the vehicle to the Financier or anybody as the case may be. Now that vehicle is in the custody of the Financier and a photocopy of the agreement is produced as if petitioner has sold the vehicle to one Hasan Koya I do not consider it necessary to a pass any order in this petition. In the light of the counter affidavit filed by the third respondent a direction to dispose of Exts.P2 and P3 also is not required. Petitioner can take recourse to other remedies available to him as per law for getting possession of the vehicle if he is entitled to such possession. Writ Petition is closed with the above observations. THOMAS P. JOSEPH, JUDGE. vsv