IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 Crl.MC.No. 547 of 2008() ------------------------ CRMP.27/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... PETITIONER: ------------ FAISAL M., S/O. ABU HAJI, AGED 28 YEARS, MULLAMBALATH HOUSE, PROPRIETOR, 'MAX GOLD', KODUVALLY P.O., KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: ------------- 1. STATE OF KERALA, THROUGH THE CIRCLE INSPECTOR OF POLICE, SULTHAN BATHERY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. HARIS, S/O. MUHAMMED, AGED 25/2007, KUNDACHALIL HOUSE, PALAKUNNUMMEL, KODUVALLY. 3. ABID, AGED 25/07, ULIYADAN KUNNEMMEL HOUSE, KODUVALLY. 4. ANZAR, S/O. ASSAIN, AGED 25/07, KANNIPURAYI HOUSE, VAVAD, KODUVALLY. BY PUBLIC PROSECUTOR SRI.M.S. BREEZE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 547 of 2008 * * * * * * * * * * * * * * * * * * Dated: 12-02-2008 ORDER Petitioner who claims himself to be a gold merchant running a jewellery shop under the name and style of “Max Jewellers” at Koduvally challenges the order dated 29-01-2008, passed by the J.F.C.M.I, Sulthan Bathery in C.M. P. No. 27 of 2008 as per which the petitioners had claimed interim custody of the currency notes worth Rs. 33,30,000/-. 2. According to the petitioner, on 6-11-2007, he had sold 3160.388 grams. of gold to one Dulhan Fine Jewels in Rajhan's Gold Mall at Bangalore for a total price of Rs. 33,30,000/- and the money was carried by his employees (respondents 2 to 4 herein) from Bangalore to Koduvally. On the way, the Circle Inspector of Police, Sulthan Bathery seized the currency notes and produced the same before the Magistrate after registering a case as Crime No. 485 of 2007 under Sec . 41 (1)(d) Cr.P.C. The seizure was on 7-11-2007. Even as on today, there is no report filed before the Magistrate alleging the commission of any offence either by the persons from whom the currency notes were Crl.M.C. No. 547 of 2008 -:2:- seized or by the petitioner herein who claims to be the owner of the same. Upon production of the currency notes before the Court, the petitioner filed the above petition as Crl.M.P. No. 27 of 2008 under Sec, 451 Cr.P.C. for release of the currency notes on interim custody. Respondents 2 to 4 from whom the currency notes were seized did not oppose the claim of the petitioner, in fact, they had conceded that the petitioner is the owner of the seized currency notes. The Station House Officer, Sulthan Bathery as well as the Enforcement Directorate from whom reports were called for by the Magistrate also stated that they had no objection in releasing the currency notes to the petitioner. Such being the position, the learned Magistrate was not justified in insisting on clear cut documentary proof from the petitioner to show his ownership over the currency notes in question. In the light of the decision of the Apex court in Sunderbhai Ambalal Desai v. State of Gujrat - 2002 (10) SCC 283 the petitioner can be given interim custody of the currency notes after the preparation of an inventory regarding the number and other details of the currency notes and after getting the signature of the petitioner thereon and also on the petitioner executing a bond for such amount as the learned Magistrate may fix. The Crl.M.C. No. 547 of 2008 -:3:- petitioner shall also give an undertaking that he shall produce the same amount in currency notes during the trial of the case. The safeguards stipulated in Sunderbhai Ambalal's case (supra) shall also be followed before handing over the currency notes to the petitioner. In the undertaking to be executed by the petitioner he should state that he will not dispute the facum of return of the currency notes on interim custody or the serial numbers or genuineness of the same. This Crl.M.C. is disposed of as above. V. RAMKUMAR, (JUDGE) ani.