IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH APRIL 2011 / 6TH VAISAKHA 1933 Crl.MC.No. 1173 of 2011() ------------------------- CMP.9153/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM CRIME NO.1008/10 OF CHAVARA POLICE STATION .................... PETITIONER(S): PETITIONERS -------------------------- 1. SAINUDEEN, 29 YEARS OLD S/O.MUHAMMED, PADALAKKATTIL HOUSE, KUMARANALLOOR P.O., VIA VADAKKANCHERRY, THRISSUR. 2. YOUSAF ALI, AGED 35 YEARS, -DO- NOW RESIDING AT, ANUGRAHA HOUSE, KANIYAMPURAM, OTTAPPALAM. BY ADV. SRI.V.JAYAPRADEEP RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, CHAVARA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ---------------------------------------------- Crl.M.C.No. 1173 of 2011 ---------------------------------------------- Dated this the 26th day of April, 2011 O R D E R Petitioners are aggrieved by Annexure-E order dated 20th January, 2011 on C.M.P.No.9153 of 2010 of the Court of Judicial First Class Magistrate-II, Kollam. According to the petitioners, the accused cheated them by sale of a brass pot for Rs.50 lakhs. It is stated that the police seized Rs.14,66,000/- from the accused and the same was produced before the learned Magistrate. First petitioner, claiming right over the said amount, filed C.M.P.No.9153 of 2010 for interim custody of the amount seized, which resulted in Annexure-E order. The learned counsel submitted that the learned Magistrate is not correct in observing that there is dispute regarding ownership of the amount. It is contended that no reference has been made to the records submitted by the police which would indicate, prima facie that the amount belonged to the petitioners. 2. I have heard learned Public Prosecutor also. 3. It is seen that on C.M.P.No.9153 of 2010 no notice was given to the accused from whose possession the amount was allegedly seized. He WP(C) No. - 2 - is entitled to notice on the proceeding. He is entitled to object to the claim made by the petitioners or any of them or even make a claim for interim custody. In such a situation, the order passed without notice to the accused cannot stand. 4. Learned Magistrate, while considering the request for interim custody, is entitled to look into the police records for the limited purpose of deciding as to who is entitled to be in custody of the amount until disposal of the case. 5. Having regard to the contentions raised, the impugned order cannot stand and is liable to be set aside. The Criminal Miscellaneous Case is allowed. Annexure-E order dated 20th January, 2011 on C.M.P.No.9153 of 2010 of the Court of Judicial Magistrate of First Class-II, Kollam is set aside and that the C.M.P is remitted to the learned Magistrate for fresh decision after giving notice to all interested parties and in the light of the observations made above. Learned Magistrate is directed to expedite the disposal of C.M.P.No.9153 of 2010. Sd/- THOMAS P. JOSEPH, JUDGE vgs /true copy/ PS TO JUDGE