IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 OP.No. 6607 of 2002(J) ---------------------- PETITIONER: ------------------- V.J. JOSE, VAKAYIL HOUSE, B.M.C. P.O., THRIKKAKARA, ERNAKULAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR SRI.P.RAJKUMAR RESPONDENTS: ---------------------- 1. THE SUB INSPECTOR OF POLICE (SRI.SANAL KUMAR), CRIME SQUAD, COBRA SQUAD, FUNCTIONING AT THE A.R. CAMP, ERNAKULAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. Addl.3. M/S.BPL MOBILE CELLULAR LIMITED, IST FLOOR, MATHER SQUARE, NORTH RAILWAY STATION ROAD, ERNAKULAM, KOCHI : 682 018. (Impleaded as per order in CMP.No.22649/2002 dated 27-6-2002) BY GOVERNMENT PLEADER SRI.BENJAMIN PAUL P. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:- P1: COPY OF THE LAWYER'S NOTICE DTD.25-2-2002 SENT ON BEHALF OF THE PETITIONER ALONG WITH ACK. DUE CARD. P2: COPY OF THE NEWS ITEM APPEARED IN MATHRUBHUMI DAILY DTD.21-12-2001. P3: COPY OF THE NEWS ITEM APPEARED IN RASHTRA DEEPIKA DAILY DTD.20-12-2001. P4: COPY OF THE REPRESENTATION DTD.27-2-2002 SUBMITTED BY THE PETITIONER BEFORE THE CITY COMMISSIONER OF POLICE. RESPONDENTS' EXHIBITS:- Nil. ( true copy ) P.A. to Judge. kvs/- T.R.RAMACHANDRAN NAIR, J. = = = = = = = = = = = = = = = O.P.No.6607 OF 2002-J. = = = = = = = = = = = = = = = Dated this the 2nd day of January, 2008. J U D G M E N T The writ petition is filed with a main prayer to issue a writ of mandamus commanding the first respondent to immediately return back to the petitioner his two diaries and the Mobile phone with No.98461 22092, illegally and forcibly removed by the first respondent from the residence of the petitioner on 19-12-2001. The short facts leading to this writ petition are the following: 2. The petitioner's premises was searched by the first respondent on 19-12-2001 on the ground of information that prostitution was going on in building No.11/30 of Kakkanad Village. It appears that pursuant to the raid conducted at the house belonging to the petitioner police arrested six persons including the petitioner and his wife. A case was registered as Crime No.312/2001 and petitioner and other accused persons were produced before the Judicial First Class Magistrate Court, Aluva on 20-12-2001. The complaint of the petitioner herein is that even after the disposal of O.P.No.6607 OF 2002-J. 2 Crl.M.C.Nos.1839/2002 and 1840/2002 whereby the first information reports have been quashed by this Court, the first respondent is refusing to release the Mobile phone and two diaries. 3. The first respondent has filed a counter-affidavit clearly disputing the averments in the writ petition as regards the allegation of forceful removal of articles as alleged by the petitioner. It is stated in para.4 that none of the accused, including the petitioner had raised any complaint against the police before the Magistrate regarding any property illegally taken from their custody by the police. The case diary also shows that the items referred to in the writ petition were not taken into custody. It is clearly averred by the first respondent that he has not taken either mobile phone or diaries belonging to the petitioner as alleged in the writ petition. 4. The petitioner has filed a reply-affidavit also. In the light of the fact that the allegation raised by the petitioner in the writ petition regarding forceful removal of mobile phone and the diaries from his residence stand not proved, there is no question of issuing a direction to the first respondent to return back the same to the petitioner. No cogent evidence has been produced in support of the plea. The O.P.No.6607 OF 2002-J. 3 petitioner could have moved the criminal court at the right time if those articles had actually been seized. As pointed out in the counter- affidavit, there was no complaint on the part of the petitioner before the criminal court when the petitioner and others were produced before that court as regards illegal/unauthorised taking possession of any articles by the police at the time of arrest. 5. Since the facts alleged in the writ petition are disputed, this Court cannot adjudicate such disputed facts in these proceedings. Therefore, the writ petition seeking a direction to the first respondent to release such articles is highly misconceived and the same is dismissed. This will not prevent the petitioner from moving any appropriate authority, if he is so advised. The Original Petition is dismissed as above. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/