IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 Crl.MC.No. 2884 of 2008() ------------------------- CMP.5804/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHENGANNUR .................... PETITIONER/A2: ------------ SALEENA, W/O AJI, AGED 25 YEARS, KUNUMPURATH @ AMPADIYIL,PERISSERY MURI, PULIYUR VILLAGE,CHENGANNUR TLUK. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.AJITH MURALI RESPONDENT/COMPLAINANT: ------------------------------------------ STATE OFKERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2884 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2008 O R D E R The petitioner has been arrayed as the second accused in a crime registered alleging offences punishable, inter alia, under Section 55(a) of the Kerala Abkari Act. The crux of the allegations is that when the Excise Party came to the scene of the occurrence on receipt of prior information, 12 litres of spirit was found available in the premises along with some other empty cans. The first accused is the husband of the petitioner. He along with some others were present at the scene of the crime. He allegedly took to his heels. A bundle of currency notes fell from his possession at the scene. The currency notes were seized. There was altogether an amount of Rs.44,900/-. The same was seized. The petitioner was not available at the scene. She has also been arrayed as an accused. Investigation is in progress. 2. The petitioner claims release of the said amount of Rs.44,900/- on the plea that the said amount was seized not from Crl.M.C.No. 2884 of 2008 2 the possession of her husband, but the same was available in an Almira in the premises. She had raised that amount by availing a loan from a private financier. That amount is not in any way liable to be seized or confiscated. There is nothing to show that the said amount was obtained by sale of spirit. The petitioner examined the private financier, who had allegedly advanced the amount. The relevant documents were also produced. The learned Magistrate by the impugned order rejected the prayer for release of the amount. 3. The petitioner claims to be aggrieved by the order. According to her, even accepting the entire allegations, there is nothing to show that the amount seized represents the proceeds of illicit trade in liquor. The petitioner disputes the assertion that the amount had fallen from the possession of her husband when he took to his heels, but contends that even if that allegation be true, retention of the currency notes is not necessary for proper progress of the case. It is prayed that subject to appropriate conditions the amount may be directed to be released to the petitioner. 4. The learned Prosecutor opposes the application raising the contention that seizure was not from the Almira as alleged, but was Crl.M.C.No. 2884 of 2008 3 from the personal possession of the first accused when the same fell down when he ran away. The learned Prosecutor further submits that the amount represents the profit obtained by illicit trade in liquor. 5. I shall at this early stage not embark on any detailed discussion on merits about the acceptability of the rival assertions. But having considered all the relevant circumstances I am persuaded to agree that subject to appropriate conditions the amount can be ordered to be released to the petitioner. 6. This Crl.M.C. is allowed. The impugned order is set aside. The amount of Rs.44,900/- seized by the Excise officials shall be released to the petitioner by the learned Magistrate on condition that she executes a bond for Rs.50,000/- with two solvent sureties each for the like sum and also provides bank guarantee for the said amount of Rs.49,000/- to the satisfaction of the learned Magistrate. (R. BASANT) Judge tm