IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 1987 of 2008() ------------------------- CMP.1863/2007 of JUDL.MAGISTRATE OF FIRST CLASS, MANANTHAVADY .................... PETITIONER: ACCUSED: -------------------- ARAKKA HAMZA, S/O.IBRAHIM HAJI, ARAKKA HOUSE, VELLAMUNDA, 8/4, KATTAYAD P.O., MANANTHAVADY, WAYANAD DISTRICT. BY ADV. SRI.M.C.JOHN RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA REPRESENTED BY FOREST RANGE OFFICER, MANANTHAVADY IN O.R.NO.6/2007 REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SPECIAL PUBLIC PROSECUTOR (FORESTS) SRI.M.P.PRAKASH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 1987 OF 2008 ----------------------------------------------- Dated this the 20th day of June, 2008 O R D E R The petitioner claims to be aggrieved by Annexure A1 order passed by the learned Magistrate under Section 451 Cr.P.C under which 913.700 kg of Cinnamon Bark seized from the possession of the petitioner was refused to be returned to him. 2. According to the petitioner, this quantity of Cinnamon Barks was not collected by him unauthorisedly from the Government forest and that the same was released to him as per an earlier order of this Court. There are serious disputes on this aspect. The Forest Department asserts emphatically that the consignment of Cinnamon seized was not part of the consignment that was directed to be released as per the earlier order passed by this Court. It is asserted that the same was collected from the Government forest. That ascertain is stoutly denied by the petitioner. 3. Be that as it may, the said controversy cannot now be resolved on the basis of the materials presently available. The petitioner’s counsel in the course of argument offers that subject to Crl.M.C. No. 1987 OF 2008 2 any appropriate conditions which shall secure the interest of the Government in so far the value of the property is concerned, the property may be directed to be released to the petitioner so that the property does not suffer damage, destruction and deterioration. Any appropriate and adequate conditions may be imposed, it is submitted. 4. The learned Prosecutor opposes the said prayer also. In response to the specific query, learned counsel for the petitioner points out and learned Prosecutor concedes that the value of the articles seized has been shown in the mahazar to be Rs.18,260/- at the place where it was found. 5. Having considered all the relevant aspects, I am satisfied that the until the controversy is resolved, it is not necessary to insist that such article must remain in the custody of the department. Subject to adequate terms and conditions the materials seized can be directed to be released to the petitioner. The property Cinnamon Bark is different from timber even as per the definition of Forest Produce under Section 2(f) (i) of the Act. Section 61 A can have application only if the article involved is Crl.M.C. No. 1987 OF 2008 3 timber, charcoal, firewood or ivory. Section 61 A hence has no application even though Cinnamon Barks can be forest produce under Section 2(f) (i) of the Forest Act. Seizure has been reported to the learned Magistrate and in these circumstances the learned Magistrate certainly has jurisdiction under Section 457/451 Cr.P.C to direct release of the property seized. 6. The learned Prosecutor argues that such instant release of the contra band article would only encourage repetition of such crimes. I am satisfied that following the dictum in Sundarbai Ambalal Desai v. State of Gujarat [SC 2003(2) KLT 1089] also this Court has to ensure that the valuable property is not unnecessarily left to suffer damage, deterioration and destruction. Even if it were left in the possession of the department, it can only be directed to be sold and proceeds can only be directed to be retained in Court till disposal of the case. I am in these circumstances satisfied that subject to appropriate conditions the article can be released to the petitioner. 7. In the result, this petition is allowed. The impugned order Crl.M.C. No. 1987 OF 2008 4 is set aside. It is directed that the quantity of 913.700 kg of Cinnamon Barks seized from the petitioner shall be released to the petitioner and the petitioner shall be permitted to get the same in his custody on condition that the petitioner makes a cash deposit before the learned Magistrate for an amount of Rs.20,000/-. Such amount, if deposited, shall be retained by the learned Magistrate in any fixed deposit account such that the amount along with the interest accrued can be directed to be released to which ever party is ultimately found to be entitled for the same. R. BASANT, JUDGE ttb Crl.M.C. No. 1987 OF 2008 5 Crl.M.C. No. 1987 OF 2008 6