IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 Crl.MC.No. 2885 of 2008() ------------------------- CMP.394/2008 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONER: ------------ THAHAKUTTY, S/O ABUBEKAR KUTTY, PADEETTATHIL, PAZHAYA THERUVU VEEDU, KMC - XI WARD, ERUVA MURI, PATHIYOOR VILLAGE. BY ADV. SMT.A.SALINI LAL RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.2885 of 2008 ------------------------------------------------- Dated this the 27th day of August, 2008 ORDER The petitioner is the owner of a jewellery shop. From the premises of the petitioner, certain articles were seized allegedly on the basis of discreet information gathered by the police that stolen articles were being kept by the petitioner in his possession in the shop. 279.900 grams of gold ornaments, 16 mobile phones and currency notes of Rs.84,790/- were allegedly seized. The petitioner has a case that actually Rs.90,000/- was taken away from his premises. 2. Be that as it may, these articles were seized and an F.I.R. was registered as Crime No.570/07 alleging the offence punishable under Sec.414 IPC. The seizure was effected on 12/8/07. The petitioner waited for long. According to the petitioner, the gold ornaments were all kept in his possession Crl.M.C. No.2885 of 2008 -: 2 :- in connection with his business and they were not stolen gold ornaments. Mobile phones were available in the premises as they were entrusted to the petitioner's son by various customers for repair. Cash was available in the premises in connection with the bona fide business carried on by him in the shop. The petitioner applied for return of the gold ornaments. The learned Magistrate by the impugned order rejected the same. At that stage, investigation was not completed. 3. The learned counsel for the petitioner submits that absolutely no material has been collected by the police to justify the seizure of these articles and the retention of the same in the custody of the police/court. It is prayed that the impugned order may be set aside and the articles seized may be released to the petitioner. 4. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that the investigation is now complete and the final report has already been filed. The learned counsel for the petitioner submits that the petitioner shall be able to explain to the learned Magistrate how the 16 mobile phones and the other seized articles came into his possession. To a pointed query by this Court, the learned Public Prosecutor is unable to explain how the final report under Crl.M.C. No.2885 of 2008 -: 3 :- Sec.414 IPC has been filed. It is not explained as to where the theft has been committed; who has committed the theft and in what manner and why it is alleged that the articles seized are stolen articles. 5. Having considered all the relevant inputs, I am satisfied that the petitioner can be permitted to move the learned Magistrate again at the present stage i.e., after filing of the final report explaining to the learned Magistrate afresh the claim of the petitioner as to how he is entitled for possession of the articles. The learned Public Prosecutor can also explain to the learned Magistrate why and under what circumstances the seizure has been effected and how it is alleged that the offence under Sec.414 IPC has been committed by the petitioner. 6. This Crl.M.C. is, in these circumstances, allowed. The impugned order is set aside. The learned Magistrate shall dispose of CMP No.394/08 afresh in accordance with law after giving both sides an opportunity to raise and substantiate their contentions. I need only mention that the learned Magistrate must consider the explanation offered by the petitioner for possession of the articles seized as also the case of the prosecution as to how the allegation under Sec.414 IPC is justifiable in the given circumstances. Parties shall appear Crl.M.C. No.2885 of 2008 -: 4 :- before the learned Magistrate on 6/9/2008 to continue the proceedings. Orders shall be passed by the learned Magistrate as expeditiously as possible – at any rate, within a period of 3 weeks from 6/9/2008. 7. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge