IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 Crl.MC.No. 1734 of 2009 ---------------------------------- CRIME NO. 1/2008/SCE PENDING BEFORE THE ENQUIRY COMMR. & SPECIAL JUDGE, TRICHUR. .................... PETITIONER: ------------------- B.S.RADHAKRISHNAN, H.NO.TC 55/825, SHANKAR NAGAR, NEERAMANKARA, THIRUVANANTHAPURAM. BY ADVS. MR.ANIL THOMAS(T), SMT.K.V.RESHMI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. INVESTIGATING OFFICER, V.A.C.B, SPECIAL CELL, ERNAKULAM. 3. THE SUPERINTENDENT OF POLICE, V.A.C.B, SPECIAL CELL, ERNAKULAM. R1 TO R3 BY PUBLIC PROSECUTOR MR. P.N SUKUMARAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. =================== Crl.M.C. No. 1734 of 2009-F =================== Dated this the 16th day of June, 2009. O R D E R Petitioner is the accused in Crime No.1/2008 pending investigation. The case against the petitioner is that he committed offences under Sections 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 on the allegation that while working as Chief Engineer K.S.E.Board, he had amassed wealth disproportionate to his assets, to the tune of Rs.19,88,509/-. During investigation, under Annexure 11 mahazer, on 5-2-2008 at 11.55 AM gold ornaments kept by the petitioner in locker No.251 of Poojappura Branch of State Bank of Travancore was seized. Annexure 11 mahazer shows that the gold ornaments seized from the locker were weighed and weight of each ornament is shown. Subsequently, petitioner filed CMP No.1633/2008 (Annexure 3) before the vigilance court under Section 451 of Code of Criminal Procedure for interim custody of the Crl.M.C.No.1734/2009-F -2- articles seized from him, including the key of locker No.251 of S.B.T. Poojappura Branch. Under Annexure 4 order, Special Judge directed release of only the pass books shown as item Nos.2 to 7 in Annexure 3 petition as well as three F.D. receipts. Petitioner is also permitted to operate the bank account, furnishing proper security to the tune of Rs.7 lakhs. Petitioner thereafter filed CMP No.2362/2008 (Annexure 5) to release the gold ornaments seized on 5-2-2008 under Annexure 11 mahazer. According to the petitioner, an order was passed on 26-8-2008 directing return of gold ornaments or furnishing security and petitioner was directed to execute a bond on 3-11-2008. According to the petitioner, he had furnished security to the tune of Rs.31,61,400/- as evidenced by Annexure 7 certificate of the Tahsildar, who valued the immovable property for that amount. According to the petitioner, pursuant to the said order, Annexure 8 communication was sent by the Special Judge to the investigating officer to release the items mentioned therein, including gold Crl.M.C.No.1734/2009-F -3- ornaments seized from locker No.251. It is seen that thereafter Annexure 10 petition was filed by the Additional Legal Adviser to the Vigilance Court stating that gold ornaments inside the locker are to be weighed and valued and identified and therefore a direction is to be given to seize the gold ornaments inside the locker and for that purpose the locker key produced in the court is to be returned to the investigating officer. Annexure 13 order was passed in that application permitting the investigating officer to take the key of the locker from the court, seize the gold ornaments in the locker and release to the petitioner on executing kychit with a direction that petitioner shall produce the ornaments as and when directed by the investigating officer. Annexure 12 order was thereafter passed on 27-11-2008 permitting the investigating officer to take the key of the locker from the Court. Thereafter Annexure 14 communication was sent from the court to the Manager, S.B.T. not to allow the petitioner or any other person on his behalf to operate locker No.251 until further Crl.M.C.No.1734/2009-F -4- directions. This petition is filed under Section 482 of Code of Criminal Procedure contending that when as per order dated 26-8-2008 the Court has already directed to return the gold ornaments on furnishing security, a subsequent contrary order cannot be passed and therefore those orders are illegal and are to be quashed. 2. Learned Counsel appearing for the petitioner submitted that petitioner is entitled to get back the gold ornaments, which was already seized under Annexure 11 mahazer, the weight and other details are mentioned therein and he has already furnished security and so petitioner is entitled to get the gold ornaments released. 3. Learned Public Prosecutor submitted that subsequently petitioner was directed to appear on a day convenient for him to open the locker in his presence and the gold ornaments are necessary for the purpose of investigation of the case. 4. If the investigating officer is aggrieved by the order directing return of gold ornaments on furnishing Crl.M.C.No.1734/2009-F -5- security, it should have been challenged. So far that direction is not challenged. So also when the court has already directed to return the gold ornaments, that order cannot be reviewed by the same court by passing a contrary order later on. 5. There is no dispute with regard to the ownership of the gold ornaments seized from locker No.251. Though in Annexure 10 petition filed by the Additional Legal Adviser, a direction was sought to seize the gold ornaments in the locker, Annexure 11 mahazer shows that the gold ornaments were seized as early as on 5-2-2008. I do not find for what purpose the gold ornaments are to be retained with the investigating officer. The only allegation against the petitioner is that he has amassed wealth disproportionate to his known income and the gold ornaments was purchased by the use of that income and to show that he had amassed that much wealth, by which the gold ornaments were purchased, during the relevant period when petitioner was working in K.S.E.Board. For that Crl.M.C.No.1734/2009-F -6- purpose there is no necessary to retain the gold ornaments. If the case of the investigating officer is that before releasing the gold ornaments to the petitioner, the gold ornaments are to be valued, I do not find any objection for valuing the gold ornaments before releasing them. If the identity of the ornaments are to be proved, the investigating agency can take photographs of each item of the ornament and get it certified by the petitioner before the ornaments are released and it can be proved later at the time of evidence. 6. In such circumstances, irrespective of the illegality in the procedure followed by the Special Judge, the entire complication could be avoided by directing to release the gold ornaments seized under Annexure 11 mahazer from locker No.251 of Poojapura Branch of S.B.T. on 5-2-2008 to the petitioner after furnishing sufficient security before the Special Judge. 7. If the security as stated by the petitioner is furnished to the satisfaction of the Special Judge and it is Crl.M.C.No.1734/2009-F -7- sufficient, petitioner is entitled to get the gold ornaments, seized under Annexure 11 mahazer and kept in locker No.251 released under Section 451. To enable the investigating officer to value the gold ornaments, the investigating officer is directed to furnish a date and time to the petitioner to be present before the Poojapura Branch of S.B.T. so that all the gold ornaments could be valued in his presence on a particular day. Petitioner shall appear before the bank on that day. The investigating officer shall make all arrangements to get the gold ornaments valued at that time. At that time, if so advised, the investigating agency can get the photographs of the gold ornaments and get them identified by the petitioner. After such valuation the gold ornaments shall be returned to the petitioner. The Investigating officer has to fix a date within a period of 45 days from today. M.SASIDHARAN NAMBIAR JUDGE dkr