IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 Crl.MC.No. 4176 of 2010(D) -------------------------------------- [CMP.NO.6260/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, KASARAGOD, CRIME NO.503/2010 OF THE KUMBLA POLICE STATION, KASARAGOD] .................... PETITIONER/ACCUSED: ---------------------------------- M.K.MUSBA, AGED 32 YEARS, S/O. M.K.MOIDEEN, R/AT M.K.HOUSE, S.S.APARTMENTS, SALAPI MASJID CHEKKABETTU, SURATHKAL, MANGALORE TALUK. BY ADVS. SRI.M.RAMESH CHANDER, SRI.ANEESH JOSEPH. RESPONDENT/STATE: -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J ........................................... CRL.M.C..NO.4176 OF 2010 ............................................ DATED THIS THE 8th DAY OF NOVEMBER,2010 ORDER The petitioner filed CMP 6260 of 2010 before Judicial First Class Magistrate -I, Kasargod under Section 451 of Code of Criminal Procedure for interim custody of Maruti Alto Car No.KA-19-5485, which was seized by the Kumbla police in Crime No.503 of 2010. By Annexure A1 order, petition was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure A1 order. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. The argument of learned counsel appearing for petitioner is that petitioner is prepared to give any security and he is entitled to get interim custody of the vehicle. Learned Public Prosecutor pointed out that petitioner M.K. Musba when questioned by the police, disclosed that the vehicle was transferred after receiving its value to one Nazar. It was argued that hence petitioner is not entitled to get interim custody of CRMC 4176/2010 2 the vehicle. Learned counsel appearing for petitioner submitted that Nazar is the power of attorney holder of the petitioner and therefore he is entitled to get interim custody of the vehicle. 4. Though copy of CMP 6260 of 2010 was not produced, learned counsel appearing for the petitioner made available a copy of the petition which shows that petitioner Musba was represented by the power or attorney holder Nazar in that petition. But the petition shows that petitioner represented by the power of attorney holder is the owner of the vehicle. It does not show that petitioner is seeking interim custody of the vehicle in his capacity as the owner of the vehicle and it was not Nazar on setting up a case that he has purchased the vehicle from the petitioner. Learned Magistrate dismissed the petition under Annexure I order holding that as modifications were made in the vehicle, to transport cattles illegally, the vehicle cannot be granted on interim custody to the petitioner. Learned Magistrate has not considered the question whether petitioner or the power of attorney holder is the owner of the vehicle and whether on conditions the vehicle could be granted on interim custody. Even if it is taken that the CRMC 4176/2010 3 modification which was made to the vehicle for transporting cattles illegally, that will not disentitle the petitioner from getting interim custody of the vehicle on conditions, if he is the owner. But if he has already transferred the vehicle, it is only the transferee who could seek interim custody. If so, it is not in the interest of justice to refuse interim custody, if the petitioner deposits the value of the vehicle or furnishes sufficient security for the value of the vehicle before learned Magistrate. As the learned Magistrate has not considered these aspects, Annexure A1 order is quashed. CMP 6260 of 2010 before Judicial First Class Magistrate -I, Kasargod is remitted to the learned Magistrate for fresh disposal in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk