C.K.Sherin vs State Of Kerala

Bechu Kurian Thomas, J

Petitioner challenges an order rejecting her application under section 451 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') refusing to grant interim custody of gold ornaments.

The petitioner complained that between 01.01.2019 and 09.02.2019, the accused, who was her servant, had stolen her gold ornaments. On the basis of the said complaint, a crime was registered as F.I.R. No.263/2019 of Elamakkara Police Station. During the course of the investigation, the police seized gold ingots and a gold nugget, which were entered as T No.81/19 and were produced before the court. Subsequently, an application was filed, seeking interim custody of the gold recovered pursuant to the petitioner's complaint.

By the impugned order, the learned Magistrate dismissed the application for interim custody, stating that the prosecution case was that a gold chain weighing 6.3 gms, a gold locket and a diamond ring apart from a diamond locket was stolen by the accused and that there is no document to show that petitioner is the owner of the articles recovered. The learned Magistrate also observed that what was seized by the police was an oval-shaped gold plate weighing 900 mg and a small ball-shaped gold having a weight of 1 gm and one gold nugget having a weight of 4.4 gm which are in the form of gold ingots and not ornaments. It was held that no purpose would be served by granting interim custody since the petitioner will not be able to convert the gold ingots into ornaments until the trial is over.

I have heard Smt. Amrin Fathima, the learned counsel for the petitioner and Smt.Sreeja V., the learned Public Prosecutor.

In the decision in Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283, the Supreme Court had observed that retaining valuable articles, such as gold, in police custody for years till the trial is over does not serve any purpose. It was also observed that if the material on record indicates that the articles belong to the complainant, the seized articles can be handed over upon appropriate conditions. In the decision in Ashok Kumar v. State of Kerala 2012 SCC OnLine Ker. 21541 a learned Single Judge of this Court had, after referring to Sunderbhai Ambalal's case (supra) held that even gold ingots can be released on obtaining sufficient security and undertaking by imposing conditions.

Viewed in the backdrop of the above decisions, it has to be noted that the gold ingots were recovered pursuant to a complaint filed by the petitioner, and the crime itself was registered on the basis of the said complaint. Therefore the recovery of gold ingots/articles is directly connected with the crime registered at the behest of the petitioner. Though it may be difficult to produce records to show that the gold ingots belonged to the petitioner, I am of the view that since the gold has been recovered on the basis of the complaint of the petitioner, the same is a sufficient material atleast for the purpose of granting interim custody of the said articles. As observed in Sunderbhai Ambalal's case (supra), no purpose would be achieved by retaining the gold or valuable articles in court until the trial is over.

In the result, the order dated 17.02.2021 in C.M.P. No.175 of 2021 in Crime No.263 of 2019 in C.C. No.830 of 2019 on the files of Judicial First Class Magistrate's Court-II, Aluva is set aside. The learned Judicial First Class Magistrate's Court-II, Aluva shall direct release of the gold articles seized in Crime No.263 of 2019 of Elamakkara Police Station on interim custody to the petitioner on the following conditions:

(i) The petitioner shall execute a bond for Rs.1,00,000/- with two solvent sureties undertaking to produce the gold articles before the court, as and when demanded.

(ii) A proper panchanama of the articles shall be prepared and photographs of the articles be taken before releasing it to the petitioner.

(iii) An undertaking shall be filed by the petitioner in the form of an affidavit before the Magistrates Court, stating that she shall not convert the gold ingots into ornaments or transfer or sell or in any manner part with the possession of the gold ingots until further orders from the jurisdictional court.

The Crl.M.C. is allowed as above.