Abdul Gafoor vs. State Of Kerala - Kerala High Court, 05 August 2019

The petitioner herein is the accused in Crime No.159 of 2019 of the Cheruplasserry Police Station registered alleging offences punishable under Sections 420, 465, 468 and 471 of the IPC.

The prosecution allegation is that the petitioner procured large quantity of Cigarettes manufactured by the Indian Tobacco Company (ITC) from out of State and after affixing printed price stickers showing an inflated price, retained the same for the purpose of sale. After registration of the crime, 23 cartons of cigarettes and articles such as price sticker sheets, glue, cello tape etc. were seized from the outhouse of the residential home of the petitioner.

The petitioner moved an application for interim custody of the articles pending final adjudication of the matter. According to the petitioner, the cigarettes, which were seized, are perishable in nature and retaining the same without due precaution will only inure to render it unusable.

The learned Magistrate dismissed the application holding that the

Crl.MC.No.4641 of 2019 ..3.. cigarette packets are material objects necessary for further investigation and identification during trial, and its release at this stage, was unwarranted.

Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

The learned Public Prosecutor submitted that investigation has revealed that the petitioner is having GST registration and in that view of the matter, the State has no objection in releasing all items except item Nos.4, 5, 8 to 11 in the search list. According to him, for a successful prosecution, those items may not be released. Insofar as rest of the items are concerned, he has no objection for their release provided, samples are collected.

In view of the above submission, I direct the court below to draw up a detailed panchanama and direct the investigating officer to take photographs of all the articles seized. Thereafter, the articles shown as item Nos.1, 2, 3, 6, 7 & 12 in the search list shall be released to the petitioner on his executing a bond for a sum of Rs.5,00,000/- (Rupees five lakhs only) with two solvent sureties each for the like sum to the satisfaction of the court below. The court below shall ensure that samples from each of the bundles released to the petitioner shall be taken. Item Nos. 4, 5, 8 to 11 in the search

Crl.MC.No.4641 of 2019 ..4.. list shall not be released under any circumstances. Within ten days of release of the articles, the petitioner shall appear before the CGST Department, Ottappalam and shall provide details of the items in his possession for further action and directions, if any, at their end. This petition will stand disposed of as above. RAJA VIJAYARAGHAVAN V., JUDGE Bka/

Crl.MC.No.4641 of 2019 ..5.. APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT DATED 30.05.2019 ANNEXURE B TRUE PHOTOCOPY OF THE LIST OF PROPERTY IN CRIME NO. 159/2019 OF CHERPULASSERY POLICE STATION ANNEXURE C TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER 11.10.2017 ANNEXURE D TRUE PHOTOCOPY OF THE TAX INVOICES DATED 15.05.2019 ANNEXURE E TRUE PHOTOCOPY OF THE TAX INVOICES DATED 22.05.2019 ANNEXURE F TRUE PHOTOCOPY OF THE WAY BILL ANNEXURE G TRUE PHOTOCOPY OF THE STATEMENT OF ACCOUNT OF THE PETITIONER FOR THE PERIOD FROM 01.05.2019 TO 31.05.2019 ANNEXURE HOF THE PETITION IN C.M.P NO.7119/2019 DATED 14.06.2019 ANNEXURE I CARBON COPY OF THE ORDER IN C.M.P NO.07119/2019 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, OTTAPALAM DATED 21.06.2019 ANNEXURE J TRUE PHOTOCOPY OF THE DECISION OF THE HON'BLE COURT APEX COURT IN SUNDERBHAI (2003 (2) KLT 1089)