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Judgment
S. Nagamuthu, J—The petitioners are the accused in Crime No. 18 of 2013, on the file of Tharuvaikulam Marine Police Station and now being on the file of the respondent. On completing the investigation in the said case, the respondent herein filed a final report before the learned Judicial Magistrate No. 1, Thoothukudi, alleging that the accused have committed the offences punishable under Sections 33, 35 and 3 read with Section 25(1B)(a), Section 7 read with 25(1 A), Section 10 read with Section 25(1B)(f) of the Arms Act, 1959 and Rule 30 of the Arms Rules, 1962, Section 36(2) read with Section 30 of the Arms Act, 1959 and Section 3(2)(d) read with 7(1)(a)(ii) of the Essential Commodities Act, 1955 and Order 2(e)(v), (vi) of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 1998 and Section 120(B) of Indian Penal Code. The final report was filed as against a total number of 45 persons, including the petitioners herein.
Seeking to quash the final report, the accused 3 to 37 in the case, filed Crl.O.P.(MD) No. 6719 of 2014, before this Court under Section 482 Cr.P.C. and the accused No. 38 filed a revision in Crl.R.C.(MD) No. 204 of 2014, challenging the order of the learned Judicial Magistrate No. 1, Thoothukudi, taking cognizance. By a common order, dated 10.07.2014, this Court quashed the final report and the consequential proceedings as against all the petitioners herein except the first petitioner. So far as, the first petitioner is concerned, this Court held that he should face the prosecution for the offence under the Essential Commodities Act alone. As against the said order of this Court, the respondent has approached the Hon''ble Supreme Court by way of Special Leave Petitions in S.L.P. (Criminal) No. 7099 of 2014 and S.L.P. (Criminal) No. 7082 of 2014. It is reported to this Court that the Hon''ble Supreme Court has ordered notice in the said Special Leave Petitions and subsequently the petitioners have appeared through their counsel and taken time for filing counter. Thus, the Special Leave Petitions are still pending on the file of the Hon''ble Supreme Court.
While so, the petitioners filed Crl.M.P. No. 4047 of 2014 before the learned Judicial Magistrate No. 1, Thoothukudi, under Section 451 Cr.P.C., for the return of their personal belongings, travel documents, such as, passport, C.D.C., educational qualification certificates, etc. These properties were all kept in the vessel, which was seized by the respondent in connection with the case. The said petition was opposed by the respondent before the learned Judicial Magistrate No. 1, Thoothukudi. By order, dated 20.08.2014, the learned Judicial Magistrate No. 1, Thoothukudi has dismissed the said petition. Challenging the same, the petitioners are before this Court with this petition.
I have heard the learned counsel appearing for the petitioners and the learned Additional Advocate General appearing for the respondent/State and I have also perused the records carefully.
As a matter of fact, the Additional Superintendent of Police, ''Q'' Branch C.I.D., Tirunelveli Range has filed a counter, in which, in paragraph No. 9, she has stated as follows:
"I humbly submit that the prosecution has not seized any of the personal belongings of the accused who have claimed the return of property. During the time of arrest, the accused were secured and the vessel was remanded to custody in Judicial Magistrate No. 1 Court, Thoothukudi. Except the documents, equipment and the arms and the ammunition that required for the investigation, nothing else was seized or recovered from the vessel and all those recovered articles were remanded to the Court. For their claim of returning their personal belongings, if left in the vessel by the accused, the prosecution is not objecting their claim to return the personal belongings to the petitioners concerned; it may be claimed through the Judicial Magistrate No. 1 Court, Thoothukudi, with which the vessel is remanded".
The Annexure - A, mentioned in paragraph No. 9 of the counter affidavit, is as follows:
"1. 35 Arms, 5682 ammunition and 102 magazines seized and assigned P.R. No. 192/13, dated: 23.10.13 in Judicial Magistrate Court No. 1, Thoothukudi.
Electronic goods a) Central Processing unit; b) Digital recorder and ship relevant documents containing pages 1 to 962 seized and assigned P.R. No. 201/13, dated:04.11.13 in Judicial Magistrate Court No. 1, Thoothukudi.
35 Passports and 35 CDC''s of 10 crew and 25 security guards seized and assigned P.R. No. 209/13, dated:14.11.13 in Judicial Magistrate Court No. 1, Thoothukudi.
Deck log book showing position of the vessel and Chief Officer Deck Log book showing detained position of vessel seized on 17.10.13 under acknowledgement.
Provisional Registration Certificate and other connected documents of M.V. Seaman Guard Ohio vessel (21 documents) seized on 19.10.13 under acknowledgement.
Security guards, arms and ammunition relevant documents containing pages from 1 to 2316 seized and memo filed before Judicial Magistrate Court No. 1, Thoothukudi on 27.10.13".
The learned Additional Advocate General, by referring to the said affidavit and also getting instructions from the Additional Superintendent of Police, ''Q'' Branch C.I.D., Tirunelveli Range, who is present before this Court, would submit that except the six items of properties described in the Annexure - A to the counter, the respondent has got no objection for the petitioners getting their personal belongings and other properties returned by the Court. The learned Additional Advocate General would submit that except these properties mentioned in the Annexure - A, all the other properties have not been seized by the respondent, as they have got no connection with the crime allegedly committed. Since the vessel was seized and produced before the Court, the personal belongings and the properties of the petitioners are also kept in the vessel, as they have got connection with the crime committed. The learned Additional Advocate General would further submit that no inventory was taken as soon as the vessel was seized to know the movable properties belonging to the petitioners kept in the vessel. Therefore, the respondent is not in a position to precisely say as to what are the personal belongings and other properties of the petitioners, which are kept in the ship. However, the learned Additional Advocate General would submit that the available properties and the personal belongings of the petitioners may be ascertained by the Magistrate and after acknowledging them, may be returned to the petitioners, for which the respondent has no objection at all. The said statement is recorded.
Some of the petitioners are also present before this Court, of whom, some are foreign citizens and some are Indians. On instructions from them, the learned counsel appearing for the petitioners would submit that even the petitioners are not in a position to precisely say as to what are all the properties or personal belongings of the petitioners, which are kept in the vessel. She would submit that whatever is the property which they have left in the vessel, which have got no connection with the crime allegedly committed, may be returned to them by taking an inventory, under acknowledgement from them. This statement is recorded.
It is reported to this Court that the petitioners are suffering a lot for the past two years without any income and without any means of livelihood and if these personal belongings are returned to them, according to the learned counsel, they will manage to sustain themselves.
From the above narration of facts and the counter affidavit of the respondent, it is crystal clear that the respondent has got no objection for the petitioners in getting their personal belongings and other properties which are kept in the vessel, returned to them by the learned Judicial Magistrate No. 1, Thoothukudi under acknowledgement. But at the same time, in my view, on opening some lockers in the vessel, if it is found that there are objectionable properties, then, those properties cannot be returned to the petitioners. In order to ascertain the same, in my considered view, it is in the interest of justice, to direct the learned Judicial Magistrate No. 1, Thoothukudi himself to go to the vessel, allow the petitioners to open their boxes, safety lockers, etc. belonging to them, take inventory of the properties, which are kept there, return them to the respective petitioners under acknowledgement. But while doing so, if any property, which is found, is objectionable, the respondent may raise objection and such objectionable properties shall not be returned by the learned Judicial Magistrate No. 1, Thoothukudi, without getting further orders from this Court. The respondent, namely, Additional Superintendent of Police, ''Q'' Branch C.I.D., Tirunelveli Range shall also be present at the time, when the properties are returned to the petitioners in the vessel itself. The learned Judicial Magistrate No. 1, Thoothukudi shall issue notice to the respondent and the petitioners about the date and time of his visit to the vessel and to return the properties as indicated above. The Port Trust Authorities shall permit the petitioners and their counsel and the respondent to go into the vessel and to take the properties as indicated above in the presence of the learned Judicial Magistrate No. 1, Thoothukudi. Since, it is submitted to this Court that the properties other than the properties enumerated in the Annexure - A appended to the counter, are not objectionable properties which have got nothing to do with the crime allegedly committed by the petitioners and since these properties are not going to be used for any purpose in the case, I am inclined to pass this order returning the said properties to the respective petitioner.
Having regard to all the above facts and circumstances of the case, I am inclined to pass the following order:
"(i) The learned Judicial Magistrate No. 1, Thoothukudi shall cause notice to the petitioners and the respondent fixing a date and time, preferably, on a Saturday, to return the properties as per this order. The learned Magistrate may issue notice to the respective counsel.
(ii) On the appointed date, the Port Trust Authorities shall permit the petitioners, their counsel, the respondent and their counsel and the learned Judicial Magistrate No. 1, Thoothukudi to go into the vessel (Seaman Guard Ohio) stationed at Thoothukudi Port for the purpose of returning the properties.
(iii) In the vessel, the lockers, safe boxes, etc. shall be opened in the presence of the petitioners and the respondent and the learned Judicial Magistrate No. 1, Thoothukudi shall take inventory of the personal belongings of the petitioners and their other movable properties kept in the vessel.
(iv) After inventory is taken, if any property is found objectionable, the respondent may object to the same and if any objection is so raised, that property shall not be returned and instead the same, shall be kept in the vessel itself under lock and key by the learned Judicial Magistrate No. 1, Thoothukudi, awaiting further orders from this Court.
(v) The learned Judicial Magistrate No. 1, Thoothukudi shall return all the other personal belongings of the petitioners and other movable properties including educational qualification certificates to the respective petitioner under acknowledgement.
(vi) The learned Judicial Magistrate No. 1, Thoothukudi shall not return the six items of properties mentioned in Annexure-A appended to the affidavit filed by the respondent and extracted herein above."
In the result, the impugned order passed in Crl.M.P. 4047 of 2014 by the learned Judicial Magistrate No. 1, Thoothukudi is set aside in part and the Criminal Revision Case is disposed of with the directions as indicated above.