Kerala High Court
Muhammed Raoof V.H vs State Of Kerala on 12 April, 2024
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.MC NO. 550 OF 2020
CRIME NO.1/2019 OF VACB, ERNAKULAM, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.483 OF 2019
OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR
PETITIONER/S:
SAJITHA V.P
AGED 47 YEARS
W/O.HAMZA, VELLIYAPPANTHODI HOUSE,
KARUMANAKURUSSI P.O., PALAKKAD-679503.
BY ADVS.
K.ANAND
SRI.BENNY ANTONY PAREL
SRI.T.M.MUHAMED HAFEES
RESPONDENT/S:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM-682031.
2 THE SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU,
SPECIAL CELL, ERNAKULAM-682017.
3 THE INVESTIGATING OFFICER,
VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL
CELL, ERNAKULAM-682017.
BY SRI A RAJESH SPECIAL GOVERNMENT PLEADER
(VIGILANCE)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 12.04.2024, ALONG WITH Crl.MC.523/2020,
9082/2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 523 OF 2020 & conn. cases
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.MC NO. 523 OF 2020
CRIME NO.1/2019 OF VACB, ERNAKULAM, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.482 OF 2019
OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR
PETITIONER/S:
MUHAMMED RAOOF V.H.,
AGED 23 YEARS
S/O.V.HAMZA,VELLIYAPPANTHODI HOUSE,
KARUMANAKURUSSI P.O., PALAKKAD - 679 504.
BY ADVS.
K.ANAND
SRI.BENNY ANTONY PAREL
SRI.T.M.MUHAMED HAFEES
RESPONDENT/S:
1 STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
2 THE SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL
CELL, ERNAKULAM - 682 017.
3 THE INVESTIGATING OFFICER,
VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL
CELL, ERNAKULAM - 682 017.
BY SRI A RAJESH SPECIAL GOVERNMENT PLEADER
(VIGILANCE)
CRL.MC NO. 523 OF 2020 & conn. cases
..3..
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 12.04.2024, ALONG WITH Crl.MC.550/2020 AND
CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 523 OF 2020 & conn. cases
..4..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.MC NO. 9082 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 10.02.2023 IN CRMP
NO.189 OF 2021 OF ENQUIRY COMMISSIONER& SPECIAL
JUDGE,THRISSUR
PETITIONER/S:
A.RABIA
AGED 46 YEARS
W/O. ADBUL JALEEL S.K.BUILDING, PEROOR
PATHIRAPPALA, PALAKKAD, PIN - 670930
BY ADVS.
RAVI KRISHNAN
FEBA M. VARGHESE(K/004041/2023)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, COCHIN, PIN - 682031
2 THE SUPERINTENDENT OF POLICE
VIGALANCE AND ANTI-CORRUPTION BUREAU SPECIAL
CELL, ERNAKULAM, PIN - 682017
3 T.U.SAJEEVAN
DEPUTY SUPERINTENDNET OF POLICE VIGILANCE AND
ANTI-CORRUPTION BUREAU SPECIAL CELL, ERNAKULAM,
PIN - 682017
4 MUHAMMED IJAS
CRL.MC NO. 523 OF 2020 & conn. cases
..5..
S/O. ABDUL JALEEL S.K. BUILDING,PEROOR
PATHIRAPPALA,PALAKKAD, PIN - 679302
5 MUHAMMED ROUF
S/O.HAMSA ,VELLAYAPPAN THODIYIL HOUSE OTHINGODE,
THIRUNELLAI P.O. PALAKKAD, PIN - 678004
6 SAJITHA
W/O. HAMSA ,VELLAYAPPAN THODIYIL HOUSE
OTHINGODE,THIRUNELLAI P.O. PALAKKAD, PIN -
678004
7 V.HAMSA
S/O.KUNJAPPU, VELLAYAPPAN THODIYIL HOUSE
OTHINGODE,THIRUNELLAI P.O. PALAKKAD -678004, PIN
- 678004
BY SRI A RAJESH SPECIAL GOVERNMENT PLEADER
(VIGILANCE)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 12.04.2024, ALONG WITH Crl.MC.550/2020 AND
CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 523 OF 2020 & conn. cases
..6..
K.BABU, J.
--------------------------------------
Crl.M.C.Nos.523, 550 of 2020 & 9082 of 2023
---------------------------------------
Dated this the 12th day of April, 2024
ORDER
The petitioners are claim petitioners in
V.C.No.01/2019/SCE on the file of Court of the Enuqiry
Commissioner and Special Judge, Thrissur. One Shri
Hamza, a former Deputy Superintedent of Police is the
accused in the above case. On 09.07.2019, the Vigilance
registered FIR alleging offences punishable under Section
13(2) r/w 13(1)(e) of the Prevention of Corruption Act,
1988 and Section 13(2) r/w 13(1)(b) of Prevention of
Corruption (Amendment) Act, 2018. On 11.07.2019, the
Investigating Officer searched the residence of the
accused after obtaining search warrant from the Special
Court. 60 articles were seized from the residence of Shri.
CRL.MC NO. 523 OF 2020 & conn. cases
..7..
Hamza. The investigating agency also seized
Rs.9.65,365/- in hard currency and 188.4 gms of gold
ornaments.
2. The petitioner in Crl.M.C. No.550 of 2020 is the
wife of Shri. Hamza, the accused. The petitioner in
Crl.M.C. No.523 of 2020 is his son. The petitioner in
Crl.M.C.No.9082 of 2023 is a close relative of the
accused.
Pleadings
3. The petitioner is the wife of the accused. Their
son Mohammed Raoof is a medical student. In order to
meet the educational expenses of their son, the petitioner
entered into an agreement to sell a landed property
belonged to her to one Shri. Rafi. As per the agreement
for sale, Shri. Rafi had given Rs.5,00,000/- towards
advance sale consideration on 02.09.2018. On
CRL.MC NO. 523 OF 2020 & conn. cases
..8..
09.05.2019, he gave her Rs.3,00,000/- towards advance.
On the request of the petitioner, Rafi gave an amount of
Rs.2,00,000/- as advance sale consideration on
10.07.2019. Out of this amount, a sum of Rs.2,70,000/-
was seized by the Investigating Officer from her
residence. The Investigating agency also seized gold
ornaments that belonged to the petitioner. She is entitled
to the custody of the money and gold ornaments.
4. The petitioner is the son of the accused. He is
studying for MBBS course in Osh State University,
Kyrgyztan. The Vigilance seized a sum of Rs.2,00,000/-
given to the petitioner by the brother of his father Shri.
Muhammedali to meet his educational expenses.
Sakeena W/o Shri. Muhammedali had obtained a loan for
an amount of Rs.3,00,000/- from the Kerala State
Backward Class Development Corporation Ltd and it was
CRL.MC NO. 523 OF 2020 & conn. cases
..9..
out of that amount availed by way of loan, the sum of
Rs.2,00,000/- was given to the petitioner by
Muhammedali. Another sum of Rs.1,00,000/- given by
Smt. Sayeedha, the sister of his mother was also seized
by the investigating agency from his residence. The
petitioner seeks the interim custody of Rs.3,00,000/-.
5. The petitioner was residing in a rented house.
Her son is studying for MBBS Course. On 09.06.2019,
the petitioner had to unexpectedly rush to Tamil Nadu in
connection with the marriage of her sister's son. Due to
lack of security, she had entrusted Rs.3,50,000/- and 10
soveriegns of gold ornaments at the residence of the
accused. She is the absolute owner of those properties.
The Vigilance recovered the money and gold ornaments
in a search conducted at the residence of the accused.
She is entitled to the interim custody of the properties.
CRL.MC NO. 523 OF 2020 & conn. cases
..10..
Counter
6. The petitioner, the wife of the accused, has
been residing with him and their children at House
No.36/87(2a), Thumbilimedu, Palakkad. When the search
team arrived at the residence of the accused, the
petitioner and other members of the family, except her
husband, were present. The petitioner has given a wrong
address in the affidavit sworn to by her. The gold
ornaments noted as items 1 to 9 in the search list were
returned to the petitioner on proper acknowledgment on
the date of search itself. The contention of the petitioner
that one Shri. Rafi gave a sum of Rs.2,00,000/- under a
sale agreement in respect of a landed property is false.
The case of the petitioner is that on the day immediately
prior to the search, she had entered into an agreement
for sale is false. The petitioner is not cooperating with
CRL.MC NO. 523 OF 2020 & conn. cases
..11..
the investigating team. The accused, during the search,
had raised a claim that the properties including the
private car, Indian currency and gold ornaments belonged
to his relatives and friends.
7. The claim of the petitioner that a sum of
Rs.3,00,000/- recovered from the residence of the
accused belonged to her and the same was gifted by his
relatives to meet his educational expenses is false. The
investigating agency verified the bank account
statements and found no material to support the case of
the petitioner. The claim of the petitioner is false.
8. According to the petitioner, 10 sovereigns of
gold ornaments and a sum of Rs.3,50,000/- recovered
from the residence of the accused belong to her. Her
claim is that she sold her landed property and invested
CRL.MC NO. 523 OF 2020 & conn. cases
..12..
some amount in a co-operative bank and withdrew the
fixed deposit in February, 2019. Her further claim is that
she entrusted a sum of Rs.3,50,000/- including the
amount withdrawn from the fixed deposit account and 10
sovereigns of gold ornaments with Shri. Muhammed
Raoof, the son of the accused, for safe custody on
09.06.2019. This contention cannot be accepted at any
rate as she had kept the money and gold ornaments with
her right from February 2019. The petitioner has also
failed to establish any material to prove the ownership of
the gold ornaments. The 'estimates' produced by her
purportedly issued from the Josco Jewellary and Akshaya
Jewellary do not match with the gold ornaments seized
from the house of the accused.
9. The properties recovered from the residence of
the accused are liable to be proceeded against and
prosecuted under the provisions of the Criminal Law
CRL.MC NO. 523 OF 2020 & conn. cases
..13..
Amendment Ordinance 1944 as provided in Section 18A
of the PC Act.
10. After appreciating the rival contentions, the
Special Court rejected the applications filed by the
petitioners essentially on the following grounds:-
(a)The petitioner failed to prima facie establish
that the properties seized from the residence of
the accused belonged to them.
(b)The properties are laible to be prosecuted
against as provided in Section 18A of the PC Act.
11. In the search conducted at the residence of the
accused, the Investigating Agency seized Rs.9,65,365/- in
hard currency and 188.4gms of gold ornaments. All the
gold ornaments seized were returned to Sajitha, the
petitioner in Crl.M.C.No.550 of 2020.
12. The seized Indian Currency worth Rs.9,65,330/-
was recovered from various places and from separate
CRL.MC NO. 523 OF 2020 & conn. cases
..14..
bags and covers kept in the bed room of the accused, the
details of which are given below:-
Sl Places where the amount was recovered Amount
No
1 Travel bag Recovered from a travel bag which was Rs.5000.00
kept in the bed room
2 Travel bag Recovered from a brown cover kept in a Rs.24,000.00
travel bag
3 Wooden Recovered from a purse kept in a wooden Rs.9,330.00
Cupboard cupboard
4 Suitcase Recovered from a black bag kept in suit Rs.27,000.00
which was case
hidden inside
a closet under
the wooden
cot
5 do Recovered from the suitcase which was Rs.2,00,000.00
covered with old newspaper
6. Do Recovered from a cover with prinited Rs.50,000.00
letters such as "Hotel Gopalapuram
International"
7 Do Recovered from an envelope having letters Rs.1,00,000.00
namely "Methil Vijayan"
8 Do Recovered from another brwon envelope Rs.2,00,000.00
9 Do Recovered from a brown envelope having Rs.2,00,000.00
letters namely "Cheif Minister"
10 Do Recovered from a small brown envelope Rs.50,000.00
11 Do Recovered from another envelope having Rs.2,00,000.00
letters namely "Krishnankutty"
TOTAL Rs.9,65,330.00
13. The case of the petitioner in Crl.M.C.No. 550 of
2020 is that she had received a sum of Rs.3,00,000/-
CRL.MC NO. 523 OF 2020 & conn. cases
..15..
under an agreement for sale in respect of a property from
one Shri. Rafi for meeting the expenses of the education
of her son. It is strange to note that the sale agreement
stated to have been executed by her was on 10.07.2019,
the day immediately prior to the search. The
investigating agency pleaded that she is not cooperating
with the investigation. She could not be questioned so
far. There are no convincing material to show that the
petitioner had received money as per the agreement for
sale.
14. The case of the petitioner in Crl.M.C.No.523 of
2020 that she had received a sum of Rs.3,00,000/- from
her relatives to meet educational expenses is also not
substantiated by any convincing materials. The plea
raised by the petitioner in Crl.M.C.No.9082 of 2023 that
she had kept the money and gold ornaments at the
residence of the accused for keeping it in safe custody is
CRL.MC NO. 523 OF 2020 & conn. cases
..16..
not prima facie believable. It is pertinent to note that she
had been keeping this amount right from February, 2019
whereas the alleged search occurred on 11.07.2019. It is
the case of the petitioner that she entrusted the money
and gold ornaments at the residence of the accused
immediately prior to the search as she had to attend a
marriage in Tamil Nadu. The major portion of the cash
was recovered from suit cases and bags hidden inside a
closet under a wooden cot. This itself indicates that
prima facie the money does not belong to the petitioners
herein and it is the proceeds of the crime. The major
contention of the prosecution is that the attempt of the
petitioners is to torpedo the investigation. The
prosecution could prima facie establish that the valuables
seized from the possession of the accused are the
proceeds of the crime. As per Section 18A of the PC Act,
the provisions of Criminal Law Amendment Ordinance,
CRL.MC NO. 523 OF 2020 & conn. cases
..17..
1944 which deal with attachment and confiscation of
money or other valuable property by means of an offence
under the PC Act are applicable. Section 451 of the
Cr.P.C. enables the Courts to pass orders for the interim
custody and disposal of the property during the enquiry
or trial essentially to see that the owner of the article
would not suffer because of its remaining unused or by its
misappropriation. The Indian currency notes recovered
from the possession of the accused have been remitted in
the Government Treasury. There is no question of any
prejudice to be caused to the petitioners.
15. The petitioners would not suffer any prejudice
as the currency notes have been deposited in the
Government Treasury. The case of the prosecution that
the properties seized are liable to be proceeded under the
Criminal Law Amendment Ordinance 1944 r/w Section
18A of PC Act.
CRL.MC NO. 523 OF 2020 & conn. cases
..18..
16. It is important to note that the accused had
earlier filed Crl.M.C.No.5275 of 2019 before this Court
challenging the credibility of the investigation which this
Court dismissed holding that there is nothing apparent to
indicate that the Investigation is anyway affected with
any malafides. It is also pertinent to note that the
petitioner in Crl.M.C.No.550 of 2020 and three others had
filed W.P. (C) No.27177 of 2019 before this Court seeking
a direction to ascertain whether the properties belong to
her which was also dismissed by this Court as per
judgment dated 08.07.2021.
17. The learned Counsel for the petitioners Shri.
Anand relied on Suresh Serve V. v. State of Kerala
[2020 (3) KHC 41] and Sunderbhai Ambalal Desai v.
State of Gujarat [(2002) 10 SCC 283] to substantiate his
contentions.
18. In Sunderbhai Ambalal Desai (Supra), the
CRL.MC NO. 523 OF 2020 & conn. cases
..19..
Supreme Court directed the disposal of the properties in
case where the material on record indicates that the
articles including currency belong to the claim petitioners
or the complainant at whose house theft, recovery or
dacoity has taken place be handed over to them. In
Suresh Serve (Supra) a Division of Bench of this Court
following Sunderbhai Ambalal Desai (Supra) held that
currency notes could be returned to the claimants if they
could establish a prima facie right to get them. The facts
in the present case are distinguishable from the facts
considered in Sunderbhai Ambalal Desai and Suresh
Serve.
19. The Crl.M.C.s fail on the following grounds:-
(a)The prosecution could prima facie establish
that the valuables were recovered from the
possession of the accused.
(b)The prosecution could prima facie establish
CRL.MC NO. 523 OF 2020 & conn. cases
..20..
that the valuables are the proceeds of crime.
(c)The petitioners failed to establish that they
have any right over the valuables seized from
the possession of the accused.
(d)Prosecution could further prima facie establish
that the petitioners who are the close relatives
of the accused are trying to torpedo the
investigation with intent to save the accused.
The Crl.M.Cs stand dismissed.
Sd/-
K.BABU,
JUDGE
kkj
CRL.MC NO. 523 OF 2020 & conn. cases
..21..
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE ADMISSION LETTER
DATED 30/06/16 ISSUED BY THE OSH STATE
UNIVERSITY.
ANNEXURE A2 TRUE COPY OF THE BONAFIDE CERTIFICATE
DATED 06/04/19 ISSUED BY THE OSH STATE
UNIVERSITY.
ANNEXURE A3 TRUE COPY OF THE FIR
NO.V.C.NO.1/19/SCE DATED 09/07/19.
ANNEXURE A4 TRUE COPY OF THE SEARCH LIST OF VACB
CELL, ERNAKULAM.
ANNEXURE A5 TRUE COPY OF LOAN DETAILS OF THE LOAN
ACCOUNT NO.090201489.
ANNEXURE A6 TRUE COPY OF THE AFFIDAVIT SWORN BY
THE MOHAMMEDALI DATED 02/08/2019.
ANNEXURE A7 TRUE COPY OF THE AFFIDAVIT SWORN IN BY
THE SAYEEDHA V.P. DATED 02/08/2019.
ANNEXURE A8 TRUE COPY OF THE ORDER IN
CRL.MP.NO.482/2019 DATED 21/11/2019
BEFORE THE COURT OF ENQUIRY
COMMISSIONER & SPECIAL JUDGE,
THRISSUR.
CRL.MC NO. 523 OF 2020 & conn. cases
..22..
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE FIRST INFORMATION
REPORT AND MAHAZER IN VC 1/19/SCE OF
VIGILANCE AND ANTI-CORRUPTION
BUREAU ,SPECIAL CELL ERNAKULAM
Annexure A2 TRUE COPY OF THE BONAFIDE CERTIFICATE
ISSUED BY THE MINISTRY OF EDUCATION
AND SCIENCE, KYRGYZ REPUBLIC
Annexure A3 TRUE COPY OF THE RECEIPT ISSUED BY THE
PALAKKAD DISTRICT POLICE DEPARTMENT
EMPLOYEES COOPERATIVE SOCIETY LIMITED
NO.P-1021
Annexure A4 TRUE COPY OF ESTIMATE DATED 15.10.2011
ISSUED BY THE JOSCO JEWELLERY
Annexure A5 TRUE COPY OF ESTIMATE DATED 30.11.2017
ISSUED BY THE AKSHAYA JEWELLERY
Annexure A6 TRUE COPY OF THE ORDER DATED
21.11.2019 IN CRL.M.P. NO. 480 OF 2019
IN VC NO.1/2019 /SCE IN ON THE FILES
OF ENQUIRY COMMISSIONER AND SPECIAL
JUDGE( VIGILANCE), THRISSUR
Annexure A7 TRUE COPY OF THE ORDER DATED 18.3.2021
IN CRL.R.P. NO 91/2020 OF THIS HON'BLE
COURT
Annexure A8 TRUE COPY OF THE APPLICATION UNDER
SECTION 451 OF CODE OF CRIMINAL
PROCEDURE BEFORE THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE)
Annexure A9 TRUE COPY OF THE ORDER DATED 10.2.2023
IN CRL.M.P.NO. 189/2021 IN VC
NO.1/2019 /SCE IN CRL.M.P. NO.480 OF
2019 ON THE FILES OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE),THRISSUR
CRL.MC NO. 523 OF 2020 & conn. cases
..23..
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE ADMISSION LETTER
DATED 30.06.16 ISSUED BY THE OSH STATE
UNIVERSITY.
ANNEXURE A2 TRUE COPY OF THE BONAFIDE CERTIFICATE
DATED 06.04.19 ISSUED BY THE OSH STATE
UNIVERSITY.
ANNEXURE A3 TRUE COPY OF THE AGREEMENT DATED
03.09.2018.
ANNEXURE A4 TRUE COPY OF THE FIR
NO.V.C.NO.1/19/SCE DATED 09.07.19.
ANNEXURE A5 TRUE COPY OF THE SEARCH LIST OF VACB
CELL, ERNAKULAM.
ANNEXURE A6 TRUE COPY OF THE STATEMENT OF LAND AND
PROPERTY, SHARES IN COMPANIES AND
OTHER INVESTMENT HELD BY V.HAMZA, HIS
WIFE, RELATIVES OR FRIENDS FOR THE
YEAR 2016 SUBMITTED BY V.HAMZA.
ANNEXURE A7 TRUE COPY OF THE ORDER IN
CRL.M.P.NO.482/2019 DATED 21.11.2019
BEFORE THE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
THRISSUR.
