ANIL KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The second accused in CC No. 1599/2017 pending before the Judicial First Class Magistrate Court -III, Punalur for offences punishable under sections 56(A) and (b) of Abkari Act, aggrieved by the order of the Learned Magistrate in CMP No. 2877/2017 refusing to lift the attachment of his property, has approached this Court challenging that order.

(2.) The petitioner herein along with the mother were arrayed as accused on an allegation that, on 18/10/2011, the accused were found in possession of Arishtam and Asavam and thereby they committed offences punishable under the Kerala Abkari Act.After investigation, final report was laid. Since the petitioner herein was not available, non bailable warrant was issued and steps under sections 82 and 83 of the Cr.P.C.were ordered. The properties, having an extent of 37.03 Ares in Re.Sy No.170/2/7 and 144/1/15 of Piravanthoor village, were attached by order of the Magistrate. Pending the proceedings, the first accused died and the charge against her abated. The petitioner herein surrendered in 2017 and was released on bail. Thereafter, he filed CMP No.2877/2017 before the Magistrate praying to lift the attachment of the property. The above application was dismissed by the learned Magistrate holding that the application was filed after a lapse of 8 years from the date of the attachment and in view of Section 85(3) Cr.P.C, the property vested with the Government and the accused cannot, after expiry of two years from the date of the attachment of the property, request to lift the attachment and to release the property. It was held that, the remedy available to the accused for lifting the attachment was to make a request to Government to release the property. The petitioner has to file an application before the District Collector for lifting the attachment, since the property vested with the Government, it was held. Aggrieved by the above order, the 2nd accused has preferred this Crl.M.C.

(3.) Heard both sides and examined the records.