Madras High Court
Michael Raj vs Prakash on 3 December, 2014
Author: T.S.Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.12.2014 Date of Reserving the Order Date of Pronouncing the Order 24.11.2014 03.12.2014 Coram The Hon'ble Mr. Justice T.S. SIVAGNANAM CONT.P.NO.2470 OF 2014 Michael Raj .. Petitioner Vs. Prakash, Inspector of Police, CSCID, Thiruvallur Unit, (Crime No.11 of 2014) .. Respondent PRAYER: Contempt Petition filed under Section 11 of the Contempt of Courts Act 1971, to punish the respondent for willful disobedience of the order passed by this Court in Crl.R.C.No.279 of 2014, dated 29.04.2014. For Petitioner : Mr.R.Shanmughasundaram Senior Counsel for Mr.L.Baskaran For Respondent : Mr.S.Shanmugha Velayutham Public Prosecutor assisted by Mr.V.Arul G.A., (Crl.Side) O R D E R
This petition filed under Section 11 of the Contempt of Courts Act is to punish the respondent, Inspector of Police, CSCID, Thiruvallur Unit, for willful disobedience of the order and direction issued by this Court in Crl.R.C.No.279 of 2014, dated 29.04.2014 .
2. The Criminal Revision case filed under Section 397 read with Section 401 of the Code of Criminal Procedure was directed against the order, dated 25.02.2014, made in C.M.P.No.812 of 2014, on the file of the Judicial Magistrate-I, Tiruvallur.
3. An F.I.R., was registered by the respondent Police in Crime No.11 of 2014, dated 16.01.2014, for alleged offences under Section 6(4) of TNSC(RDCS) Order 1982 read with 7(1)(a)(ii) of the Essential Commodities Act, 1955, (E.C.Act). The petitioner's Toyota Innova car, bearing registration No.TN.05-AK-9099, was seized on the allegation of illegal transportation of 12 bags of rice meant for public distribution each weighing about 50kgs. The petitioner moved the Judicial Magistrate by filing C.M.P.No.812 of 2014, under Sections 451 and 457 of the Code of Criminal Procedure for interim custody of the vehicle. The petitioner contended that the vehicle was stolen and somebody else had used the vehicle for illegally transporting PDS rice. The petitioner contended that he is no way connected with the alleged illegal transport of rice and therefore, he should be granted interim custody of the vehicle.
4. Prosecution resisted the petitioner's prayer contending that the accused is still absconding and steps are being taken for initiation of confiscation proceedings under Section 6(A) of the E.C.Act. The Court below observed that in the light of the express bar under Section 6(E) of the E.C., Act, the Court does not have the jurisdiction to pass any orders with regard to the possession, delivery, disposal, release of the vehicle and any order passed releasing the vehicle would amount to impeding into the domain of the competent authority under the E.C., Act. By relying upon the decision of this Court in Cont.P.No1156 of 2006, dated 08.01.2010, it was pointed out that where seizure of vehicle involved in an offence of prohibition reported to the Magistrate, exercise of discretion and ordering of interim custody under Section 451 or 457 Cr.P.C., is not automatic. The Court observed that though the said decision was pertaining to an offence under the Tamil Nadu Prohibition Act, Section 14 of the said Act, is analogous to Section 6 of the E.C., Act. Though the Court recorded the contention of the petitioner that the vehicle was stolen and subsequently, alleged to have been used for transportation of PDS rice, declined to exercise discretion in the light of Section 6(E) of the E.C., Act. Accordingly, by order dated 25.02.2014, the petition was dismissed. Challenging the same, the petitioner preferred the Criminal Revision before this Court.
5. It was contended that though the prosecution took a stand that they have taken steps to initiate confiscation proceedings under Section 6(E) of the E.C., Act, the vehicle has not been confiscated and the Court below ought to have considered the scope and ambit of Section 451 Cr.P.C. Further, it was contended that the petitioner is not an accused and there is no impediment in returning the vehicle to the petitioner and if the vehicle is kept idle, it will erode in its value. Further, it was contended that when there was no dispute as regards the ownership, the Court should have directed interim custody of the vehicle to the petitioner. Further, with regard to the decision in Cont.P.No.1156 of 2009, dated 08.01.2010, which was relied on by the learned Magistrate, it was contended that even in the said decision, it was observed that the Court has to exercise discretion judiciously with due care and caution. Further, it was contended that a complaint has been filed before the Tamil Nadu Human Rights Commission against the respondent Police for illegally taking away the vehicle for attacking the driver and foisting the case against him.
6. The prosecution reiterated the stand taken before the Judicial Magistrate Court and contended that the order passed by the learned Magistrate is perfectly legal and valid.
7. On considering the rival contentions, the moot question, which fell for consideration was whether confiscation proceedings under the E.C.,Act was initiated when the petitioner moved for interim custody of the vehicle, when the undisputed fact was that the vehicle was not confiscated on the date when the petitioner filed the petition before the learned Judicial Magistrate or on the date when the Criminal Revision case was filed before this Court.
8. In order to verify the correct factual position, this Court called upon the learned Government Advocate to state his version after getting instructions from the respondent Police. Accordingly, the respondent Police was present in Court and on instructions copy of the notice dated 17.04.2014, issued by the District Supply Officer to the petitioner calling upon him to appear for the purpose of considering the release of the vehicle was produced. The said notice was said to have been sent to the address given in the registration certificate of the vehicle. On perusal of copy of the notice produced, this Court observed that upto 17.04.2014, no confiscation proceedings were initiated. Therefore, this Court held that the observations made by the Trial Court appears to be factually incorrect. That apart, when the revision petition was entertained by this Court, no confiscation proceedings were initiated and after the revision was adjourned on more than three occasions, it was seen that notice was sent only on 22.04.2014, which was evident from the postal endorsement in the postal cover. The said notice was returned with the endorsement no such addressee. Taking note of the fact that the petitioner has been agitating the matter and he has given his address in the petition, this Court observed that on the date when the petition was filed before the learned Magistrate, no confiscation proceedings were pending and even when the Criminal Revision was entertained by this Court, no proceedings were pending and as an after thought, notice has been issued. Further, observing that mere issuance of notice, after this Court entertained the Criminal Revision case, cannot be considered as a bar under Section 6(E) of the E.C.Act to proceed to consider whether the petitioner shall be entitled for interim custody of the vehicle. Thus, taking note of the peculiar facts and circumstances of the case, this Court passed the order dated 29.04.2014, granting interim custody of the vehicle subject to the following conditions:-
a) the petitioner shall prove his ownership of the vehicle by producing the R.C. Book and other relevant records and the trial court can return the original R.C. Book after taking Xerox copy of the same;
b) the petitioner shall not alienate or encumber the vehicle in any manner ;
c) the petitioner shall produce a Fixed Deposit Receipt for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) taken in any one of the Nationalised Bank for a period of one year standing on his name before the Court concerned; and
d) the petitioner shall give an undertaking that he will not use the vehicle for any illegal activities in future;
e) the petitioner shall also produce the vehicle as and when required by the respondent police; and
f) the trial court is directed to inform about the involvement of the vehicle in the crime, seizure and return of the vehicle by the orders of this Court to the Registering Authority.
9. The petitioner has filed this Contempt Petition stating that as per the orders passed by this Court, the petitioner produced Fixed Deposit receipt for a sum of Rs.2,00,000/- before the learned Judicial Magistrate, who received the same and directed the respondent Police to produce the vehicle on 07.05.2014. Subsequently, the matter was adjourned to 12.05.2014 and again adjourned to 14.05.2014, 16.05.2014, 27.05.2014 and 30.05.2014 and since the vehicle was not produced before the learned Magistrate, the petitioner stated that the respondent Police willfully disobeyed the order and direction issued by this Court in Criminal R.C.No.279 of 2014.
10. The learned Senior counsel appearing for the petitioner after reiterating the factual contentions submitted that the action of the respondent Police is a deliberate disobedience of the order passed by this Court and he is liable to be punished. In support of his contention reliance was placed on the decision of the Hon'ble Supreme Court in the case of State of M.P., vs. Rameshwar Rathod reported in (1990) 4 SCC 21, and submitted that the jurisdiction of the Criminal Court is not completely ousted going by the language used in Section 6(A) and 7 of the E.C., Act.
11. The learned Public Prosecutor by relying upon the counter affidavit filed by the respondent submitted that at the out set the respondent tenders unconditional apology before this Court and there is neither willful nor deliberate intention to disobey the order of this Court. It is submitted that the vehicle in question was seized, as it was found carrying 12 bags of PDS rice and the case was registered in Crime No.11 of 2014 on 16.01.2014 and the matter was taken up for investigation. The seized rice bags were handed over to the Tamil Nadu Civil Supplies Corporation godown, Tiruvallur with a requisition to the Quality Inspector to furnish a certificate after verifying the sample of the seized rice. Such certificate was issued on 23.01.2014, confirming that the seized rice is meant for public distribution.
12. The respondent Police on 20.01.2014, made a requisition to Regional Transport Officer, Kolathur to verify and furnish correct address of the owner of the vehicle. After obtaining the address, the respondent has made a requisition to the District Revenue Officer, Tiruvallur along with the vehicle for confiscation proceedings of both the PDS rice and the vehicle. It is further submitted that on 04.02.2014, the Revenue Divisional Officer confiscated the PDS rice. While the matter was pending before the District Revenue Officer as regards the confiscation of the vehicle, the petitioner moved the learned Judicial Magistrate by filing a petition for return of the vehicle, which was dismissed. As against which, the petitioner filed the Criminal R.C.No.279 of 2014, before this Court. Further, it was submitted that the petitioner filed Crl.O.P.No.11146 of 2014, before this Court to quash the Crime No.11 of 2014 and also sought for stay of all further proceedings. This Court while entertaining the quash petition, by order dated 15.05.2014, granted interim stay till 05.06.2014 and notice was ordered to the respondent therein. Subsequently, the interim order was extended until further orders by order dated 15.09.2014. It is stated that the District Revenue Officer, found that the address of the petitioner is false and after ascertaining the correct address at Nagari, notice was served to the petitioner by the District Revenue Officer. In response to such notice, the petitioner appeared before the District Revenue Officer, Tiruvallur on 09.09.2014 and his statement was recorded. The valuation of the vehicle was also obtained from the Regional Transport Officer, Tiruvallur. The District Revenue Officer passed an order on 29.10.2014, imposing a fine of Rs.5,60,000/- as condition precedent for release of the vehicle. It is stated that the said order was forwarded by registered post to the petitioner and since the petitioner did not remit the fine amount, the vehicle is still in the custody of the District Revenue Officer, Tiruvallur. Therefore, it is submitted by the respondent Police that the order passed by this Court in Crl.R.C.No.279 of 2014, could not be complied by him as the vehicle has already been confiscated by order dated 29.10.2014. Therefore, the respondent Police pleads genuine inability to comply with the directions issued by this Court and there is no deliberate or contumacious disobedience of the Court order.
13. The learned Public Prosecutor relied on the decision of the Hon'ble Supreme Court in the case of Kapildeo Prasad Sah & Ors., vs. State of Bihar & Ors., reported in (1999) 7 SCC 569, and Ashok Paper Kamgar Union vs. Dharam Godha & Ors., reported in (2003) 11 SCC 1, stating that in cases were there is no willful disobedience, it would not amount to committing contempt of the order passed by this Court.
14. After hearing the learned counsels appearing for the parties and perusing the materials placed on record, it is seen that the respondent Police pleads inability to comply with the order in the light of the order of confiscation passed by the District Revenue Officer, Tiruvallur, dated 29.10.2014. It is true that the said confiscation proceedings was subsequent to the order passed by this Court on 29.04.2014. From the averments made in the counter affidavit, it is seen that the address given by the petitioner is said to be a false address and notice could not be served on the petitioner by the District Revenue Officer and after ascertaining the correct address at Nagari, notice was served and the petitioner on receipt of the notice the petitioner appeared before the authority on 09.09.2014, i.e., after the filing of this Contempt Petition, which was filed before this Court on 27.07.2014. The petitioner having participated in the proceedings before the District Revenue Officer and an order of confiscation having been passed, the proper course for the petitioner is to challenge the order of confiscation.
15. This Court while ordering release of the vehicle considered the peculiar facts, which came to light, when this Court heard the Criminal Revision case and observing that there was no confiscation proceedings pending on the date when the Criminal Revision was entertained nor any order was passed, when this Court disposed of the Criminal Revision case on 29.04.2014, interim custody was granted to the petitioner subject to certain conditions. However, it is to be noted that the vehicle was handed over to the District Revenue Officer on 29.01.2014 itself along with the PDS rice bags seized. The District Revenue Officer has passed an order on 04.02.2014, confiscating the PDS rice. This fact was not placed before this Court at the time, when the Criminal Revision case was heard. As regards, the notice to be issued to the petitioner for initiating confiscation proceedings of the vehicle, it is stated that the address given was found to be false and thereafter, the correct address at Nagari was ascertained and notice was issued, which was received by the petitioner and he has also appeared before the District Revenue Officer on 09.09.2014. That apart, the petitioner has filed a quash petition to quash the F.I.R., in Crime No.11 of 2014 in Crl.O.P.No.11146 of 2014, and this Court has granted an order of stay, which is still in force and the Criminal Original Petition is also pending.
16. The learned Senior counsel appearing for the petitioner submitted that all the facts now narrated in the counter affidavit is an after thought and notices are anti-dated and created. Therefore, this Court perused the entire original files and prima facie it is evident that the dates mentioned in the counter affidavit tally with the dates found in the notices issued. At this stage of the matter, the question as to whether the notices were anti-dated, whether the address furnished by the petitioner was the correct address and other issues raised cannot be gone into and these are to be agitated by the petitioner while challenging the order of confiscation passed by the Revenue Divisional Officer. The petitioner would state that till date the order of confiscation of the vehicle said to have been passed on 29.10.2014, by the Revenue Divisional Officer has not been communicated by him. The respondent would state that the Revenue Divisional Officer has sent the order by registered post. However, it is always open to the petitioner to question the same in the manner known to law on receipt of the order. Therefore, this Court is of the view that there is no deliberate disobedience of the order and direction issued by this Court and the allegation that there was anti-dating of the notices by the District Revenue Officer is prima facie not borne out from the records. However, this issue is left open to be raised by the petitioner at the time when he questions the order of confiscation of the vehicle passed by the District Revenue Officer.
17. As pointed out by the Hon'ble Supreme Court in the case of Kapildeo Prasad Sah & Ors., (supra), whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Wilful disobedience would exclude bonafide or genuine inability to comply with the terms of the order, to establish there was wilful disobedience, who makes such a complaint must allege deliberate or contumacious disobedience of the court's order.
18. Further in case of Ashok Paper Kamgar Union (supra), the Hon'ble Supreme Court pointed out that in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances and it should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance and this has to be judged having regard to the facts and circumstances of the each case.
19. Bearing the above legal principle in mind, if the facts of the case are perused, this Court is of the view that there is no wilful disobedience of the order and direction issued by this Court, but on account of the order of confiscation passed by the competent authority in exercise of his powers under the provisions of the E.C.Act.
20. In the case of State of M.P., vs. Rameshwar Rathod (supra), the Hon'ble Supreme Court while considering the language used in Section 6(A) and 7 of the E.C.Act held that Criminal Court had jurisdiction to entertain an application under Section 523 read with 516A of the Criminal Procedure Code, 1898, is not completely ousted. The Hon'ble Supreme Court while affirming the order of the High Court observed that the High Court was right in passing the order under consideration and in the facts and circumstances of the case. The questions which fell for consideration before the High Court were (i) whether Section 6(A) of the E.C.Act, as amended by Act 30 of 1974 was prospective or retrospective (ii)whether in the facts and circumstances, the criminal Court had jurisdiction to entertain an application under section 523 read with section 516A of the Criminal Procedure Code for the return of the seized vehicle by the Police pending decision of the criminal case? and (iii) whether the respondent therein was entitled on the merits for the return of the vehicle as prayed for. On examination of the statutory provisions, the High Court therein found that there was no retro-activity of the amended provision. This opinion rendered by the High Court was accepted by the Hon'ble Supreme Court by taking note of the date on which the contravention of the provisions of the E.C.Act was alleged to have taken place in the said case. Therefore, the finding that Section 6(A) of the E.C.Act as amended by Act 30 of 1974 was only prospective and not retrospective was affirmed. It was argued before the Hon'ble Supreme Court that in view of enactment of the provisions of Section 6(A) of the E.C.Act as well as Section 7 of the E.C.Act, Criminal Court cannot continue to retain jurisdiction and in view of the same, it would be useless to hold that the criminal Court continued to retain jurisdiction as it would defeat the very purpose of enacting Section 6(A) of the E.C.Act, read with Section 7 of the E.C.Act. While considering the said question, the Hon'ble Supreme Court pointed out that normally under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the jurisdiction of the Criminal Court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. It was further pointed out that in view of the language used and in the context in which this language has been used, the High Court in the concerned case was right in coming to the conclusion that the Criminal Court retained the jurisdiction and was not completely ousted of the jurisdiction and therefore, the High Court was right in passing the order in the facts and circumstances of the case to return the vehicle on furnishing security.
21. In my view, the decision is clearly distinguishable on facts and the question, which arose before the concerned High Court was whether the amended Section 6(A) of the E.C.Act was prospective or retrospective. Having confirmed the finding with regard to the prospective effect, the Hon'ble Supreme Court proceeded to consider the ouster of jurisdiction and affirmed the decision of the High Court that jurisdiction was not completely ousted. In my view this was on the facts and circumstances of the said case. Therefore, the decision in the case of State of M.P., vs. Rameshwar Rathod (supra), cannot be straightaway applied to the facts of the present case and also does not lend support to the case on hand.
22. In the light of the above discussion, this Court is satisfied that there is no willful disobedience of the order and direction issued by this Court in Crl.R.C.No.279 of 2014 and accordingly, the Contempt Petition initiated is dropped. However, this will not prevent the petitioner from agitating his rights in the proceedings, which are pending before this Court in Crl.O.P.No.11146 of 2014, and it is open to the petitioner to challenge the correctness of the order of confiscation of the vehicle in the manner known to law and in such an event, the said authority shall decide the matter uninfluenced by any observations made by this Court in this order. No costs. Consequently, connected miscellaneous petition is closed.
03.12.2014 pbn Index :Yes/No Internet:Yes/No T.S.SIVAGNANAM, J. pbn CONT.P.No.2470 OF 2014 03.12.2014