Madras High Court
Vennila vs The State Represented By on 21 January, 2016
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.01.2016 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL Crl.R.C.(MD)No.18 of 2016 and Crl.M.P.(MD).No.389 of 2016 Vennila ... Petitioner Vs. The State represented by the Inspector of Police, Prohibition and Enforcement Wing, Thanjavur in Crime No.658 of 2015. ... Respondent Prayer: Criminal Revision Petition is filed under Sections 397 r/w. 401 of Cr.P.C., to call for the records relating to the order dated 29.12.2015 made in Cr.M.P.No.7259 of 2015 on the file of Judicial Magistrate Court No.I, Thanjavur and set aside the same as illegal and entrust the custody of the vehicle to the petitioner and allow the above revision petition as prayed for. !For Petitioner : Mr.R.Gandhi ^For Respondent : Mr.P.Kandasamy Govt. Advocate (Crl.side) :ORDER
The Revision Petitioner/Petitioner(Vehicle Owner)/third party has preferred the instant Criminal Revision Petition as against the order dated 29.12.2015 in Cr.M.P.No.7259 of 2015 passed by the Learned Judicial Magistrate No.I, Thanjavur.
2. The Learned Judicial Magistrate No.I, Thanjavur, while passing the impugned order in Cr.M.P.No.7259 of 2015 in Crime No.658 of 2015 (filed by the Revision Petitioner/Petitioner/third party) (under Section 451 of Cr.P.C., praying for interim custody of the vehicle bearing Registration No.TN55Z0454 Mahindra Max Pick Up Junior Van) at P-7 had observed the following:
?7. In the reported judgment 2015-2-L.W.(Crl) Page 401 Our Honourable High Court was pleased to dismiss the revision application on the reason that confiscation proceedings have already been initiated by the competent authority U/Sec.14(4) of TNP Act by issuance of show cause notice. In this case also the respondent police initiated confiscation proceedings by issuing a show cause notice dated 17.11.2015. Therefore, in view of the decision rendered by our Honourable High Court and also for the reasons stated above this Court is not inclined to grant interim custody of the vehicle to the petitioner.
and resultantly dismissed the petition.
3. Being dissatisfied with the order of dismissal dated 29.12.2015 in Cr.M.P.No.7259 of 2015 in Crime No.658 of 2015 passed by the Learned Judicial Magistrate No.I, Thanjavur, the Revision Petitioner/Petitioner/Vehicle Owner has focused the instant Criminal Revision Petition basically contending that the impugned order in Cr.M.P.No.7259 of 2015 dated 29.12.2015 is contrary to Law, weight of evidence and probabilities of the case.
4. According to the Learned Counsel for the Revision Petitioner, the trial Court should have seen that the Revision Petitioner/Petitioner is the owner of the vehicle bearing Registration No.TN55Z0454 Mahindra Max Pick up Junior Van and in reality, she is no way connected with the alleged offence under Section 4(1)(aaa) r/w. 4(1-A) of the Tamil Nadu Prohibition Act, 1937.
5. The Learned Counsel for the Revision Petitioner takes a plea that the trial Court had committed an error in dismissing the Cr.M.P.No.7259 of 2015 by passing the impugned order dated 29.12.2015, because of the reason that it had not borne in mind a very vital fact that the vehicle in question if expose to rain and heat of the sun, then it would cause an irreparable damage to the vehicle.
6. Advancing his arguments, the Learned Counsel for the Revision Petitioner emphatically contends that the trial Court had lost sight of the settled Law that mere pendency of confiscation proceedings before the competent authority would not preclude a Court of Law from exercising its jurisdiction for the return of vehicle in terms of the ingredients of Section 457 of Cr.P.C.
7. At this stage, the Learned Counsel for the Revision Petitioner cites the decision of the Honourable Supreme Court (Sunderb hai Ambalal Desai v. State of Gujarat reported in 2003 (1)CTC 175 at special Page-181 at P-17 it is observed as follows:
?17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.?
8. While winding up, the Learned Counsel for the Revision Petitioner submits that the Revision Petitioner is ready and very much willing to furnish undertaking before the trial Court that she would produce the vehicle bearing Registration No.TN55Z0454 Mahindra Max Pick up Junior Van as and when the same is required and added further, she would not encumber or alienate the property till the disposal of the main case.
9. Before the trial Court, the Revision Petitioner/Petitioner/third party filed Cr.M.P.No.7259 of 2015 praying for handing over of the vehicle in question to her stating that she had let out the vehicle on hire to one Anbalagan (driver) with condition that the said vehicle should be utilised for legal work alone and the said Anbalagan was driven the vehicle with that condition and only from and out of the vehicle income, derived from the said vehicle being let out on rent, she is running the family.
10. Continuing further, it was also averred in Cr.M.P.No.7259 of 2015 that the said vehicle was intercepted by the Inspector of Police, Prohibition Wing on 07.11.2015 and at that time, it was found out that in the vehicle, the liquor bottles were transported and therefore, the Inspector of Police filed a case and that the vehicle was not produced before the Court till date and the same was lying with the complainant.
11. The principal stand taken on behalf of the Revision Petitioner before this Court is that the Revision Petitioner is no way connected in regard to the case in Crime No.658 of 2015 and the driver, who drove the vehicle is in her employment and only with the income earned through the seized vehicle, she has to spend for a medical and children expenses. In these circumstances, she has filed the Cr.M.P.No.7259 of 2015 seeking custody of the vehicle in question to her.
12. The Respondent/Police had filed a reply to Cr.M.P.No.7259 of 2015 (filed by the Revision Petitioner) addressing the trial Court inter alia stating that when the Thanjavur Prohibition Wing, Head Constable ? 898 one Ponniyn Selvan went to the address for serving the notice inaction, which came to light that the owner of the vehicle had gone outstation and when the said owner was contacted through his mobile No.9942090397, he informed that he was in outstation and he would come to Thanjaur Prohibition Wing Office in person and would receive the said letter. However, when the said vehicle owner was contacted, he adopted a delay in tactics by stating that he would come today or tomorrow and on 04.12.2015, came in person to the Thanjavur Prohibition Office and received the confiscation notice and furnished in writing that the said vehicle was sold through a broker two years before and as such, there was no connection between him and the said vehicle and further that he has no objection for the vehicle being confiscated to the State. Further, it was also mentioned that in the aforesaid circumstances, one Vennila, W/o. Ramalingam, Church Street, Chithankoor, Ulunthoorpet Taluk, Vilupuram District (the Revision Petitioner) filed a petition before the trial Court seeking return of the vehicle to her.
13. Before this Court, to the Criminal Revision Petition No.18 of 2016, the respondent police had filed a counter among other things mentioning that the case was originally registered in Crime No.658 of 2015 for the offences under Sections 4(1)(aaa) r/w. 4(1-A) of the Tamil Nadu Prohibition Act was and subsequently, altered into Section 4(1)(aaa) of the Act and that a charge sheet was filed before the trial Court under Section 4(1) (aaa) of the TNP Act and the same is yet to be taken on file, as on date, as such, there is no necessity to set aside the order of dismissal passed by the trial Court in Cr.M.P.No.7259 of 2015 dated 29.12.2015.
14. It is the submission of the Learned Government Advocate (Crl.side) that the Additional Superintendent of Police, Prohibition Wing, Thanjavur District, on 11.01.2016, in Na.Ka.No.CON.42/k.tp.m.gp/Tanjore/15 had issued a show cause notice for confiscating the vehicle viz., Mahindra Max Pick up Junior Van bearing Registration No.TN55Z0454 and it was addressed to the Revision Petitioner requiring her to state as to why the said vehicle should not be confiscated in favour of the State and it was also further informed that the Revision Petitioner should furnish her objection/reply either in writing or in person.
15. One cannot ignore a vital fact that the confiscation of vehicle 'involved in a prohibition offence is not a mandatory one'. Confiscation of a vehicle depends upon the facts and merits of each case, as per decision in Abdul Jabar V. State by Inspector of Police, Manapparai, reported in 1994 MLJ (Crl) 567. Besides that, a harmonious reading of Sec.14(4) and Section 14(A) of the TamilNadu Prohibition Act, 1937 points out that in terms of the scheme of the Act, the State Government is enjoined to prosecute the owners of animals, vessels, cart or other vehicle and seize the same without prejudice to the order of confiscation, as per decision T.Karthik V. State by Inspector of Police, Tambaram reported in (1999) 1 LW (Crl) page 114. Moreover, the ordering of 'interim custody of vehicle' involved in prohibition offence should not be automatic and routine one. The discretion of the Court should be exercised judiciously with due care, as per decision David V. Sakthivel, reported in 2010 1 MLJ (Crl) page 929 (Mad).
16. It is to be noted that after the amendment to Tamil Nadu Prohibition Act, 1937, the burden is shifted on the part of the owner of the vehicle to prove that he exercised due care in preventing the commission of the offence as per decision The Commissioner of Police, Madras V. R.Gothandapani reported in 1997 LW (Crl) Pg. 93.
17. In reality, before passing an order of confiscation pertaining to a vehicle, the appropriate authority is to provide reasonable opportunity to the owner of the vehicle, in the considered opinion of this Court.
18. It is to be remembered that for disposal of property in terms of Section 451 of Cr.P.C., it is just and necessary that the property should be under the control of the Learned Magistrate. In fact, not only in respect of the property in regard to an offence appears to have been committed or which appears to have been used for commission of the offence that the Court is empowered under Section 451 of Cr.P.C., to pass an order for custody and disposal of property, pending trial, but even in respect of a property produced before the Court, the Court is empowered to make such an order as per the decision Om Rajnarain, Shivpuri V. R.M.Patil, reported in, 1978 CrLJ page 1432. (Bom-DB).
19. It is to be relevantly point out that the orders passed in terms of Section 451 and 457 of Cr.P.C., are during the pendency of trial or enquiry. When the complaint is filed in Court, the vehicle seized by the Police becomes a part of the complaint and it is deemed that the vehicle is also in the Court. Continuing further, just because a property is liable to be confiscated, it should not be released, during the pendency of trial, is not a reasonable ground for refusing the interim custody of the vehicle seized, in the considered opinion of this Court. If at all, a vehicle is meant for use, the user and the owner should not be deprived of such use, in the considered opinion of this Court. The vehicle is quite likely to rot and rust, if a vehicle was seized as a piece of evidence and further, the same is liable to be confiscated and at the time of passing an order on the question of interim custody, the prime consideration which should weigh with the Court of Law, is when the concerned person/petitioner is called upon, the vehicle would be produced for the purpose of evidence and if in the event of confiscation order, the same would be available for confiscation?
20. Insofar as Section 457 of Cr.P.C., is concerned, one has bear in mind that the term 'inquiry' or trial, does not connote the stage of investigation by the Police, as per decision reported in Mohar Singh V. State, reported in 1979 CrLJ 216, 218 (Himachal Pradesh). Indeed, an order under Section 457 of Code of Criminal Procedure can be made during investigation and also the Learned Magistrate need not wait until the trial or enquiry is concluded, as per the decision Ajai Singh Vs Nathi Lal, 1978 CrL.J. 629 (AII). Even when the matter is in the stage of Police investigation, disposal can be ordered, as per decision Mohar Singh Vs State, reported in 1979 CrLJ 216, at special page 218 (Himachal Pradesh).
21. It is well-settled that a Court of Law is to exercise its judicial discretion, after taking into account the due consideration, interest of justice, including the future necessity of production of the seized vehicle/article at the time of trial. However, if the release of property in question/issue will in any manner affect or prejudice the course of justice, at the time of trial, it will be a sound exercise of judicial discretion to reject the claim for return, as opined by this Court. Under Section 457 of Cr.P.C., the title to the property is not determined or adjudicated. Indisputably, the order to be passed for return/release of vehicle is summary in character. Section 457 of Cr.P.C., enjoins a Court of Law to release the property seized by the Police from accused during investigation, but not yet produced before it, as per decision Amarjith Singh Vs State of Punjab reported in 1982 CrLJ at page 523 (Punjab & Haryana). Further, the powers of the Magistrate to order release of the vehicle in issue comes into operative play, when some investigation in respect of an offence is registered and the seizure is made of the property concerned.
22. Under Section 457 of Cr.P.C., it is to be pointed out that a Court of Law has power to order release of property seized from any person in connection with an offence, even though the property was not produced and the trial of the main case has not commenced, as per decision of the Honourable Supreme Court in Ram Prakash Sharma Vs State of Haryana reported in AIR 1978 Supreme Court page 1282. Also that, in the decision of Rajendra Prasad Vs State of Bihar reported in 2001 10 SCC page 88, the Honourable Supreme Court had held that ?subject to certain conditions, the custody of vehicle can be entrusted during the pendency of trial temporarily to its registered owner".
23. It cannot be gainsaid that Section 102 of Cr.P.C., defines the power of Police Officer to 'seize certain property' especially where the allegation of commission of an offence is alleged. As a matter of fact, Section 102 of Cr.P.C., speaks of any offences and is wide enough to cover offences either under the Indian Penal Code or under any special statute, as opined by this Court. Moreover, for an application of Section 102 of Cr.P.C, the essential requirements are that the properties said to be seized or frozen must be either stolen property or they should have been found to have some nexus with the alleged offence, which is under investigation of the concerned Police Officer, as per decision Rajamani Vs Inspector of Salem reported in 2003 CrLJ page 2902 at special page 2903.
24. In the present case on hand, the Revision Petitioner/Petitioner before the trial Court in Cr.M.P.No.7259 of 2015, had categorically stated that she is the owner of Mahindra Max Pick Up Junior Van bearing Registration No.TN55Z0454. It is not in dispute that the said vehicle was seized and presently it is in custody of the police. At this stage, it is represented on behalf of the Respondent/Police that the vehicle was remanded before the trial Court in Cr.M.P.No.7259 of 2015.
25. Be that as it may, this Court, on going through the impugned order in Cr.M.P.No.7259 of 2015 dated 29.12.2015, passed by the trial Court, is of the earnest view that the reasons assigned for dismissal of the Miscellaneous Petition by the trial Court inter alia to the effect that 'in this case also the Respondent/Police initiated confiscation proceedings by issuing a show cause notice dated 11.01.2015 etc., are not correct in the eye of Law. Therefore, this Court interferes with the said order of dismissal dated 29.12.2015 passed in Cr.M.P.No.7259 of 2015 by the trial Court and sets aside the same to prevent an aberration of justice and to promote substantial cause of justice. Resultantly, the Criminal Revision Petition succeeds.
26. In fine, the Criminal Revision Petition is allowed and the order passed by the Learned Judicial Magistrate No.I, Thanjavur in Cr.M.P.No.7259 of 2015 dated 29.12.2015 is set aside by this Court for the reasons ascribed in this Criminal Revision Petition. Moreover, this Court, in the interest of justice, directs the Respondent/Police to produce the Mahindra Max Pick up Junior Van bearing Registration No.TN55Z0454 before the Learned Judicial Magistrate No.I, Thanjavur within five days from the date of receipt of a copy of this order. Thereafter, the vehicle may be handed over to the Revision Petitioner/Petitioner on filing of Miscellaneous Petition by her before the trial Court inasmuch as the trial Court can pass orders under Section 451 of Cr.P.C., only after a physical or symbolical production of the two wheeler in question, of course after hearing the respective parties concerned. However, the return/handing over of the vehicle in question is subject to the fulfillment of following conditions, by the Petitioner.
i) Soon after the production of the vehicle viz., Mahindra Max Pick up Junior Van bearing Registration No.TN55Z0454, before the trial court, the Petitioner is directed to produce all the necessary documents relating to the ownership of the vehicle.
(ii) The Petitioner shall execute a bond for a sum of Rs.25,000/- along with two sureties likesum to the satisfaction of the Learned Judicial Magistrate No.I, Thanjavur;
(iii) The Petitioner shall surrender the R.C.Book and the Learned Judicial Magistrate No.I, Thanjavur is at liberty to return the R.C.Book, in case of renewal, if any for the purpose of registration or for insuring the vehicle.
(iv) the Petitioner shall furnish an affidavit of undertaking to the effect that she will cause production of the vehicle in question before the appropriate/competent authority/Court as and when called for and further, he will not alienate the vehicle in question till the appropriate proceedings to be initiated or completed.
(v)The Petitioner shall not alter the character and nature of the vehicle except by carrying out necessary repairs to make the vehicle road worthy.
vi)The Petitioner should give an undertaking to produce the vehicle as and when required by the requisite authority/Prohibition Officer duly authorised in that behalf by the Government."
To Judicial Magistrate Court No.I, Thanjavur.