Indian Kanoon - Search engine for Indian Law

10. In David v. Sakthivel, Inspector of Police reported in 2010 (1) LW (Crl.) 129 = 2010 (1) MLJ (Crl.) 929, proceedings under Section 14(4) of the Act, were initiated on 23.07.2009. Notice was ordered to the Investigating Officer, in the petition filed under Section 457 Cr.P.C. On 24.07.2009, the Magistrate was informed that confiscation proceedings have already been initiated and therefore, the vehicle could not be produced before the Court. Even then, the Magistrate directed the vehicle to be produced. As the same was not done, Contempt Petition was filed. Considering a catena of decisions and under Sections 451 and 457 Cr.P.C., at Paragraph 22 to 24, a Hon'ble Division Bench of this Court, held as follows:

22. As rightly submitted by the learned Advocate General, Section 14(4) of the Act does not take away the jurisdiction of the Court and exercise of power under Sections 451 or 457 Cr.P.C. But discretion of Court has to be exercised judiciously and exercised with due care and caution. Where seizure of vehicle involved in an offence of prohibition reported to the Magistrate, exercise of discretion and ordering of interim custody under Sections 451 or 457 Cr.P.C. is not automatic. Notwithstanding the involvement of the vehicle in the commission of prohibition offence, if there is automatic exercise power by the Court, Section 14(4) of the Act would become a dead letter. In our view, order of confiscation of a vehicle involved in the commission of offence under Section 14(4) of TNP Act is not only punitive but also deterrent. While so, when the vehicle is involved in the commission of a prohibition offence, exercise of discretion by the Court with care and caution would serve various purposes. While before passing any order in respect of the vehicle involved in the commission of prohibition offence, Court should keep in view the spirit of Section 14(4) of the Act and the benevolent objects of Tamil Nadu Prohibition Act.

"Whenever seizure of properties involved in the commission of offence under Prohibition Act, exercise of power is not automatic. Court should afford sufficient opportunity to the prosecution to inform the Court about the steps taken by the Investigating Agency. Keeping in view the spirit of Section 14(4) of TNP Act, Court on its own should ascertain whether any confiscation proceedings has been initiated and the stage of confiscation proceedings.

"After affording sufficient opportunity to the prosecution and only after ascertaining about the steps taken for initiation of confiscation proceedings, Court could exercise its discretion under Sections 451 or 457 Cr.P.C. Court could judiciously exercise its discretion with due care and caution keeping in view the spirit of Section 14(4) of TNP Act. Exercise of discretion under Sections 451 and 457 Cr.P.C. is only after affording sufficient opportunity to the prosecution to get instructions. Subordinate Courts are directed to insist the Assistant Public Prosecutor/Public Prosecutor to file written Memo as to the steps taken under Section 14(4) of TNP Act or otherwise could only on receipt of written memo, Court could proceed to exercise its power under Sections 451 or 457 Cr.P.C.

20. 'Property', as per the Code, is any property, regarding which an offence appears to have been committed, or appears to have been used for the commission of any offence. It shall also include such property, as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise'.

21. Though the Supreme Court in Rameshwar Rathod's case (cited supra), arising under the Essential Commodities Act, 1955, held that the criminal Court continues to retain jurisdiction, in the subsequent judgment in Oma Ram's case (cited supra), at Paragraph 17, the Supreme Court held that the Magistrate has no jurisdiction to grant relief against seizure, under Section 457 Cr.P.C., insofar as the Essential Commodities Act, 1955, is concerned. Thus, on the aspect, as to whether, the Magistrate has got powers to grant an order for interim custody of the essential commodities, under Section 457 Cr.P.C., vis-a-vis, Section 6-A of the Essential Commodities Act, the Apex Court in Oma Ram's case (cited supra), held that the Criminal Court has no jurisdiction to order for release, under Section 457 Cr.P.C. The decision rendered in Rameshwar Rathod's case (cited supra), is by a Hon'ble Bench, comprising of two Hon'ble Judges.