Madras High Court
Mohan vs The Superintendent Of Police on 15 December, 2021
WP(MD) No.22203 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.12.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)No.22203 of 2021
Mohan ... Petitioner
Vs.
1.The Superintendent of Police,
Office of Superintendent of Police,
Ramanathapuram District.
2.The Deputy Superintendent of Police,
Prohibition Excise and Department,
Ramanathapuram District.
3.The Inspector of Police,
Kenikkarai Police Station,
Thanjavur District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Mandamus, directing the respondents herein to
release TVS STAR CITY PLUS BS III registration bearing No.TN 65 AD
0729 and within a time stipulated by this Court.
For Petitioner : Mr.J.Vishnu
For Respondents : Mr.C.Satheesh,
Government Advocate.
1/12
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WP(MD) No.22203 of 2021
ORDER
Mr.J.Vishnu, learned Counsel on record for writ petitioner is before
this Court. Mr.C.Satheesh, learned Government Advocate accepts notice on
behalf of all the three respondents.
2. With the consent of both sides, the captioned main writ petition is
taken up and heard out.
3. There is no disputation or disagreement that in a similar matter
another Hon'ble Single Judge has ordered release of the seized vehicle on
certain terms. To be noted, this is a case of alleged violation of Section 4(1)
(a) of the Tamil Nadu Prohibition Act, 1937.
4. In the light of there being no disputation or disagreement that this
matter is similar to the case in which another Hon'ble Single Judge has
directed release of the vehicle by imposing certain conditions, it is not
necessary to dilate further on facts. The order made by the other Hon'ble
Judge with the consent of both sides is as follows:
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WP(MD) No.22203 of 2021
'Heard the learned counsel on either side. By consent
of both parties, this writ petition is taken up for final disposal
at the admission stage itself.
2. The petition mentioned vehicle was seized in
connection with Crime No.57 of 2020 registered on the file of
the second respondent for the offence under Sections 4(1)(a)
and 4(1)(i) of Tamil Nadu Prohibition Act. It is not in dispute
that till now no confiscation order under Section 14 of the
Tamil Nadu Prohibition Act has been passed. It is also not in
dispute that the vehicle has not been produced before the
jurisdictional Criminal Court.
3.In similar circumstances, this Court vide order dated
09.07.2020 in W.P.(MD)No.2679 of 2020 (Sathiah v. The State
of Tamil Nadu and Others) has passed the following order:-
“Heard the learned counsel on either side.
2. The petition mentioned vehicle belongs to the
petitioner herein. It appears that the said vehicle was
involved in Crime No.231 of 2019, registered on the file of
the third respondent under Tamil Nadu Prohibition Act,
1937. The petitioner's son Karthick was arrested and he was
found in possession of 384 Brandy Bottles. The petitioner's
son was said to have driven the said vehicle at the relevant
point of time. The grievance of the petitioner is that the
vehicle in question has not been produced before the Judicial
Magistrate till date. His further apprehension is that even
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WP(MD) No.22203 of 2021
without complying the necessary procedures, the second
respondent is likely to auction the vehicle, which necessitated
the petitioner to file the present Writ Petition.
3. The learned counsel for the petitioner placed
reliance on the order dated 06.06.2019 made in Crl.O.P.No.
11945 of 2019, wherein the learned judge has observed as
follows:-
11. The provisions of Section 49A of the Tamil Nadu
Forest Act does not in any way take away the
jurisdiction of the Magistrate Court to exercise its
power under Section 451 or 457 of Cr.P.C. The
confiscation of a vehicle involved in the commission
of an offence under the Tamil Nadu Forest Act is not
only punitive in nature but also a deterrent. When a
vehicle is involved in the commission of offence under
the Tamil Nadu Forest Act and there are prima facie
materials to show that the owner of the vehicle did
not have any knowledge or connivance in the
commission of the offence, he can always file an
application for return of vehicle under Section 451 or
457 of Cr.P.C. But, however the Court while
exercising its powers will have to do it with care and
caution and should provide an opportunity to the
Public Prosecutor and also must keep in mind the
spirit behind Section 49A of the Tamil Nadu Forest
Act, 1882 and its benevolent object.
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WP(MD) No.22203 of 2021
12. Even though, the Judgment cited by the learned
counsel for the petitioner deals with the case under
the Tamil Nadu Prohibition Act, the ratio in the said
Judgment can be applied even in a case where
confiscation proceedings have been initiated under
the Tamil Nadu Forest Act.
13. In view of the above, the reason given by the Court
below for returning the petition filed by the petitioner
is unsustainable and the same is hereby setaside. The
Court below is directed to consider the petitioner
afresh by keeping in mind the judgment of the Hon'ble
Division bench referred supra and after affording an
opportunity to the prosecution. This exercise shall be
completed by the Court below within a period of one
month from the date of a receipt of copy of this order.
4. The learned Government counsel wanted to
rely upon G.O.Ms.No.39 dated 22.10.2019, Home,
Prohibition and Excise (VIII) Department to sustain his
contention that the second respondent can very well
auction the vehicle in question. But the said
Government order will come into play after the
confiscation is done under Section 14 of Tamil Nadu
Prohibition Act 1937. In this case, there is nothing on
record to show the fulfillment of formalities set out in
Section 14(4) of the Tamil Nadu Prohibition Act.
Therefore, the question of auctioning the vehicle even
without formal confiscation does not arise at all. Also, it
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WP(MD) No.22203 of 2021
does not mean that the vehicle involved in criminal case
should not be produced before the Jurisdictional Court.
In fact, the provisions of Criminal Procedure Code
envisage that the seized vehicle should be produced
before the Jurisdictional Court and the party concerned
can avail the right to claim the vehicle by way of interim
or final custody.
5.Therefore, I direct the respondents to produce
the vehicle in question before the jurisdictional criminal
Court without any further delay. Upon such production,
it is open to the petitioner to apply for return under
Section 451 of Cr.P.C. Of course, the authorities are at
liberty to take action to confiscate the vehicle as per law.
6. In the above terms, the Writ Petition is
allowed. No costs.'
4.The petitioner's counsel on instructions gives an
undertaking that the petitioner will not alienate the petition
mentioned vehicle till the confiscation proceedings are over.
She also gives a further undertaking that the petitioner will
also produce the vehicle as and when the respondents call for
the vehicle for enquiry and cooperate with the enquiry to be
conducted by the respondents.
5. I make it clear that it is very much open to the
respondents herein to initiate and conclude the confiscation
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WP(MD) No.22203 of 2021
proceedings. The only relief that I am granting is interim
custody of the vehicle. I have not gone into the merits of the
matter.
6. Therefore, the respondents are directed to release
the said vehicle subject to the following conditions:-
a) The petitioner is directed to pay a sum of Rs.2,000/-
(Rupees Two Thousand only) in favour of the Officer-
in-Charge, High Court Legal Services Committee,
Madurai Bench of Madras High Court, Madurai,
S.B.A/c.No.496037387, IFSC : IDIB000H040, Indian
Bank, High Court Branch, Madurai. It will be a non
refundable payment. The Registrar (Judicial) is
directed to spend the amount for appropriate welfare
activities such as feeding the disadvantaged
communities in Madurai District.
b) The petitioner shall not alienate or encumber the
vehicle in question till the proceedings are completed.
c) petitioner shall produce all the documents pertaining
to the ownership of the seized vehicle.
d) and when the respondents call for the vehicle for
enquiry, the petitioner has to produce the vehicle in
question and he shall cooperate with the enquiry to be
conducted by the respondents.
7. Upon completion of these formalities, the
respondents shall release the vehicle forthwith without any
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WP(MD) No.22203 of 2021
delay. If this undertaking given by the petitioner is breached,
the petitioner will not be entitled to interim release of the
vehicle in future. The Writ Petition is allowed accordingly.
There shall be no order as to costs.'
5. The conditions imposed and the release of the vehicle post
compliance of the conditions have been set out by the Hon'ble Single Judge
in paragraph Nos.5, 6 & 7.
6. Therefore, there shall be a similar order in the captioned matter.
The order is a follows:
6.1. I make it clear that it is very much open to the
respondents herein to initiate and conclude the
confiscation proceedings. The only relief that I am
granting is interim custody of the vehicle. I have not gone
into the merits of the matter.
6.2. Therefore, the respondents are directed to
release the said vehicle subject to the following
conditions:
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WP(MD) No.22203 of 2021
a) The petitioner is directed to pay a sum of Rs.
2,000/- (Rupees Two Thousand only) to the credit of the
Officer-in-Charge, High Court Legal Services Committee,
Madurai Bench of Madras High Court, Madurai,
S.B.A/c.No.496037387, IFSC : IDIB000H040, Indian
Bank, High Court Branch, Madurai. It will be a non
refundable payment. The Registrar (Judicial) is directed to
spend the amount for appropriate welfare activities such as
feeding the disadvantaged communities in Madurai
District;
b) The petitioner shall not alienate or encumber the
vehicle in question till the proceedings are completed;
c) The petitioner shall produce all documents
pertaining to ownership of the seized vehicle;
and
d) when the respondents call for the vehicle for
enquiry, the petitioner has to produce the vehicle in
question and he shall cooperate with the enquiry to be
conducted by the respondents.
6.3. Upon completion of these formalities, the
respondents shall release the vehicle forthwith without any
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WP(MD) No.22203 of 2021
delay. If aforementioned undertaking given by the
petitioner is breached, the petitioner will not be entitled to
interim release of the vehicle in future.
7. Captioned Writ Petition is disposed of in aforesaid manner i.e.,
with aforementioned directive without any order as to costs.
vsm 15.12.2021
Index : Yes/No
Internet : Yes /No
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WP(MD) No.22203 of 2021
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order that
is presented is the correct copy, shall be the responsibility of
the advocate / litigant concerned.
To
1.The Superintendent of Police,
Office of Superintendent of Police,
Ramanathapuram District.
2.The Deputy Superintendent of Police,
Prohibition Excise and Department,
Ramanathapuram District.
3.The Inspector of Police,
Kenikkarai Police Station,
Thanjavur District.
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WP(MD) No.22203 of 2021
M.SUNDAR, J.
vsm
W.P(MD)No.22203 of 2021
15.12.2021
https://www.mhc.tn.gov.in/judis
