Madras High Court
K.Babu vs The Commissioner Of Police on 17 November, 2021
W.P.(MD)No.20537 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)No.20537 of 2021
K.Babu ... Petitioner
Vs.
1.The Commissioner of Police,
Madurai City,
Madurai.
2.The Assistant Commissioner of Police,
Prohibition Enforcement Wing,
Madurai City,
Madurai.
3.The Inspector of Police,
Prohibition Enforcement Wing,
Madurai City,
Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Mandamus, to direct the third
respondent herein to forthwith to release petitioner's Hero Honda
Splendor Bike bearing Registration No.TN 59 AH 6835 from their
custody on the basis of his representation dated 06.11.2021.
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W.P.(MD)No.20537 of 2021
For Petitioner : Mr.K.Sathish Kumar
For Respondents : Mr.S.R.A.Ramachandran
Additional Government Pleader
ORDER
***********
Mr.K.Sathish Kumar, learned Counsel on record for writ
petitioner is before this Court. Mr.S.R.A.Ramanchandran, learned
Additional Government Pleader 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 Sections 4(1)(a) and 4(1)(i) 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
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W.P.(MD)No.20537 of 2021
made by the other Hon'ble Judge with the consent of both sides is
as follows:
'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
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W.P.(MD)No.20537 of 2021
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 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
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W.P.(MD)No.20537 of 2021
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.
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
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W.P.(MD)No.20537 of 2021
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 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
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W.P.(MD)No.20537 of 2021
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 proceedings. The only relief that
I am granting is interim custody of the vehicle. I
have not gone into the merits of the matter.
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W.P.(MD)No.20537 of 2021
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 delay. If this undertaking given by
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W.P.(MD)No.20537 of 2021
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:
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
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W.P.(MD)No.20537 of 2021
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 delay. If aforementioned undertaking
given by the petitioner is breached, the petitioner
will not be entitled to interim release of the vehicle
in future.
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W.P.(MD)No.20537 of 2021
7.Captioned Writ Petition is disposed of in aforesaid manner
i.e., with aforementioned directive without any order as to costs.
17.11.2021
Index : Yes / No
Internet: Yes / No
MR
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 Commissioner of Police,
Madurai City, Madurai.
2.The Assistant Commissioner of Police,
Prohibition Enforcement Wing,
Madurai City, Madurai.
3.The Inspector of Police,
Prohibition Enforcement Wing,
Madurai City, Madurai.
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W.P.(MD)No.20537 of 2021
M.SUNDAR., J.
MR
ORDER MADE IN
W.P.(MD)No.20537 of 2021
17.11.2021
https://www.mhc.tn.gov.in/judis
