Madras High Court
Bhavani S.M.Edwin Jose vs The Inspector Of Police on 27 October, 2021
Crl.R.C.(MD)No.700 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.R.C.(MD) No. 700 of 2021
Bhavani S.M.Edwin Jose ... Petitioner/Petitioner/
Owner of the vehicle
Vs.
The Inspector of Police,
Prohibition Enforecement Wing,
Thuckalay, Kanyakumari District.
(Crime No.486 of 2021) ... Respondent/Respondent/
Complainant
PRAYER: The Criminal Revision Petition is filed under Section 397 r/w
401 of the Code of Criminal Procedure, to call for the records pertaining to
the order passed in Cr.M.P.No.5418 of 2021, dated 02.09.2021, on the file
of the learned Judicial Magistrate No.II, Padmanabhapuram, Kanyakumari
District and set aside the same.
For Petitioner : Mr.Sivabalan
for Mr.G.Aravinthan
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
1/10
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Crl.R.C.(MD)No.700 of 2021
ORDER
The present Criminal Revision Case has been filed praying to set
aside the order dated 02.09.2021 made in Cr.M.P.No.5418 of 2021 on the
file of the learned Judicial Magistrate No.II, Padmanabhapuram.
2. The petitioner is the owner of the Motor Cycle bearing
Registration No.TN-75-L-8419. In a case registered in Crime No.486 of
2021 under Sections 4(1)(A), 4(l)(i) and 14(A) of TNP Act, the respondent
police, while at the time of investigation, recovered the said vehicle and as
of now, the same is in the custody of the respondent police.
3. Pending investigation, the petitioner filed an application in
Cr.M.P.No.5418 of 2021 before the learned Judicial Magistrate No.II,
Padmanabhapuram, wherein, she seeks the relief to given the said vehicle
for interim custody.
4. The learned Judicial Magistrate No.II, Padmanabhapuram, by
order dated 02.09.2021 dismissed the said application on the ground that, in
respect of the said vehicle, already confiscation proceedings are initiated
and hence, the relief sought for by the petitioner cannot be sustained.
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Crl.R.C.(MD)No.700 of 2021
Challenging the said dismissal order, the present revision petition has been
filed.
5. The learned counsel appearing for the revision petitioner would
submit that the petitioner is not an accused and also she is not having any
knowledge in respect to the seizure of vehicle. He has further added that at
the time of occurrence, without the knowledge of the petitioner, the accused
took the vehicle and committed the alleged occurrence and hence the
petitioner is no way held responsible for the alleged occurrence. Further, if
the petition mentioned vehicle is exposed in the sunlight, the value of the
vehicle become depreciated and therefore, this petition has been filed
praying to given the vehicle for interim custody by setting aside the order
dated 02.09.2021.
6. Per contra, the learned Additional Public Prosecutor appearing
for the respondent police would contend that in respect to the petition
mentioned vehicle already confiscation proceedings are initiated and hence,
the property now stated in the petition shall not be given to the petitioner.
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Crl.R.C.(MD)No.700 of 2021
7. Now, on going through the rival submissions made by the
counsels appearing on either side with relevant records, it is true that the
petitioner is not arrayed as an accused in the above referred case. However,
in the impugned order, the learned Judicial Magistrate No.II,
Padmanabhapuram has clearly stated about the initiation of confiscation
proceedings. In the said circumstances, in Oli Mohammed vs. State rep. by
the Inspector of Police reported in 2015(2) L.W.(Crl.) 401 this Court after
considering the following judgments in (I) Aswini Kumar Ghose v.
Arabinda Bose reported in AIR 1952 SC 369 (ii) In State of West Bengal
vs. Union of India reported in 1964 (1) SCR 371 (iii) In Union of India vs.
G.M.Kokil reported in AIR 1984 SC 1022 (iv) In Chandavarkar Sita Ratna
Rao vs. Ashalata S.Guram reported in 1986 (4) SCC 447 (v) In Narcotics
Control Bureau v. Kishan Lal reported in AIR 1991 SC 558 (vi) In
R.S.Rahunath v. State of Karnataka reported in 1992 (1) SCC 335 (vii) In
Vishin N.Kanchandani v. Vidya Lachmandas Khanchandani reported in
2001 (1) L.W. (Crl.) 380 = AIR 2000 SC 2747 (viii) In Fitzgerald v.
Champneys 1861 (30) L.J. Ch.777 at p.782 (ix) In Wood V.C., in London
and Black Wall Rly v. Limehouse District Board of Works reported in
1856 (26) LJ 164 (x) In Siha Singh v. Sundan Singh reported in AIR 1921
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Crl.R.C.(MD)No.700 of 2021
Lah. 280 (xi) In Maharaja Pratap Singh Bahadur v. Man Mohan Dev.,
reported in AIR 1966 SC 1931 came to the following conclusion:-
72. Confiscation proceedings have already been
initiated by the competent authority, under Section
14(4) of the Act, by issuance of a show cause and in the
light of the guidelines issued in David's case (cited
supra), this Court is of the view that the impugned
order of the Court below, in dismissing the petition, for
return of the vehicle, alleged to have been involved in
G.3.Cr.No.1368 of 2014, for the offences under the
TNP Act,cannot be said to be manifestly illegal,
warranting interference.
8. Further this Court in a judgment reported in David v.
Shakthivel, Inspector of Police-cum-Station House Officer, Prohibition
Enforcement Wing, Tindivanam, Villupuram District reported in 2010-1-
L.W.(Crl.) 129 it was held as follows:-
22. 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
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Crl.R.C.(MD)No.700 of 2021
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.
23. Before proceeding to exercise the jurisdiction under
Sections 451 or 457 Cr.P.C. in respect of the vehicle
involved in the commission of prohibition offence, Court
has to ascertain from the prosecutor whether any
confiscation proceedings has been initiated by the
District Collector/Prohibition Officer or authorized
officer as contemplated under Section 14(4) of TNP Act.
Only after affording sufficient opportunity, Court could
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Crl.R.C.(MD)No.700 of 2021
proceed to exercise its jurisdiction and keeping in view
the spirit of Section 14(4) of TNP Act, Court to pass
appropriate speaking order.
24. It is pertinent to note that as against the order
passed under Section 14(4) of TNP Act, appeal lies
before the Court of Sessions having jurisdiction. For
instance let us assume that order of confiscation has
been passed by the District Collector or other
Prohibition Officer incharge of the District or any other
authorized officer. Under Section 14(5) of TNP Act, any
person aggrieved by the order of confiscation under
Section 14(4) of the Act within one month may appeal to
the Court of Sessions having Jurisdiction. In such case,
where an order of confiscation has been passed, if
Magistrate has to pass an order for interim custody,
evidently Magistrate would be transgressing upon the
powers of the Executive and Sessions Judge. To avoid
such situation, in dealing with the vehicles involved in a
prohibition offence, exercise of powers of the Court
under Sections 451 or 457 Cr.P.C. should always be
with due care and caution.
9. Now, applying the ratio laid down in the above referred
judgments, herein also, being the reason that already confiscation
proceedings are started allowing this revision petition would futail the entire
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Crl.R.C.(MD)No.700 of 2021
process of confiscation, further the petitioner is having the opportunity to
challenge the order passed in respect of confiscation by way of filing the
revision before the Sessions Court under Section 14(5) of TNP Act.
10. Therefore, considering the facts and circumstances of the case,
I am of the considered opinion that this Criminal Revision Case is liable to
be dismissed. However, it is appropriate to given some direction to the
confiscation authority to complete confiscation proceedings within a
stipulated period.
11. In fine, the Criminal Revision Case is dismissed. The
confiscation authority i.e., the authorised officer, who initiated the
confiscation proceedings, is directed to dispose the confiscation proceedings
within a period of 2 months from the date of receipt of a copy of this order.
27.10.2021
Index : Yes/No
Internet : Yes/No
am
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Crl.R.C.(MD)No.700 of 2021
To:-
1. The Inspector of Police,
Prohibition Enforecement Wing,
Thuckalay,
Kanyakumari District.
2. The Judicial Magistrate No.II,
Padmanabhapuram.
3. The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD)No.700 of 2021
R.PONGIAPPAN,J.
am
Crl.R.C.(MD)No.700 of 2021
27.10.2021
https://www.mhc.tn.gov.in/judis/
