Madras High Court

Mr.Raja ... Revision vs State Rep. By on 13 April, 2022

                                                                                    Crl.R.C.No.466 of 2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 13.04.2022

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

                                                Crl.R.C.No.466 of 2022

                  Mr.Raja                                               ... Revision Petitioner
                                                          vs.
                  State Rep. by
                  The Inspector of Police,
                  Mathur Police Station,
                  Krishnagiri District.                                 ... Respondent

                  Prayer: Criminal Revision Case filed under Section 397 & 401 of Code of
                  Criminal Procedure, praying to set aside the order dated 24.03.2022 made in
                  Crl.M.P.No.31 of 2022 on the file of the learned District Munsif-cum-
                  Judicial Magistrate, Pochampalli, dismissing the petition to return the vehicle
                  viz., Jupiter Motor Cycle bearing Registration No.TN83M3450 to the
                  petitioner herein.

                                    For Petitioner   :     Mr.M.P.Saravanan
                                    For Respondent   :     Mr.Leonard Arul Joseph Selvam
                                                           Govt. Advocate (Crl. Side)

                                                         ORDER

The present Criminal Revision Case has been filed praying to set aside

the order dated 24.03.2022 made in Crl.M.P.No.31 of 2022 on the file of the

learned District Munsif-cum-Judicial Magistrate, Pochampalli.

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Crl.R.C.No.466 of 2022

2. The petitioner is the owner of Jupiter Motor Cycle bearing

Registration No.TN83M3450. In a case registered against the petitioner

herein in Crime No.237 of 2021 under Section 4(1)(a) of Tamil Nadu

Prohibition Act (Transport), 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

Crl.M.P.No.31 of 2022 before the learned District Munsif-cum-Judicial

Magistrate, Pochampalli, praying interim custody of the vehicle.

4. The learned District Munsif-cum-Judicial Magistrate, Pochampalli,

by order dated 24.03.2022, 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. Challenging the said dismissal order, the present revision petition

has been filed.

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Crl.R.C.No.466 of 2022

5. The learned counsel appearing for the revision petitioner would

submit that the petitioner is the owner of the above said vehicle and if the

petition mentioned vehicle is exposed in the sunlight, the value of the vehicle

would become depreciated and therefore, this petition has been filed praying

interim custody of the vehicle, by setting aside the order dated 24.03.2022

made in Crl.M.P.No.31 of 2022, passed by the learned District Munsif-cum-

Judicial Magistrate, Pochampalli.

6. Per contra, the learned Government Advocate (Crl. Side) appearing

for the respondent police would contend that the petitioner herein is the sole

accused in the alleged crime and 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.

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

the sole accused in the above referred case and in the impugned order, the

learned District Munsif-cum-Judicial Magistrate, Pochampalli, has clearly

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Crl.R.C.No.466 of 2022

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 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 https://www.mhc.tn.gov.in/judis

Crl.R.C.No.466 of 2022

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 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 has

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 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

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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 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

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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 the petitioner herein is the sole accused and

further that already confiscation proceedings are started, allowing this

revision petition would futile the entire 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 Judge 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