Madras High Court
Mahendra Kumar vs The State Of Tamil Nadu on 7 February, 2022
W.P. No.22287 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2022
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.No.22287 of 2021 and
W.M.P.Nos.23509 & 23510 of 2021
Mahendra Kumar ... Petitioner
Vs
1.The State of Tamil Nadu
Represented by the Commissioner & Secretary,
Prohibition and Excise Department,
Fort St. George, Chennai – 9.
2.Assistant Commissioner of Police,
Prohibition and Excise Wing Department,
PEW East Zone, Chennai – 600 003.
3.Inspector of Police,
PEW, Triplicane Unit,
Periamet, Chennai – 600 003.
4.The Regional Transport Officer,
TN-09-RTO, Chennai West,
K.K.Nagar, Chennai – 600 078.
5.S.Shravanth ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus to call for the
1/16
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
records, relating to the Impugned Proceedings of the 2nd respondent in
C.No.12/AC/PEW/EZ/2020 dated 29.10.2020 and quash the same and
consequently direct the 3rd respondent to return the subject vehicle.
For Petitioner : Mr.B.M.Subash
for Mr.A.P.Balaji
For Respondents : Mr.S.Ravichandran
Additional Government Pleader
(for R1 to R4)
ORDER
The prayer sought for herein is for a Writ of Certiorarified
Mandamus to call for the records, relating to the Impugned Proceedings
of the 2nd respondent in C.No.12/AC/PEW/EZ/2020 dated 29.10.2020
and quash the same and consequently direct the 3rd respondent to return
the subject vehicle.
2. It is the case of the petitioner that, the petitioner is the Financier
who financed a vehicle i.e. vehicle of Honda CRV with Registration
No.TN-07-CA-2277 to the owner by whom the vehicle was purchased on
hire purchase basis.
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
3. When that being so, the vehicle in question seems to have
involved in a crime under the Tamil Nadu Prohibition Act and
accordingly, on 15.07.2020 the vehicle in question was seized by the
respondent Police and ultimately, by order dated 29.10.2020, the
respondent by invoking the Power under Section 14(4) of the Tamil Nadu
Prohibition Act (in short 'the Act') has confiscated the vehicle.
4. Challenging the said order of confiscation dated 29.10.2020, the
petitioner moved the present writ petition with the aforesaid prayer.
5. Heard Mr.B.M.Subash, learned counsel appearing for the
petitioner, who would submit that, the order impugned is challenged
mainly on two grounds. The first ground is that, since the petitioner is the
Financier who financed the vehicle in question to purchase by the owner
on hire purchase basis, for all practical purposes, the petitioner shall be
treated as the owner. Therefore, he is entitled to get a notice of personal
hearing under Section 14(4) of the Act. However, in the entire episode of
the confiscation proceedings, which is culminated in the impugned order,
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
no such notice or opportunity been given to the petitioner, therefore, on
that ground, the impugned order is vitiated.
6. The second ground urged by the petitioner is that, even though in
the impugned order at para 2, it is stated that, notice dated 07.08.2020
was issued to the owner of the vehicle one Shravanth @ Saravanan
S/o.Selvasekaran, as per the R.C. Book endorsement, in the counter
affidavit, they have stated that, they issued a notice to one Kothari who is
the Financier of the vehicle in question, according to the respondents and
in this regard, the said Kothari never been the Financier of the vehicle in
question instead, the petitioner is the Financier. Therefore, if at all the
respondents chosen to give notice to the Financier as a real owner of the
vehicle, because, who have financed for the purchase of the vehicle on
hire purchase basis, such notice should have been given only to the
petitioner. Therefore, without giving a notice to the petitioner, if the
confiscation proceedings went on and culminated in the order of
confiscation, which is impugned herein, the same is infirm and therefore,
on these two grounds, the impugned order is liable to be set aside, he
contended.
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
7. The learned counsel appearing for the petitioner would further
contend that, if the mandatory procedure as required under Section 14(4)
is not followed strictly by the respondents in initiating and completing the
confiscation proceedings, on the said ground of non-following of the
procedure contemplated under Section 14(4) itself, the confiscation
proceedings is liable to be set aside and in this context, the learned
counsel relies upon a decision of the learned Judge of this Court made in
W.P.No.22011 of 2002 dated 27.10.2006 in the matter of M.Saravanan
Vs. The District Prohibition Officer cum Additional Superintendent of
Police, Prohibition and others.
8. Per contra, Mr.S.Ravichandran, learned Additional Government
Pleader appearing for respondents 1 to 4 would submit that, under the
power vested with the Prohibition Officer concerned under Section 14(4)
of the Act, proceedings separately can be initiated for confiscation of the
vehicle in question, unmindful of any other proceedings initiated or not
initiated for the offence committed by the person through the vehicle in
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
question violating the Prohibition Act. Under the said power, proceedings
have been initiated for confiscation, part of which, notice has been issued
to the owner of the vehicle as per the R.C. Book endorsement,
accordingly, since one Shravanth @ Saravanan was the owner of the
vehicle, notice dated 07.08.2020 was issued on him, he on receipt of the
same, not even has chosen to give any reply to the show cause notice.
Therefore, he remained exparte despite the notice having been served on
him. Hence, the question of giving any further notice either to the same
Shravanth being the owner of the vehicle or to the Financier i.e. the
petitioner as claimed by him, because the language used in proviso to
Section 14(4) of the Act only makes that, either owner of the vehicle or
the person from whom the vehicle was seized, is entitled to get notice as
well as the personal hearing. Therefore, if strictly construed the said
proviso to Section 14(4) of the Act, it is not mandatory that, the notice
shall be given to the Financier like the petitioner since the notice has
already been given to the person whose name has been shown in the R.C.
Book as owner of the vehicle. Therefore, the procedure, as has been
contemplated under Section 14(4) of the Act, since have been followed
scrupulously, there is no question of any infirmity as claimed by the
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
petitioner in the confiscation proceedings, which culminated in the
impugned order, therefore, it does not require any interference from this
Court, he contended.
9. I have considered the said rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
10. The first ground urged by the petitioner counsel is that, under
Section 14(4), notice should have been given to the Financier who is the
real owner of the vehicle in question, which was admittedly purchased by
the owner of the vehicle on hire purchase basis.
11. In this context, if we look at the language used in Section 14(4)
of the Act, especially, under the proviso it is made clear that, before
passing an order of confiscation, the owner or the person from whom
such animal, vessel, cart or other vehicle is seized, shall be given a notice
in writing, an opportunity of making a representation in writing within a
reasonable time to be given and a reasonable opportunity of being heard
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
in the matter shall be given.
12. In the case in hand, the vehicle was seized from the owner of
the vehicle based on the R.C. Book endorsement. In this regard, the copy
of the R.C. Book also has been filed by the petitioner in the typed set of
papers which discloses that, the date of registration of the vehicle is
14.07.2014; the vehicle Registration No.TN07CA2277; Owner's name
Shravanth S, Son of Selvasekaran; Address is No.B 3 Alsa Cross Court,
APTS Londans Road, Kilpauk, Chennai TN 600 010.
13. If this is the Registration Certificate of the vehicle in question, it
clearly discloses that, one S.Shravanth @ Saravanan is the owner of the
vehicle. Based on this R.C. Book endorsement, the notice under Section
14(4) proviso has been issued by the respondent on 07.08.2020 to the
said owner of the vehicle in question i.e. Shravanth, who, on receipt of the
same, has not chosen to give any reply to the said show cause notice. This
has been stated in para 2 of the impugned order which reads thus:
“2/nghyp!; tprhuizapy; nkw;go tHf;fpy;
nkw;fz;l kJghl;oy;fis flj;j cgnahfpj;j
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
thfdk; TN-07-CA-2277 vd;w gjpt[ vz;
bfhz;l Honda CRV ehd;F rf;fu thfdj;jpd;
Mh;/rp/ (gjpt[ g[j;jfk;) chpikahsh; rute;j (v)
rutzd; t/40/ j/bg/ bry;tnrfud;. Vz;/B/3,
my;rh FWf;F ePjpkd;w mg;ghu;l;bkz;l;
nyz;ld;!; nuhL fPHg
vd;gtUf;F fhuzk; nfl;Fk; Fwpg;ghizia
07/08/2020 Mk; njjp md;W rhh;g[ bra;a
brd;wnghJ thfdj;jpd; chpikahsh; nkw;fz;l
fojj;ij bgw;Wf; bfhz;L ,Jehs; tiuapy;
vt;tpj gjpYk; bjhptpf;fhky; ,Ue;Js;sPh;/
Mfnt ePh; tpUk;g[k; gl;rj;jpy; thfdj;jpd; chpa
Mtz';fis rkh;gpj;J muR bjhHpy; El;g
ty;Ydh; FGtpduhy; eph;zapf;fg;gl;l thfd
re;ij kjpg;g[ bjhif U:/9.00.000/- (U:gha; xd;gJ
yl;rk; kl;Lk;)/ ,f;Fwpg;ghiz fpilj;j 10
jpd';fSf;F muR fUt{yj;jpy; brYj;jp
thfdj;ij jpUk;g bgw;Wf; bfhs;syhk; vd
,jd; K:yk; tha;g;gspf;fg;gLfpwJ/”
14. Since the owner of the vehicle though has received the notice
under Section 14(4) proviso from the respondents has not chosen to give
any reply or representation, the question of giving further opportunity of
being heard as part of the said proviso to Section 14(4) does not arise in
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
this case.
15. In this context, the facts of the case referred to in the case cited
by the petitioner side in the matter of M.Saravanan Vs. The District
Prohibition Officer (cited supra) remains that, in that case, there was a
notice issued under Section 14(4) to the owner of the vehicle, who on
receipt of the same, has chosen to give reply or representation. On receipt
of the same, without considering the same and without giving any further
opportunity of being heard, as it is being one of the requirement to be
fulfilled by the prohibition authorities who initiated the confiscation
proceedings, since the Officer concerned has proceeded with the
confiscation and passed an order of confiscation, that was found to be
infirm by the learned Judge and in this regard, the learned Judge has
made the following order:
“11. But it is seen from the impugned order that though the
first respondent followed the procedure detailed above
partly, the first respondent did not hold any enquiry. In
other words, the first respondent issued a show cause
notice as required under Clause (i) of the First Proviso
under Section 14(4) of the Act and also gave an
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
opportunity of making a representation to the petitioner as
required under Clause (ii) of the said Proviso. However,
the first respondent did not provide a reasonable
opportunity of being heard to the petitioner, as seen from
the impugned order itself. It is seen from paragraph-5 of
the impugned order that after issuing a notice and
receiving a representation from the petitioner, the first
respondent proceeded to pass the impugned order without
giving an opportunity of being heard to the petitioner.
Thus, the procedure contemplated under the aforesaid
Section 14(4) of the Act, has been violated by the first
respondent, rendering the impugned order liable to be set
aside.”
16. However, in the case in hand, the notice has been issued to the
owner of the vehicle and who on receipt of the same, has not chosen to
give a reply. Therefore, the question of giving further notice for personal
hearing to the owner of the vehicle does not arise as there was no reply or
representation given by the owner of the vehicle in respect of the show
cause notice issued under Section 14(4) on 07.08.2020. There was no
other consideration, from the point of view of the owner of the vehicle, to
be made by the Confiscating Officer excepting to go into the other
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
available records pertaining to the vehicle in question, which was seized
by the respondent authorities/Police and since a case has been registered
and what has been recovered from the vehicle concerned at the time of
inspection and seizure of the vehicle also has been considered and
discussed by the Officer concerned in the confiscation proceedings itself.
17. Therefore, on the basis of the facts of the present case, the
judgment cited by the learned counsel appearing for the petitioner, in the
considered opinion of this Court, would not apply to the facts of the
present case. Therefore, the said judgment would be of no use for the
petitioner to advance his case.
18. Coming to the other point raised by the petitioner counsel, that
apart from the person who has been shown as the owner of the vehicle in
the R.C. Book since the real owner is the Financier, the final notice
should have also been given to the petitioner is concerned, the said
argument is deserved to be rejected, because, the language used in the
proviso to Section 14(4), as has been already discussed, has made it clear
that, the owner or the person from whom such vehicle is seized, that
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
means, notice either can be given to the owner or even to the person from
whom the vehicle seized.
19. Here in the case in hand, the notice has been given to the
owner. Owner means, the name of the owner mentioned in the
Registration Certificate of the vehicle concerned. Assuming that, the
person whose name has been shown is not the owner of the vehicle, that
issue cannot be resolved by the prohibition authorities as they have to go
only on the basis of the record i.e. Registration Certificate.
20. Merely because the petitioner claimed to be the Financier and
the vehicle has been purchased by way of hire purchase agreement, that
would not ipso facto give any entitlement to the petitioner to seek
personal notice or hearing under the proviso to Section 14(4) of the
Prohibition Act. Therefore, on that ground, the petitioner cannot
successfully challenge the impugned order of confiscation.
21. Therefore, for all these reasons stated above, the grounds urged
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
by the petitioner side, as projected by the learned counsel for the
petitioner against the impugned order, would not be sustained and this
Court since does not found any plausible reasons to interfere with the
impugned order, the impugned order is to be sustained.
22. In the result, this Writ Petition fails, hence it is deserved to be
dismissed, accordingly, it is dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
07.02.2022
Index : Yes
Speaking Order : Yes
Sgl
To
1.The Commissioner & Secretary,
State of Tamil Nadu
Prohibition and Excise Department,
Fort St. George, Chennai – 9.
2.Assistant Commissioner of Police,
Prohibition and Excise Wing Department,
PEW East Zone, Chennai – 600 003.
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
3.Inspector of Police,
PEW, Triplicane Unit,
Periamet, Chennai – 600 003.
4.The Regional Transport Officer,
TN-09-RTO, Chennai West,
K.K.Nagar, Chennai – 600 078.
https://www.mhc.tn.gov.in/judis
W.P. No.22287 of 2021
R. SURESH KUMAR, J.
Sgl
W.P. No.22287 of 2021
07.02.2022
https://www.mhc.tn.gov.in/judis
