Madras High Court
Sathish Kumar vs The Additional Superintendent Of ... on 31 January, 2022
W.P.(MD)No.1714 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)No.1714 of 2022
Sathish Kumar ... Petitioner
Vs.
1.The Additional Superintendent of Police,
(Prohibition Enforcement Wing),
Thoothukudi District,
Thoothukudi.
2.The Inspector of Police,
Masarpatti Police Station,
Thoothukudi District.
Crime No.15 of 2022 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Mandamus, to direct the
respondents to release the petitioner's Auto Rickshaw (APE AUTO
D3S PASSANGER) bearing Registration No.TN-69-BY-3756, seized
by the second respondent police, by consider the petitioner's
representation dated 21.01.2022, within a time stipulated by this
Court.
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W.P.(MD)No.1714 of 2022
For Petitioner : Mr.M.Jerin Mathew
For Respondents : Mr.M.Lingadurai,
Special Government Pleader
ORDER
***********
Mr.M.Jerin Mathew, learned Counsel on record for writ
petitioner is before this Court. Mr.M.Lingaudurai, learned Special
Government Pleader accepts notice on behalf of both the
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)(aa) and 14(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
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W.P.(MD)No.1714 of 2022
dated 18.09.2020 made by the other Hon'ble Judge in W.P.(MD)No.
12019 of 2020 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
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
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W.P.(MD)No.1714 of 2022
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 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
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W.P.(MD)No.1714 of 2022
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 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
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W.P.(MD)No.1714 of 2022
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.
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
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W.P.(MD)No.1714 of 2022
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 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
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W.P.(MD)No.1714 of 2022
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
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
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W.P.(MD)No.1714 of 2022
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.
7.Captioned Writ Petition is disposed of in aforesaid manner
i.e., with aforementioned directive without any order as to costs.
31.01.2022
Index : Yes / No
Internet: Yes / No
vsm
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.
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W.P.(MD)No.1714 of 2022
M.SUNDAR., J.
vsm
To
1.The Additional Superintendent of Police,
(Prohibition Enforcement Wing),
Thoothukudi District,
Thoothukudi.
2.The Inspector of Police,
Masarpatti Police Station,
Thoothukudi District.
ORDER MADE IN
W.P.(MD)No.1714 of 2022
31.01.2022
https://www.mhc.tn.gov.in/judis
