Madras High Court
Elumalai vs The State Rep. By on 17 June, 2022
Crl.R.C.No.748 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.748 of 2022
Elumalai .. Petitioner
Versus
The State rep. By
The Inspector of Police,
Prohibition Enforcement Wing,
Hosur,
Krishnagiri District. .. Respondent
Prayer: Criminal Revision Case is filed under Section 397 and 401 of
Cr.P.C., to call for the records on the file of the learned Judicial Magistrate
No.II, Hosur, Krishnagiri District in Crl.M.P.No.1473 of 2022, dated
27.05.2022 and set aside the order, dated 27.05.2022.
For Petitioner : Mr.E.Kannadasan
For Respondent : Mr.S.Vinoth Kumar
Government Advocate
(Criminal Side)
https://www.mhc.tn.gov.in/judis
1/8
Crl.R.C.No.748 of 2022
ORDER
The petitioner is the lawful owner of the vehicle, being Maruti Suzuki
Celerio VXI BSIV, bearing registration No.TN 83 V 2386, which was seized
for involvement in an offence under Section 4(1)(a), 4(1-A) of Tamil Nadu
Prohibition Act in Crime No.693 of 2021 and was duly produced before the
learned Judicial Magistrate No.II, Hosur, Krishnagiri District. Thereafter,
the petitioner moved an application in Crl.M.P.No.1473 of 2022 for interim
custody of the vehicle which is dismissed by the order, dated 27.05.2022 on
the ground that confiscation proceedings are already initiated and pending
and therefore, it is not desirable to hand over the interim custody of the
vehicle to the petitioner. Aggrieved by the same, the present Revision Case
is laid before this Court.
2. Heard Mr.E.Kannadasan, learned Counsel for the petitioner and
Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) for the
respondent.
3. Mr.E.Kannadasan, the learned Counsel for the petitioner submitted
that even pending the confiscation proceedings, the vehicle can be returned
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.748 of 2022
and for the said proposition, he relied upon the orders of learned Single
Judges of this Court in (i) Crl.R.C.No.501 of 2011, dated 07.04.2011 in
Sakthidevi Vs. State; (ii) Crl.R.C.No.967 of 2020, dated 05.11.2020 in
Muthu Vs. State; (iii) Crl.R.C.No.323 of 2021, dated 04.06.2021 in Karthik
Vs. State; (iv) Crl.R.C.No.631 of 2021, dated 20.10.2021 in Rajendran Vs.
State. In all the above cases, the vehicle was ordered to be returned to the
original owner, after taking note of the fact that confiscation proceedings are
initiated. Therefore, the learned Counsel would pray that the vehicle can be
ordered to be returned which would be subject to the confiscation
proceedings.
4. Per contra, Mr.S.Vinoth Kumar, learned Government Advocate (Crl.
Side) for the respondent would rely upon the orders of this Court in
Crl.R.C.(MD).No.103 of 2018, dated 02.03.2018 in Mohammed Shakul
Hameed Vs. State and in Crl.R.C.No.466 of 2022, dated 13.04.2022 in
Raja Vs. State, whereunder, the learned Single Judges have taken a view
that it may not be open for the entrustment of interim custody, pending
confiscation proceedings. He would further submit that the order of the
learned Judge in Mohammed Shakul Hameed Vs. State is based on the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.748 of 2022
observations of the Division Bench in David Vs. Shakthivel [(2010(1) L.W.
(Crl.) 129] and therefore, would pray that the Revision be dismissed.
5. I have considered the rival submissions made on behalf of both the
sides and perused the material records of the case. Though there is a
cleavage of opinion and two divergent views are being taken in the various
judgments, which are referred on either side above, the Hon'ble Supreme
Court of India in its judgment in State of M.P. Vs. Uday Singh [(2020) 12
SCC 733] has held as follows:-
“29.4.......The jurisdiction under Section 451
CrPC was not available to the Magistrate, once
the authorised officer initiated confiscation
proceedings.”
6. Therefore, I have no other option than to follow the said view that
pending confiscation proceedings, it may not be open for entrustment of
interim custody. But, at the same time, it is seen that in this case even the
Trial Court's order was passed on 27.05.2022 and till date, the respondent
have not completed the confiscation proceedings. Therefore, I am inclined
to dispose off the Criminal Revision Case on the following terms:-
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.748 of 2022
(i) Since the confiscation proceedings are pending, the petitioner is
not entitled for return of the vehicle;
(ii) The respondent is directed to complete the confiscation
proceedings within one month from the date of receipt of copy of the order;
(iii) If the confiscation proceedings are not completed within the date
stipulated above, then the petitioner will be entitled for return of the custody
of the vehicle on the following conditions:-
(a) The order of the learned Judicial Magistrate No.II, Hosur,
Krishnagiri District, in Crl.M.P.No.1473 of 2022, dated 27.05.2022, is set
aside.
(b) The petitioner will be entitled for return of the Maruti Suzuki
Celerio VXI BSIV, bearing registration No.TN 83 V 2386;
(c) The petitioner shall produce the original RC Book of the vehicle
and other relevant records to prove its ownership and the learned Judge, on
perusal of the RC book and other records, retaining the Xerox copy of the
same, shall return the original documents to the petitioner with a view to use
the vehicle;
(d) The petitioner shall not alter or alienate the vehicle in any manner
till adjudication is over;
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.748 of 2022
(e) The petitioner shall also give an undertaking that it will not use
the vehicle for any illegal activities in future and also to produce the vehicle
as and when required by the respondent and by the court below and as well
as by the District Collector of the District or authorized officer in that behalf
by the Government.
(f) The petitioner shall participate in the confiscation proceedings, if
any, initiated and shall produce the vehicle before the confiscation
authority. This order is subjected to the confiscation proceedings.
(g) The petitioner shall not indulge in the similar offence either by
using the present vehicle or any other vehicle. If the petitioner is found to be
involved in any of similar offence in future either by way using the present
vehicle or through any other vehicle, this order of returning the present
vehicle (Maruti Suzuki Celerio VXI BSIV, bearing registration No.TN 83 V
2386), shall stand automatically vacated, and this vehicle will be again
seized by the respondent/police and produce before the Court concerned.
17.06.2022
Index : yes
Speaking order
grs
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.748 of 2022
To
1. The Judicial Magistrate No.II,
Hosur, Krishnagiri District.
2. The Public Prosecutor,
High Court of Madras.
3. The Inspector of Police,
Prohibition Enforcement Wing,
Hosur,
Krishnagiri District.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.748 of 2022
D.BHARATHA CHAKRAVARTHY, J.,
grs
Crl.R.C.No.748 of 2022
17.06.2022
https://www.mhc.tn.gov.in/judis
