IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 07.04.2011 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.RC.No.501/2011 Sakthidevi .. Petitioner/ Petitioner/ accused Versus State by The Inspector of Police Thittachery Police Station Nagapattinam District. ..Respondent/ Respondent/ Complainant (Crime No.314 of 2010) Revision filed under section 397 & 401 Cr.P.C., to set aside the order passed by the learned Judicial Magistrate No.2, Nagapattinam in Crl.MP.No.472/2011 dated 08.02.2011 and to direct the learned Judicial Magistrate No.2, Nagapattinam to return the Tata Sumo Car bearing Registration No.TN-51-P-2826 seized by the respondent police in crime No.314/2010 on the file of the Inspector of Police, Thittachery Police Station, Nagapattinam District. For Petitioner : Mr.M.Sathish Kumar For Respondent : Mr.V.R.Balasubramaniam,APP ORDER The revision petitioner has come forward with this revision challenging the order of the learned Judicial Magistrate No.2, Nagapattinam dated 08.02.2011 in Crl.MP.No.472/2011 in Crime No.314/2010, dismissing the petition filed by the petitioner seeking for the relief of the return of the vehicle, viz., Tata Sumo Car bearing Registration No.TN-51-P-2826. 2.The learned counsel for the petitioner submitted that the petitioner is the owner of the Tata Sumo Car and she is not an accused in the case and only the husband of the revision petitioner is an accused who has been implicated for the offencs u/s.4[1][aaa] read with 4[1-A] of TNP Act and u/s.5 & 6 of the Tamil Nadu Rectified Spirit Rules. The learned counsel would https://hcservices.ecourts.gov.in/hcservices/ submit that the learned Magistrate dismissed the petition mainly on the ground of initiation of the confiscation proceedings. It is contended that this court held in number of matters that pending confiscation proceedings is not a bar for the return of vehicle. 3.Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor appearing for the respondent would submit that the vehicle involved in this matter was seized for the commission of the offences under the Tamil Nadu Prohibition Act. It is further submitted that the confiscation proceedings were already initiated and the same is pending as on date. The learned Additional Public Prosecutor would place reliance on the Judgment of a Division Bench of this court in Contempt Petition No.1156/2009 [DAVID Vs. SHAKTHIVEL, Inspector of Police-cum- Station House Officer] dated 08.01.2010. It is pointed out by the learned Additional Public Prosecutor that the Division Bench has held that the granting the relief of interim custody u/s.451 Cr.P.C., in respect of the vehicle involved in the Prohibition offences is not automatic one and the spirit of the provision u/s.14[4] of the Tamil Nadu Prohibition Act should be taken note of and the power u/s.451 Cr.P.C., has to be exercised judiciously. It is also pointed out that certain guidelines were also stipulated by the Division Bench in the said decision. 4.This court carefully considered the rival contentions put forward on either side and also perused the materials available on record including the impugned order passed by the learned Judicial Magistrate No.2, Nagapattinam. 5.At the outset, it is be stated that the petitioner is only the owner of the vehicle and she has not been implicated in this case as an accused. It is seen that the husband of the revision petitioner has been implicated and the vehicle was seized on the allegation of commission of the prohibition offence. The perusal of the impugned order discloses that it is stated by the learned Magistrate that the confiscation proceedings have already been initiated in respect of the vehicle involved in this matter and the same is pending. It is further observed by the learned Magistrate that the vehicle was also not produced before the court below. Therefore, the learned Magistrate mainly dismissed the petition filed for the return of the interim custody of the vehicle on the ground of the pending confiscation proceedings. This court is of the considered view that the learned Magistrate has not assigned any other valid reasons to reject the petition. It is needless to state that mere pendancy of the confiscation proceedings is not a bar for granting the relief of interim custody of the vehicle u/s.451 https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. The fact remains that the vehicle was seized as early as on 31.10.2010 and the confiscation proceedings are pending even as on date. Therefore, it is crystal clear that there is no progress in the confiscation proceedings. On the other hand, the vehicle is exposed to sun and rain resulting in the deterioration of the condition day-by-day and in such an event, it is needless to state that the petitioner would be put into great hardship and irreparable loss. 6.It is also relevant to note that this court in G.CHANDRAMOHAN Vs. STATE BY THE INSPECTOR OF POLICE, PROHIBITION ENFORCEMENT WING, KUMBAKONAM [TK], THANJAVUR DISTRICT reported in 2005 [1] LW [Cri.] 93 that:- "..... Even if any proposal is made out for confiscation of the vehicle, the interim custody will not be a bar. If confiscation proceedings are initiated, appropriate orders could be passed." 7.It is well settled law laid down by the Hon'ble Apex Court in Sunderbhai Ambalal Desai case reported in 2003 SCC (Cri) 1943, wherein Hon'ble Apex Court has held: “The powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1.owner of the article would not suffer because of its remaining unused or by its misappropriation; 2.court or the police would not be required to keep the article in safe custody; 3.if the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4.this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. Basavva Kom Dyamangouda Patil v. State of Mysore, (1977) 4 SCC 358 : 1977 SCC (Cri) 598, relied on Vehicles https://hcservices.ecourts.gov.in/hcservices/ “It is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles”. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. However these powers are to be exercised by the Magistrate concerned. The Magistrate concerned would take immediate action for seeing that powers under Section 451 Cr.P.C are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly”. The Hon'ble Apex Court in the subsequent decision in respect of the very same case, namely, in Sunderbhai Ambalal Desai case reported in 2003 SCC (Cri) 1440 further clarified that : https://hcservices.ecourts.gov.in/hcservices/ “Further, with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the court and the seizure report may be sufficient”. 8.The learned Additional Public Prosecutor brought to the notice of this court that a Division Bench of this court in Contempt Petition No.1156/2009 [DAVID V. SHAKTHIVEL, The INSPECTOR OF POLICE CUM STATION HOUSE OFFICER] vide order dated 08.01.2010, has stipulated certain guidelines for granting the relief of interim custody of the vehicle involved in the prohibition offence as per the provision u/s.451 Cr.P.C. The Division Bench in the said decision, has held as here under:- "28.We deem it fit to issue the following directions:- "Whenever seizure of properties involved in the commission of offence under Prohibition Act, exercise of power is not automatic. Court should afford sufficient opportunity to the prosecution to inform the court about the steps taken by the investigating Agency. Keeping in view the spirit of section 14[4] of TNP Act, court on its own should ascertain whether any confiscation proceedings has been initiated and the stage of confiscation proceedings." "After affording sufficient opportunity to the prosecution and only after ascertaining about the steps taken for initiation of confiscation proceedings, court could exercise its discretion u/s.451 or 457 Cr.P.C. Court could judiciously exercise its discretion with due care and caution keeping in view the spirit of section 14[4] of TNP Act. Exercise of discretion under sections 451 or 457 Cr.P.C. is only after affording sufficient opportunity to the prosecution to get instructions. Subordinate Courts are directed to insist the Assistant Public Prosecutor to file written Memo as to the steps https://hcservices.ecourts.gov.in/hcservices/ taken under section 14[4] of TNP Act or otherwise could only on receipt of written memo, court could proceed to exercise its power u/s.451 or 457 Cr.P.C." "In case if the court orders interim custody of vehicle, the order should be speaking order recording reasons to order interim custody of the vehicle. In case if the Court orders interim custody of the vehicle. Court should obtain necessary undertaking from the owner of the vehicle to produce the vehicle as and when directed and send copy of undertaking to the District Collector / Prohibition Officer incharge of the District or other authorised officer in that behalf by the Government along with copy of the order passed by the Court. We direct the Registry to place this order before the Hon'ble The Chief Justice for getting approval for being circulated to all the Subordinate Courts in the State of Tamil Nadu." 9.It is seen that the said Judgment of this court is also circulated to the Subordinate Courts in the State of Tamil Nadu. The above guidelines stipulated by the Division Bench would make it crystal clear that the courts below shall pass an order u/s.451 or 457 Cr.P.C., by exercising its power and discretion judiciously. It is also made clear in the said guidelines that the spirit of section 14[4] of TNP Act should also be taken into consideration while passing an order granting the relief of interim custody of vehicle. Apart from such guidelines, it is also stipulated that the owner of the vehicle shall give an undertaking to produce the vehicle as and when required by the District Collector/Prohibition Officer in-charge of the District or authorised officer in that behalf by the Government. Therefore, is very clear that even the Division Bench has not given a finding to the effect that the pending confiscation proceedings is a bar for granting the relief of interim custody of the vehicle. It is also relevant to state that the Magistrate court is not prevented from making any order of interim custody as per the provision u/s.451 Cr.P.C., merely because the vehicle was not produced before the said court. as it is held by the Hon'ble Apex Court in the decision cited supra https://hcservices.ecourts.gov.in/hcservices/ that the production of the vehicle is not necessary for passing the order of interim custody of the vehicle. 10.In view of the aforesaid reasons, this court is constrained to set aside the order passed by the learned Judicial Magistrate No.2, Nagapattinam made in Crl.MP.No.472/2011 dated 08.02.2011 and the criminal revision is allowed. 11.The learned Judicial Magistrate No.2, Nagapattinam is directed to return the vehicle, viz., Tata Sumo Car bearing Registration No.TN-51-P-2826 on the following conditions:- (i) The petitioner shall produce the original RC Book and other relevant records to prove his ownership and the learned Magistrate, on perusal of the RC book and other records, retaining the Xerox copy of the same, shall return the original documents to the revision petitioner with a view to use the vehicle; (ii) The petitioner shall not alienate the vehicle in any manner till adjudication is over. (iii) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) to the satisfaction of the learned Judicial Magistrate No.1, Kancheepuram; (iv) The petitioner shall also give an undertaking that he 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 authorised officer in that behalf by the Government. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ap To 1.The Judicial Magistrate No.2 Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/ 2. do thro the Chief Judicial Magistrate Nagapattinam 3. The Judicial Magistrate No.1 Kancheepuram 4. Do thro the Chief Judicial Magistrate Kancheepuram 5. The Inspector of Police Thittachery Police Station Nagapattinam District. 6.The Public Prosecutor, High Court, Chennai. 7. The District Collector Nagapattinam 1 cc to Mr.M. Sathish kumar, Advocate, Sr. 25634 Crl.RC.No.501/2011 GV (CO) kk 29/4 https://hcservices.ecourts.gov.in/hcservices/