IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA Crl.R.C.No.38 of 2011 Saravanan .. Petitioner/Accused Vs. State by The Sub Inspector of Police, Magaral Police Station, Kancheepuram District .. Respondent/Complainant (Crime No. 612 of 2010) * * * PRAYER: Criminal Revision Petition filed under Sections 397 r/w 401 (1) of the Code of Criminal Procedure, praying to set aside the order dated 30.08.2010 made in Crl.M.P.No.1758 of 2010 in Cr.No.612 of 2010 on the file of the learned Judicial Magistrate No.II, Kancheepuram,and to return the vehicle of Toyota Qualis bearing Registration No.TN 07 U 6310 to the petitioner. For Petitioner : Mr.T.Munirathnam Naidu for M/s.G.Palani For Respondent : Mr.J.C.Durairaj Government Advocate (Crl.Side) O R D E R The petitioner has come forward with this revision challenging the order passed by the learned Judicial Magistrate No.I, Kancheepuram, dated 30.08.2010 made in Crl.M.P.No.1758 of 2010 dismissing the petition filed by the petitioner seeking the relief of interim custody of the vehicle, namely, Toyota Qualis bearing registration No.TN 07 U 6310. 2. Mr.T.Munirathnam Naidu, learned counsel for the petitioner, would submit that the petitioner is the owner-cum- driver of the vehicle namely, Toyota Qualis bearing registration No.TN 07 U 6310 and he has been arrayed as A1 in this case for the offences under Sections 4(1)(aaa), 4(1-A) TNP Act r/w Sections 6 and 11 of R.S.Rules, 2000. It is contended that the vehicle of the petitioner was seized by the respondent police on 26.07.2010 on the allegation that the said vehicle was used for commission of the above said offences, viz., transporting liquor. The learned counsel for the petitioner would submit that the petitioner has been falsely implicated in this case and he has nothing to do with the alleged offences and he is totally unaware about the purpose for which the vehicle has been taken for https://hcservices.ecourts.gov.in/hcservices/ hiring. It is contended that the vehicle is exposed to sun and rain and therefore, the condition of the vehicle is deteriorating day-by-day, as a result, the petitioner would be put into great hardship and irreparable loss as the vehicle is the sole source of income for his family. The learned counsel would submit that the learned Magistrate has not assigned any valid reason for rejecting the petition filed by the petitioner for return of the vehicle except stating in the impugned order that the confiscation proceedings have been initiated. 3. Mr.J.C.Durairaj, learned Government Advocate (Crl. Side), would submit that the petitioner has been implicated as one of the accused and arrayed as A1. It is contended that the petitioner has driven the vehicle on the date of occurrence and as such, he is not entitled to seek the relief of return of vehicle. It is further submitted that the confiscation proceedings have already been initiated and the vehicle has been handed over to the Prohibition Officer and as such, the relief cannot be granted. 4. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned order. 5. It is seen that the petitioner is said to be the owner-cum-driver of the vehicle, namely, Toyota Qualis bearing registration No.TN 07 U 6310 and he has been implicated in a criminal case for the alleged offences, as stated above, as he has been arrayed as A1 in that case. This Court is of the considered view that no prejudice would be caused to the prosecution in the event of granting the relief of interim custody of the vehicle of the petitioner as the same is exposed to sun and rain right from the date of seizure, i.e., from 26.07.2010 and further there is also reasonable apprehension of missing important parts of the vehicle and as a result, it is no doubt that the condition of the vehicle would be deteriorated day-by-day and in such event, the petitioner would be put in to great hardship and irreparable loss as the vehicle is the only source of income for the family. It is also seen that in the impugned order the learned Magistrate has stated that confiscation proceedings have already been initiated and the vehicle has been handed over to the Prohibition Officer. This court is of the considered view that confiscation proceedings is not a bar in granting the relief of interim custody of the vehicle. 6. At this stage, it is relevant to refer to the decision of the Hon'ble Apex Court in Sunderbhai Ambalal Desai -Vs- State of Gujarat With reported in 2003 SCC (Cri) 1943. The Hon'ble Apex Court in the said decision has held as hereunder : “The powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: https://hcservices.ecourts.gov.in/hcservices/ 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 “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 https://hcservices.ecourts.gov.in/hcservices/ 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”. 7. 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 as hereunder : “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”. The Hon'ble Apex Court in the decision cited supra has laid down the above said guidelines in respect of return of properties, namely, valuable articles, currency notes and vehicles. It is emphasised by the Hon'ble Apex Court that the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. 8. In view of the above said reasons coupled with the principles and guidelines stipulated by the Hon'ble Apex Court in the decisions cited supra, this Court is constrained to set aside the impugned order passed by the learned Judicial Magistrate No.II, Kancheepuram, dated 30.08.2010 made in Crl.M.P.No.1758 of 2010 and consequently, the learned Judicial Magistrate is directed to return the vehicle to the interim custody of the petitioner on the the following conditions: a) the petitioner shall establish his ownership of the vehicle by producing the necessary original R.C. Book and other relevant records; b) the petitioner shall not alienate the vehicle in any manner till adjudication is over; c) the petitioner shall execute a bond for a sum of Rs.3,00,000/- (Rupees three lakhs only), to the satisfaction of the Judicial Magistrate No.II, Kancheepuram,; and d) the petitioner shall produce the vehicle as and when required by the trial court. This Criminal Revision Petition is ordered accordingly. gg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Judicial Magistrate No.II, Kancheepuram. 2.Do Through the Chief Judicial Magistrate, Chengalpattu. 3.The Sub Inspector of Police, Magaral Police Station, Kancheepuram District. 4.The Public Prosecutor High Court, Madras. NG(CO) SR/6.1.2011 Crl.R.C.No.38/2011 https://hcservices.ecourts.gov.in/hcservices/