Allowed

Krishnamoorthy v. the Sub Inspector of Police

Madras HC2 Dec 2013CRL RC(MD)/797/2013

Case brief

AI extract

What is this about?

The Madurai Bench of Madras High Court allowed a criminal revision petition against an order declining interim custody of a lorry. The Court held that pendency of confiscation proceedings is not a bar to granting custody and directed the vehicle be released to the owner subject to a bond, undertaking, and periodic production.

What did the court decide?

The impugned order dismissing the interim custody petition was set aside. The vehicle is directed to be given to the petitioner subject to a bond of Rs. 25,000, surrender of R.C. Book, and an undertak

Krishnamoorthy Vs the Sub Inspector of Police — Property and Title | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 02.12.2013

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THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN

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CRL.R.C.(MD) No.797 of 2013

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Krishnamoorthy ... Petitioner/Petitioner

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Vs.

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State rep. by The Sub-Inspector of Police, Appayanaickanpatti Police Station, Virudhunagar District. In Crime No.130 of 2013. ... Respondent/Respondent

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Prayer: Criminal revision petition filed under Section 397 r/w 401 of Criminal Procedure Code to call for the records pertaining to the order passed in Cr.M.P.No.1321 of 2013 on the file of the learned Judicial Magistrate No.I, Sattur dated 20.11.2013 and set aside the same by allowing the Revision Petition.

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For Petitioner : Mr.A.Mohan For Respondent : Mrs.S.Prabha Government Advocate

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O R D E R

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This revision is filed challenging the order passed by the learned Judicial Magistrate No.I, Sattur, in Cr.M.P.No.1321 of 2013, dated 20.11.2013 dismissing the petition filed by the petitioner thereby declining to grant interim custody of the lorry bearing registration No.TN 60B 6579 involved in the crime on the ground that since confiscation proceedings have been taken, the vehicle cannot be returned to the owner of the vehicle.

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The petitioner is the owner of the vehicle namely lorry and according to the petitioner, the vehicle was forcibly taken by the respondent police from his house. Later he came to know that the said vehicle is said to have been involved in the case in Crime No.130 of 2013 for the alleged offence under Section 379 of I.P.C r/w 21(1) of Mines and Mineral Development and Regulation Act for carrying two units of sand in the said vehicle, without obtaining permission from the competent authority. The petitioner is arrayed as accused in this case and he filed a petition under Section 451 Cr.P.C. seeking for interim custody of the vehicle on the ground that it is kept in open space exposed to sun and rain and the condition of the vehicle will be deteriorated. The learned https://hcservices.ecourts.gov.in/hcservices/ Magistrate after hearing the objections on the respondent's side dismissed the said petition holding that it was not feasible to

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grant interim custody of the vehicle to the petitioner as confiscation proceedings was in progress. The said order was challenged in the present criminal revision case.

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The learned counsel for the petitioner submitted that the learned Judicial Magistrate failed to properly consider the scope of the powers conferred under Sections 451 and 457 Cr.P.C. and that on an erroneous impression that no interim custody of the vehicle can be granted to anybody claiming to be the owner or the person entitled to the custody thereof, if proceedings for confiscation of the said vehicle under Section 21(1) of Mines and Mineral Development and Regulation Act, is under contemplation. Therefore he would contend that the order is liable to be set aside and the relief sought for by the revision petitioner should be granted.

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In support of his contention, the learned counsel for the revision petitioner relied on the order passed by the learned Single Judge of this Court in Crl.O.P.No.5278 of 2007 dated 09.07.2010 in Sundaram Finance Ltd rep. by its Branch Manager Vs.State of Tamil Nadu rep. by Inspector of Police, Kaveripatttinam Police Station, Krishnagiri Taluk and Another . The learned counsel also drew the attention of this Court to yet another order passed by the learned Single Judge of this Court in Crl.R.C.No.501 of 2011 in Sakthidevi Vs. State by the Inspector of Police, Thitachery Police Station, Nagapattinam District.

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5. In the aforesaid decisions, the learned Single Judge after referring to the scope of the provision of Sections 451 and 457 Cr.P.C. and a number of judgments of this Court including the case in Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR (2003) SCC 638 observed in clear terms that the possibility of confiscation of the vehicle under Section 14(4) of the Tamil Nadu Prohibition Act or even the fact that the proceedings for confiscation under the said provision has been initiated and is pending will not be the sole ground on which the Court can exercise the discretion under Sections 451 or 457 Cr.P.C. against the person claiming to be the owner or otherwise entitled to the custody of the vehicle. It has also been held that entrusting the interim custody of the vehicle to the person claiming to be the owner of the vehicle or otherwise entitled to its custody, shall not in any way come in the way of the Government or the Prohibition Officer passing an order of confiscation; that the interim custody granted by the court would be construed only as the custody of the court and the person to whom interim custody is granted shall hold it on behalf of the court and that while granting such interim custody, conditions can be imposed to the effect that the person seeking interim custody should give an undertaking to handover the vehicle to the Collector or https://hcservices.ecourts.gov.in/hcservices/ Prohibition Officer passing confiscation order if required to do so.

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Relying on the aforesaid decision, the learned counsel for the petitioner submitted that though the proceedings for confiscation are said to have been initiated since the vehicle has been exposed to sun and rain over a considerable period under that circumstances, the discretion of the court should have been exercised in favour of the petitioner.

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Per contra, the learned Government Advocate (Crl.side) reiterated the contention that was raised before the court below that the petitioner is not entitled to seek interim custody of the vehicle since confiscation proceedings have been initiated.

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In the light of decisions stated supra, there is no bar for granting interim custody of the vehicle which is sought to be confiscated pending conclusion of the confiscating proceedings. However, while exercising the discretion in favour of a person claiming to be the owner or otherwise is entitled to the property the court should also take into consideration the very fact that the proceedings for confiscation is also on its way and that while avoiding the waste of the property by allowing it to be lie idle by entrusting the custody of the vehicle to the petitioner, care should also be taken to incorporate the condition requiring an undertaking by the petitioner to produce the vehicle into the court as and when required by the court or to produce the same before the Collector or before the Prohibition Officer, in connection with the confiscation order proposed to be passed.

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In the said view of the matter, it is of no use to keep the seized vehicles in the Magistrate courts for a long period and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond as well as security for return of the said vehicles if required at any point of time. Therefore, this Court is of the view that the interim custody of the vehicle can be given to the petitioner on certain conditions in order to safe guard the production of the vehicle as and when required by the court.

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Accordingly, the order passed by the learned Judicial Magistrate No.I, Sattur, in Cr.M.P.No.1321 of 2013 dated 20.11.2013 is set aside and the Revision stands allowed. The interim custody of the vehicle namely lorry bearing registration No.TN 60B 6579 which was seized by the respondent/police in Cr.No.130 of 2013 on the file of the respondent police is directed to be given to the petitioner on the following conditions:

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i) The petitioner shall produce proof of ownership of the vehicle.

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https://hcservices.ecourts.gov.in/hcservices/ ii) The petitioner shall execute a bond for a sum of Rs.25,000/-(Rupees twenty five thousand only) with two sureties to the satisfaction of the learned Judicial Magistrate No.I, Sattur

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iii) The petitioner shall surrender the R.C.Book and the learned Judicial Magistrate No.I, Sattur is at liberty to return the R.C. Book for renewal of the registration or for insuring the vehicle. The R.C. Book can be obtained from the court by filing a petition and after the accomplishment of the purpose, the same should be returned to the court; and

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iv) the petitioner shall also file an affidavit of undertaking to the effect that

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a) he will not alienate the vehicle without obtaining an order from the learned Judicial Magistrate No.I, Sattur;

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b) he will produce the said vehicle before the court as and when summoned to produce the same and

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c) no major alteration excepting the necessary repairs to make the vehicle road worthy shall be made

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v) The petitioner shall also give an undertaking to produce the vehicle as and when required by the District Collector/Revenue Divisional officer in charge of the District or Officer authorised in that behalf by the State Government.

Sd/-

Assistanct Registrar

/True copy/

Sub Assistant Registrar

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