Allowed

Sankar v. Additional Superintendent

Madras HC2 Sept 2014WP/22337/2014

Case brief

AI extract

What is this about?

The High Court set aside an impugned order confiscating the petitioner's vehicle under the Tamilnadu Prohibition Act. The court held that the order was passed without complying with mandatory procedural requirements, specifically the lack of notice specifying grounds for confiscation, failure to obtain a reply to prior correspondence, and absence of a personal hearing.

What did the court decide?

The writ petition is allowed; the impugned order of confiscation is set aside and respondents are directed to hand over the Toyota Qualis vehicle to the petitioner.

Sankar Vs Additional Superintendent — Property and Title | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 02-9-2014

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CORAM:

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THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN

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WRIT PETITION NO.22337 OF 2014 AND MP.NOS.1 AND 2 OF 2014

Sankar

…Petitioner

1.The Additional Superintendent of Police, Prohibition & Excise Wing Kancheepuram District.

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2.The Inspector of Police, D-4, Otteri Police Station, Kancheepuram District. …Respondents

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PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records from the first respondent of their proceeding order in Na.Ka.No.134/Ku.Kaa.Ka./ma.v.A.B/kanchi/ 2014 dated 6.8.2014, quash the same and consequently direct the respondents to hand over the Toyota Qualis car bearing regn.No.TN-07-T-3944 to the petitioner.

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For Petitioner : Mr.D.Magesh For Respondents : Mr.R.A.S.Senthilvel, AGP

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ORDER

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The petitioner has come up with the above writ petition challenging an order of confiscation of his vehicle passed under Section 14(4) of the Tamilnadu Prohibition Act, 1937.

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Heard Mr.D.Magesh, learned counsel for the petitioner and Mr.R.A.S. Senthilvel, learned Additional Government Pleader appearing for the respondents.

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The petitioner is the owner of the Toyota Qualis bearing regn.No.TN-07-T-3944. The car was intercepted by the police on 22.4.2014 and 22 liquor bottles of 180 ml each were seized. A complaint was registered in Cr.No.308 of 2014 on the file of the second respondent under Sections 4(1)(a) and 4(1A) of the Act.

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https://hcservices.ecourts.gov.in/hcservices/

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The petitioner filed C.M.P.No.2315 of 2014 on the file of the Judicial Magistrate No.2, Chengalputtu for the return of the vehicle. But, it was dismissed by the Trial Court on 4.7.2014. Therefore, the petitioner filed a revision in Crl.R.C.No. 715 of 2014 before this Court. When the revision came up for hearing on 8.8.2014, the Public Prosecutor informed the Court that an order of confiscation dated 6.8.2014 had been passed. Therefore, the revision petition was dismissed, leaving it open to the petitioner to work out his remedies against the order of confiscation. Thereafter, challenging the order of confiscation dated 6.8.2014, the petitioner has come up with the above writ petition under Article 226.

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Admittedly, the impugned order is passed under Section 14(4) of the Tamilnadu Prohibition Act. Section 14 of the Act not only empowers the Court as well as the Prohibition Officer to confiscate any article, but it also prescribes the procedure for such confiscation. Sub-Section (1) of Section 14 speaks about confiscation by the Court, after conviction or acquittal. Sub-Section (2) talks about confiscation by the Court during trial. Sub-Section (3) speaks about confiscation, in cases where an offence is committed, but the offender is not known or cannot be found. Sub-Section (4), which contains a non obstante clause, empowers the Collector or the Prohibition Officer to order confiscation, whenever he is satisfied that an offence is committed. The proviso to Sub-Section (4) prescribes the procedure to be followed, whenever the Collector or other Prohibition Officer decides to confiscate the vehicle.

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Sub-Section (4) of Section 14 requires reproduction. Hence, it is reproduced as follows :

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“Notwithstanding anything contained in Sub-Sections (1) to (3), the Collector or other Prohibition Officer in-charge of the district or any other officer authorized by the State Government in that behalf is satisfied that an offence has been committed against this Act and whether or not a prosecution is instituted for such offence, he may, without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of any animal, vessel, cart or other vehicle used in the commission of such offence:

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Provided that, before passing an order of confiscation, the owner or the person from whom such animal, vessel, cart or other vehicle is seized, shall be given –

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(i) a notice in writing informing him of the grounds on which it is proposed to confiscate the animal, vessel, cart or other vehicle;

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https://hcservices.ecourts.gov.in/hcservices/

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(ii) an opportunity of making a representation in writing within a reasonable time, not exceeding fourteen days, as may be specified in the notice, against the grounds of confiscation; and

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(iii) a reasonable opportunity of being heard in the matter:

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Provided further that the owner or the person from whom such animal, vessel, cart or other vehicle is seized shall be given an option to pay, in lieu of its confiscation, an amount not exceeding the market price of such animal, vessel, cart or other vehicle.“

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It may be seen from the first proviso to Sub-Section (4) that before passing an order of confiscation, three steps are to be followed by the officer concerned. They are (i) serving a notice in writing informing the person concerned, of the grounds on which it is proposed to confiscate the vehicle; (ii) giving an opportunity of making a representation within a reasonable time not exceeding 14 days; and (iii) giving a reasonable opportunity of being heard in the matter.

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A careful look at the impugned order shows that there is no indication in the impugned order that any of the above three steps were followed before passing the impugned order. There is no reference in the impugned order to any notice. There is also no reference in the impugned order to any reasonable opportunity of being heard.

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However, Mr.R.A.S.Senthilvel, the learned Additional Government Pleader produced the records. From the records produced by him, it appears that a notice dated 24.7.2014 was actually served on the petitioner, calling upon him to show cause against the confiscation. But, unfortunately, the show cause notice does not contain the grounds on which it is proposed to confiscate the vehicle. The requirement of clause (i) under the first proviso to Sub-Section (4) of Section 14 is that the grounds on which it is proposed to confiscate the vehicle should be informed in writing. But, no grounds are indicated in the show cause notice.

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Moreover, the alleged show cause notice dated 24.7.2014 proceeds on the basis as though the petitioner did not give any reply to a letter issued by the Inspector of Police. No such letter is found in the file and there is no reference to any such letter in the show cause notice dated 24.7.2014.

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https://hcservices.ecourts.gov.in/hcservices/

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The requirement of a reasonable opportunity of being heard, as per clause (iii) of the first proviso to Sub-Section (4), has also been not followed. No personal hearing was conducted before the impugned order is passed. In such circumstances, I am of the view that the impugned order is liable to be set aside.

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Accordingly, the writ petition is allowed and the impugned order is set aside. The respondents are directed to hand over the vehicle in question to the petitioner immediately upon production of a copy of this order. No costs. Consequently, the above MPs are closed.

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Sd/-
Assistant Registrar(CS-IV)
Dated: 04.09.2014
//True Copy//
Sub Assistant Registrar
To
1.The Additional Superintendent of Police,
Prohibition & Excise Wing
Kancheepuram District.
2.The Inspector of Police,
D-4, Otteri Police Station,
Kancheepuram District.
+ 2 ccs to Mr.D. Magesh, Advocate Sr.40835
WP.No.22337 of 2014&
MP.NOS.1 & 2 OF 2014
TEJ(CO)
Eu 05.09.14

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https://hcservices.ecourts.gov.in/hcservices/

Sankar v. Additional Superintendent

Case brief

What is this about?

What did the court decide?

Sankar v. Additional Superintendent

Case brief

What is this about?

What did the court decide?

What the court decided

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