Allowed

Jeyaram Shankar v. The Additional Superintendent of Police

Madras HC19 Aug 2020WP(MD)/4815/2020

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court allowed a Writ Petition directing police to release the petitioner's vehicle seized in connection with prohibition offence proceedings. The Court held that since no confiscation order under Section 14 of the Tamil Nadu Prohibition Act was passed, the vehicle must be produced before the jurisdictional court for the petitioner to apply for return under Sect

What did the court decide?

Respondents directed to release the vehicle subject to undertaking not to alienate it and to produce it for enquiry, allowing petitioner to apply for return under Section 451 Cr.P.C.

Jeyaram Shankar Vs The Additional Superintendent of Police — Property and Title | Madras HC (2020)

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W.P.(MD)No.4815 of 2020

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.08.2020

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CORAM

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THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

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W.P.(MD)No.4815 of 2020

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Jeyaram Shankar ... Petitioner

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Vs.

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1.The Additional Superintendent of Police, Prohibition and Excise Wing (PEW) Virudhunagar District, Virudhunagar.

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2.The Inspector of Police, Thiruchuli Police Station, Thiruchuli, Virudhunagar District. (In Crime No.334 of 2019) ... Respondents

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Prayer: Writ petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, to direct the first respondent to release the petitioner's vehicle by branding name “Hundai Xcent” bearing Registration No. TN 67 BY 1920 pending disposal of the confiscation proceedings of the first respondent Police Station in connection with FIR in Crime No.334 of 2019 on the file of the second respondent.

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For Petitioner : Mr.A.Balaji For Respondents : Mr.P.Mahendran, Additional Government Pleader

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O R D E R

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Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.

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2.The petition mentioned vehicle was seized in connection with Crime No.334 of 2019 registered on the file of the second respondent for the offence under Section 279 IPC, Section 4(1)(aa) and 14 A of Tamil Nadu Prohibition Act, 1937. It is not in dispute that till now no confiscation order under Section 14 of the Tamil Nadu Prohibition Act has been passed. It is also not in dispute that the vehicle has not been produced before the jurisdictional Criminal Court.

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3.In similar circumstances, this Court vide order dated 09.07.2020 in W.P.(MD)No.2679 of 2020 (Sathiah v. The State of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu and Others) has passed the following order:-

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W.P.(MD)No.4815 of 2020

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“Heard the learned counsel on either side.

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The petition mentioned vehicle belongs to the petitioner herein. It appears that the said vehicle was involved in Crime No.231 of 2019, registered on the file of the third respondent under Tamil Nadu Prohibition Act, 1937. The petitioner's son Karthick was arrested and he was found in possession of 384 Brandy Bottles. The petitioner's son was said to have driven the said vehicle at the relevant point of time. The grievance of the petitioner is that the vehicle in question has not been produced before the Judicial Magistrate till date. His further apprehension is that even without complying the necessary procedures, the second respondent is likely to auction the vehicle, which necessitated the petitioner to file the present Writ Petition.

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The learned counsel for the petitioner placed

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reliance on the order dated 06.06.2019 made in Crl.O.P.No.11945 of 2019, wherein the learned judge has observed as follows:-

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11.The provisions of Section 49A of the Tamil Nadu Forest Act does not in any way take away the jurisdiction of the Magistrate Court to exercise its power under Section 451 or 457 of Cr.P.C. The confiscation of a vehicle involved in the commission of an offence under the Tamil Nadu Forest Act is not only punitive in nature but also a deterrent. When a vehicle is involved in the commission of offence under the Tamil Nadu Forest Act and there are prima facie materials to show that the owner of the vehicle did not have any knowledge or connivance in the commission of the offence, he can always file an application for return of vehicle under Section 451 or 457 of Cr.P.C. But, however the Court while exercising its powers will have to do it with care and caution and should provide an opportunity to the Public Prosecutor and also must keep in mind the spirit behind Section 49A of the Tamil Nadu Forest Act, 1882 and its benevolent object.

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12.Even though, the Judgment cited by the learned counsel for the petitioner deals with the case under the Tamil Nadu Prohibition Act, the ratio in the said Judgment can be applied even in a case where confiscation proceedings have been initiated under the Tamil Nadu Forest Act.

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

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W.P.(MD)No.4815 of 2020

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13.In view of the above, the reason given by the Court below for returning the petition filed by the petitioner is unsustainable and the same is hereby setaside. The Court below is directed to consider the petitioner afresh by keeping in mind the judgment of the Hon'ble Division bench referred supra and after affording an opportunity to the prosecution. This exercise shall be completed by the Court below within a period of one month from the date of a receipt of copy of this order.

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The learned Government counsel wanted to rely upon

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G.O.Ms.No.39 dated 22.10.2019, Home, Prohibition and Excise (VIII) Department to sustain his contention that the second respondent can very well auction the vehicle in question. But the said Government order will come into play after the confiscation is done under Section 14 of Tamil Nadu Prohibition Act 1937. In this case, there is nothing on record to show the fulfillment of formalities set out in Section 14(4) of the Tamil Nadu Prohibition Act. Therefore, the question of auctioning the vehicle even without formal confiscation does not arise at all. Also, it does not mean that the vehicle involved in criminal case should not be produced before the Jurisdictional Court. In fact, the provisions of Criminal Procedure Code envisage that the seized vehicle should be produced before the Jurisdictional Court and the party concerned can avail the right to claim the vehicle by way of interim or final custody.

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5.Therefore, I direct the respondents to produce the vehicle in question before the jurisdictional criminal Court without any further delay. Upon such production, it is open to the petitioner to apply for return under Section 451 of Cr.P.C. Of course, the authorities are at liberty to take action to confiscate the vehicle as per law.

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In the above terms, the Writ Petition is allowed. No costs.”

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4.The petitioner's counsel on instructions gives an undertaking that the petitioner will not alienate the petition mentioned vehicle till the confiscation proceedings are over. He also gives a further undertaking that the petitioner will also produce the vehicle as and when the respondents call for the vehicle for enquiry and cooperate with the enquiry to be conducted by the respondents.

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The petitioner's counsel further submitted that the vehicle was seized some 8 months back and that it has been in the custody ever since. Hence, I am of the view that the condition regarding https://hcservices.ecourts.gov.in/hcservices/ payment of cost can be dispensed with in this case.

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W.P.(MD)No.4815 of 2020

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6.Therefore, the respondents are directed to release the said vehicle subject to the following conditions:

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a) The petitioner shall not alienate or encumber the vehicle till the proceedings are completed.

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b)The petitioner shall produce all the documents pertaining to the ownership of the seized vehicle.

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c)As and when the respondents call for the vehicle for

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enquiry, the petitioner has to produce the vehicle in question and he shall cooperate with the enquiry to be conducted by the respondents.

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Upon completion of these formalities, the respondents shall release the vehicle forthwith without any delay. If this undertaking given by the petitioner is breached, the petitioner will not be entitled to interim release of the vehicle in future. This Court only ordered interim custody in favour of the petitioner. The confiscation proceedings can independently go on. The Writ Petition is allowed accordingly. There shall be no order as to costs.

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// True Copy //

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Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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To:

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1.The Additional Superintendent of Police, Prohibition and Excise Wing (PEW) Virudhunagar District, Virudhunagar. 2.The Inspector of Police, Thiruchuli Police Station, Thiruchuli, Virudhunagar District.

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