(Prayer: Criminal Revision filed under Section 397 r/w 401 of CrPC to call for the records pertaining to call for the records of the Learned Judicial Magistrate, Pattukottai in Cr.M.P.No.6161 of 2015 dated 21.11.2015 and to set aside the same and further direct the Learned Judicial Magistrate, Pattukkottai to grant interim custody of vehicle viz., TATA ACE bearing Registration No.TN 31 AW 2399 to the petitioner.)
1. The Petitioner has focussed the instant Criminal Revision Case before this Court being aggrieved against the order dated 21.11.2015 in Cr.MP.No.6161 of 2015, passed by the Learned Judicial Magistrate, Pattukkottai.
2. The Learned Judicial Magistrate, Pattukkottai, while passing the impugned order in Cr.M.P.No.6161 of 2015, on 21.11.2015, had among other things observed that the vehicle bearing Regn.No. TN 31 AW 2399 (TATA ACE) was unable to be produced before the Court inasmuch as the Additional Superintendent of Police, Thanjavur, had stated that the confiscation proceedings in favour of the Government were to be initiated and furthermore, it was observed that the aforesaid four wheeler was not produced and viewed in that perspective, the petition filed by the petitioner under Sections 451 and 457 of Cr.P.C was ultimately dismissed.
3. Assailing the correctness, legality and validity of the dismissal order, passed by the trial court dated 21.11.2015, in Cr.M.P.No.6161 of 2015, the Petitioner has filed the instant Criminal Revision Case before this Court as an aggrieved person mainly contending that of initiating confiscation proceedings is not a bar for the trial court to invoke the ingredients of Section 451 r/w 457 of Cr.P.C.
4. The Learned counsel for the Petitioner urges before this Court that the petitioner had in fact produced all relevant documents to establish his ownership and if the vehicle in question is exposed to sun light and if it remains in open space, day-by-day, the condition of the vehicle will get deteriorated.
5. Advancing his arguments, the Learned counsel for the Petitioner proceeds to take a legal plea that since the case initiated before the trial Court was only at preliminary stage, the petitioner is ready and willing to abide by any condition to be imposed by this Court for the release of vehicle in question.
6. Continuing further, it is represented on behalf of the Petitioner that as a matter of fact, the confiscating authority can pursue his own proceedings and in fact, there is no bar in Law for the petitioner to seek the aid of ingredients of Section 451 of Cr.P.C.
7. It is submitted on behalf of the Petitioner that even after granting of interim custody of the vehicle in question, the confiscating authority can pursue his own proceedings irrespective of the order passed by the Learned Judicial Magistrate.
8. To fortify his contention, that of 'pendency of confiscation proceedings cannot be a bar for granting interim custody of vehicle', the Learned counsel for the Petitioner cites a decision of this Court Sakthidevi Vs State by the Inspector of Police, Thittachery Police Station, Nagapattinam District reported in (2011) 4 MLJ (Crl) at page 634 and 635, whereby and whereunder, it is observed and held as under:
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 pendency of the confiscation proceedings is not a bar for granting the relief of interim custody of the vehicle under Section 451 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.
The above guidelines stipulated by the Division Bench would make it crystal clear that the Courts below shall pass any order under Section 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, it 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 under Section 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 that the production of the vehicle is not necessary for passing the order of interim custody of the vehicle. ?
9. Furthermore, the Learned counsel for the Petitioner refers to the decision of this Court Malar Vs State, rep. by the Inspector of Police, Prohibition Enforcement Wing (PEW), Pattukkottai, Thanjavur District, reported in 2013 (2) CTC 315, wherein, at special page 318, wherein, at paragraph No.8, it is observed as follows:
"8. ....., 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 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."
10. Added further, in the aforesaid decision at page 318 and 319 at paragraph No.9, it is observed as follows:
"9. In the said view of the matter, it is of no use to keep the seized vehicles in the Magistrate Courts for a land 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 th e view that the interim custody of the vehicle can be given to the Petitioner on certain conditions in order to safeguard the production of the vehicle as and when required by the Court."
11. In response, the Learned Government Advocate (Crl.Side) appearing for the Respondent/State justified the order of dismissal made in Cr.M.P.No.6161 of 2015 dated 21.11.2015 by the trial Court. Apart from that, the Learned Government Advocate (Crl.Side) relies on the decision Oli Mohamed Vs State, rep. by the Inspector of Police, G-3 Kilpauk Police Station, Chennai-10, reported in 2015-2-LW. (Crl) page Nos.401 and 402, whereby and whereunder, it is observed and held as follows:
"The power of the competent authority, under the Tamil Nadu Prohibition Act, 1937, to confiscate the goods, vehicles, etc., has to be sustained also and therefore, the decision in Oma Ram's case can be relied on, for the present revision case, which arises, under the Tamil Nadu Prohibition Act, 1937.
'Property', as per the Code, is any property, regarding which an offence appears to have been committed, or appears to have been used for the commission of any offence. It shall also include such property, as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise'.
Thus, confiscation is one of the modes of disposal of the property, after inquiry or trial. But Section 14(4) of the TNP Act, 1937, a special statute provides for disposal of the property in an offence, even before the inquiry or trial and such provision, in the humble opinion of this Court, would displace the provisions of the Code, which is a general law. Sub-Sections (4) and (5) of Section 14 of the Act, have been substituted by Section 2 of the Tamil Nadu Prohibition (Second Amendment) Act, 1990 (Tamil Nadu Act 24 of 1990).
Section 14(4) of the Tamil Nadu Prohibition Act, 1937, completely covers the field of operation, as regards the powers of the competent authorities to order for confiscation. The saving provision in Section 5 of the Code, will not affect (i) any special law, (ii) any local law, (iii) any special jurisdiction or power, and (iv) any special form of procedure, prescribed in any other law, for the time being in force and in the case on hand, as regards the power of the competent authorities to order for confiscation, it is provided under the Tamil Nadu Prohibition Act, 1937.
Comparative reading of the provisions in the Code and the Tamil Nadu Prohibition Act, 1937, regarding the disposal of the property, which includes confiscation, makes it clear that the Code of Criminal Procedure, is not exhaustive, but recognises the special enactments, and in the case on hand, the Tamil Nadu Prohibition Act, 1937. The term Special Jurisdiction is not defined in the Code, but the words Special Laws are defined in the Indian Penal Code to mean a law applicable to a particular subject. Indisputably, the Tamil Nadu Prohibition Act, 1937, is a special enactment and Section 14(4) of the Act, confers special powers and jurisdiction on the Collector or other Prohibition Officer in-charge of the district or any other officer authorised by the State Government in that behalf, 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, if he is satisfied that an offence has been committed against the Act and whether or not a prosecution is instituted for such offence.
In the case on hand, before the lower Court, prosecution has objected to the prayer, for releasing the vehicle, on the grounds that confiscation proceedings has already been initiated by issuing a show cause notice. If the Court below is empowered to order release of the vehicle, pending inquiry or trial, under Sections 451 and 457 of Cr.P.C., as the case may be, then, in the humble opinion of this Court, the power conferred on the competent authority, under Section 14(4) of the Tamil Nadu Prohibition Act, 1937, cannot be exercised and in such circumstances, provision under Section 14(4) of the Act, would become otiose, for the reason that notwithstanding the provisions, under Section 14(1) to (3) of the Act, the District Collector or the Competent Authority, under Section 14(4) of the TNP Act, is empowered to initiate proceedings for confiscation. Sub Sections 1 and 2 of Section 14 of the Tamil Nadu Prohibition Act, 1937, confers powers on the Court to order for confiscation. Section 14(4) of the Act, starts with an opening sentence, notwithstanding anything contained in sub-Sections 1 and 3 of Section 14 of the Act, which confers power on the Court to order for confiscation. It is to be noted that though power is conferred on the Court, to order confiscation, pending trial, the said power is not normally invoked by the Courts.
In the case on hand, confiscation proceedings have already been initiated by the competent authority, under Section 14(4) of the Act, by issuance of a show cause and in the light of the guidelines issued in David's case 2010 (1) L.W.(Crl.) 129, this Court is of the view that the impugned order of the Court below, in dismissing the petition, for return of the vehicle, alleged to have been involved in G.3.Cr.No.1368 of 2014, for the offences under the TNP Act, cannot be said to be manifestly illegal, warranting interference."
12. It is to be relevantly pointed out that the confiscation of vehicle involved in prohibition offence is not mandatory. Confiscation of a vehicle depends upon the facts and merits of each case, as per decision in Abdul Jabar V. State by Inspector of Police, Manapparai, reported in 1994 MLJ (Crl) 567. Also that a harmonious reading of Sec. 14(4) and Section 14(A) of TamilNadu Prohibition Act, 1937 pointed out that in terms of the scheme of the Act, the State Government is empowered to prosecute the owners of animals, vessels, cart or other vehicle and seize the same without prejudice to the order of confiscation, as per decision T.Karthik V. State by Inspector of Police, Tambaram reported in (1999) 1 LW (Crl) page 114. Further, the ordering of 'interim custody of vehicle' involved in prohibition offence should not be automatic. The discretion of court should be exercised judiciously with due care, as per decision David V. Sakthivel, reported in 2010 1 MLJ (Crl) page 929 (Mad).
13. As a matter of fact, after the amendment to Tamil Nadu Prohibition Act, 1937, the onus is shifted on the part of the owner of a vehicle to establish that he exercised due care in preventing the commission of the offence, as per decision The Commissioner of Police, Madras Vs R.Gothandapani, reported in 1997 LW (Crl) Pg. 93.
14. Furthermore, prior to the passing of an order of confiscation in respect of a vehicle, the competent/appropriate authority is to provide reasonable opportunity to the owner of the vehicle, as opined by this Court.
15. It is to be pointed out that in regard to the 'Disposal of Property' in terms of Section 451 of Cr.P.C, it is just and necessary that the property should be under the control of the Learned Magistrate. In fact, not only in respect of the property in regard to an offence appears to have been committed or which appears to have been used for the commission of the offence that the Court is enjoined under Section 451 of Cr.P.C to pass an order for custody and disposal of property, pending trial, but even in respect of a property produced before the Court, the Court is empowered to make such an order, as per the decision Om Rajnarain, Shivpuri Vs R.M.Patil, reported in, 1978 CrLJ page 1432. (Bom-DB).
16. It cannot be gain-said that orders passed in terms of 'sections 451 and 457 of Cr.P.C' are during the pendency of trial or enquiry. It cannot be over-emphasized that when the complaint is filed before the competent Court of Law, the vehicle seized by the Police becomes a part of the complaint and it is deemed that the vehicle is also in the Court. Furthermore, just because a property is liable to be confiscated, it ought not to be released, during the pendency of the trial, is not a reasonable/justifiable ground for refusing the interim custody of the vehicle seized, in the considered opinion of this Court. If at all a vehicle is meant for use, the user and the owner should not be deprived of such use, in the considered opinion of this Court. There is no second opinion of an important fact that if the seized vehicle is allowed to remain idle, then it is quite likely to rot and rust. However, if a particular vehicle was seized as a piece of evidence and further the same is liable to be confiscated and at the time of passing an order in regard to the question of interim custody, the paramount consideration that should weigh with the Court of Law is whether when the concerned petitioner/person is called upon, the vehicle would be produced for the purpose of evidence and in the event of confiscation order, the same would be available for confiscation?
17. Dealing with the aspect of the ingredients of Section 457 of Cr.P.C, it is to be relevantly pointed out that the term 'inquiry' or trial, does not connote the stage of investigation by the Police, as per decision Mohar Singh Vs State, reported in 1979 CrLJ 216, 218 (Himachal Pradesh). In reality, an order under Section 457 of Code of Criminal Procedure can be made during investigation and also that the Learned Magistrate need not wait until the trial or inquiry is concluded, as per the decision Ajai Singh Vs Nathi Lal, reported in 1978 CrL.J. 629 (Allahabad). It is to be remembered that even when the matter is in the stage of Police investigation, disposal can be ordered, as per the decision Mohar Singh Vs State, reported in 1979 CrLJ 216, (at special page 218 (Himachal Pradesh).
18. It is well-settled that a Court of Law has to exercise its judicial discretion, after taking into account the due consideration, interest of justice, including the future necessity of production of the seized vehicle/articles at the time of trial. However, if the release of property in question/issue will in any manner affect or prejudice the course of justice, at the time of trial, it will be a sound exercise of judicial discretion to reject the claim for return, as opined by this Court. Insofar as the proceedings under Section 457 of Cr.P.C, it is to be pointed out that the title to the property is not determined or adjudicated. Indisputably, the order to be passed in regard to the release/return of vehicle to the concerned person is summary in nature. Also that Section 457 Cr.P.C empowers a Court of Law to release the property seized by the Police from accused during investigation, but not yet produced before it, as per decision Amarjith Singh Vs State of Punjab reported in 1982 CrLJ at page 523 (Punjab and Haryana). Further, the powers of the Magistrate to order release of the vehicle in question comes into operative play when some investigation in respect of an offence is registered and the seizure is made of the property concerned.
19. At this stage, this Court carefully points out that under Section 457of Cr.P.C, a Court of Law has power to order release of property seized from any person in connection with an offence, even though the property was not produced and the trial of the main case has not commenced, as per decision of the Honourable Supreme Court in Ram Prakash Sharma Vs State of Haryana reported in AIR 1978 Supreme Court page 1282. Also that in the decision of Rajendra Prasad Vs State of Bihar reported in 2001 10 SCC page 88, the Honourable Supreme Court has held that subject to certain conditions the custody of the vehicle can be entrusted during the pendency of trial temporarily to its registered owner".
20. Besides the above, this Court significantly points out that Section 102 of Cr.P.C defines the power of Police Officer to seize the property especially where the allegation of commission of an offence is alleged. As a matter of fact, Section 102 of Cr.P.C speaks of any offences and is wide enough to cover offences either under the Indian Penal Code or under any special statute, in the considered opinion of this Court. Moreover, for an application of Section 102 of Cr.P.C, the basic requirements are that the properties said to be seized or frozen must be either stolen property or they should have been found to have some nexus with the alleged offence, which is under investigation of the concerned Police Officer, as per decision Rajamani Vs Inspector of Salem reported in 2003 CrLJ page 2902 at special page 2903.
21. In the instant case, the Revision Petitioner in Cr.M.P.No.6161 of 2015 on the file of the Learned Judicial Magistrate, Pattukkottai, had categorically averred that the TATA ACE vehicle bearing Regn.No. TN 31 AW 2399 was seized by the respondent/Police and that it belong to him, valued at Rs.1,00,000/- and also that since the said vehicle was kept in open space, the same would get spoiled, due to the rain and sunlight.
22. In the upshot of detailed qualitative and quantitative discussions and also this Court, taking note of the entire attentive facts and circumstances of the present case, is of the considered view that the reasons ascribed for dismissal of the miscellaneous petition by the trial Court in Cr.M.P.No.6161 of 2015 to the effect that the four wheeler vehicle TATA ACE bearing Regn.No. N 31 AW 2399 was not produced before the Court and also that the confiscation proceedings were to be initiated by the Additional Superintendent of Police and therefore, the vehicle could not be ordered to be returned are clearly unsustainable in the eye of Law. Viewed in that perspective, this Court, unhesitatingly, holds the trial Court has committed an error in dismissing the Cr.M.P.No.6161 of 2015. As such, this Court, to prevent an aberration of justice, interferes with the said impugned order of dismissal dated 21.11.2015, passed in Cr.M.P.No. 6161 of 2015, by the trial court and sets aside the same, to promote the substantial cause of justice. Resultantly, the Criminal Revision Petition filed by the petitioner succeeds.
23. In the result, this Criminal Revision Case is allowed. The order passed by the Learned Judicial Magistrate, Pattukkottai in Cr.M.P.No.6161 of 2015 dated 21.11.2015 is set aside by this Court, for the reasons ascribed in the Criminal Revision Case. Further, this Court, in the interest of justice, directs the Respondent/Police to produce the four wheeler vehicle TATA ACE bearing Regn.No. TN 31 AW 2399 before the Learned Judicial Magistrate, Pattukkottai within four days from the date of receipt of copy of this order. Thereafter, the vehicle may be handed over to the petitioner (arrayed not as an accused) on filing of miscellaneous petition by him before the trial Court inasmuch as the Learned Judicial Magistrate can pass orders under Section 451 Cr.P.C, only after a physical or symbolical production of the four wheeler vehicle in question, after hearing the parties concerned. However, the return/handing over of the four wheeler vehicle to the petitioner is subject to the fulfillment of following conditions, by the petitioner.
i) Soon after the production of the four wheeler bearing Regn.No.TN 31 AW 2399, before the trial court, the petitioner is directed to produce all the necessary documents relating to the ownership of the vehicle.
(ii) The petitioner shall execute a bond for a sum of Rs.25,000/- along with two sureties likesum to the satisfaction of the Learned Judicial Magistrate, Pattukkottai;
(iii) The petitioner shall surrender the R.C.Book and the learned Judicial Magistrate, Pattukkottai is at liberty to return the R.C.Book, in case of renewal, if any of the registration or for insuring the vehicle. In fact, the R.C.Book can be obtained from the trial Court by filing necessary petition and after the accomplishment of the purpose, the same should be returned to the Court; and
(iv) the petitioner shall also file an affidavit of undertaking to the effect that that he will cause production of the vehicle in question before the competent authority/Court as and when called for and further, he will not alienate the vehicle in question till the appropriate proceedings to be initiated or completed.
(v) The petitioner shall not alter the character and nature of the vehicle except by carrying out necessary repairs to make the vehicle road worthy.
vi)The petitioner should give an undertaking toproduce the vehicle as and when required by the requisiteauthority/Prohibition Officer duly authorised in that behalfby the Government."