Full Judgment
Prayer
Criminal Revision case filed under Section 397 r/w Section 401 Cr.P.C. praying this Court to call for the records relating to the order dated 19.03.2012, made in Cr.M.P.No.1540 of 2012, on the file of Judicial Magistrate No.I, Thanjavur and to set aside the same.
ORDER
1. Mrs.S.Prabha, learned Government Advocate(Crl.Side), who has taken notice on behalf of the respondent-police has come forward to argue the revision which shall lead to the passing of a final order on merit disposing of the revision in the state of admission itself.
2. The arguments advanced by Mr.R.Gandhi, learned counsel for the revision petitioner and by the learned Government Advocate(Crl.Side) referred to above are heard. The grounds of revision, copy of the impugned order and the documents produced in the form of typed-set of papers are perused. The learned Government Advocate(Crl.side) has also produced a copy of the report of the Investigating Officer dated 20.01.2012 sent to the Deputy Superintendent of Police(PEW), Thanjavur at Pattukottai, and a copy of the provisional Confiscation Order, dated:Nil.03.2012 with the title showing the same to be the proceedings of the Additional Superintendent of Police((PEW), Thanjvur. The same is found with the signature with a date 22.03.2012 designating the signatory to be the Superintendent of Police, Thanjavur District. The same are also taken into consideration.
3. A Maruthi Omni Van bearing Registration No. TN 49 AC 8350 was seized by the respondent/Police in a case registered as Cr.No.27 of 2012, on the file of the Prohibition and Enforcement Wing, Thanjavur for alleged offences punishable under Section 4(1)(aaa) r/w 4(1)(A) of the Tamil Nadu Prohibition Act with the averment that 431 bottles of Pondhicherry made brandy and a plastic cane containing 35 litres of arrack were transported in the said vehicle and the same was intercepted by the Police on the date of occurrence, namely 15.01.2012. As the seizure of the vehicle in the said criminal case was reported to the jurisdictional Magistrate, viz., the learned Judicial Magistrate No.I, Thanjavur, without production of the vehicle, the petitioner who claims to be the owner of the vehicle preferred a petition under Section 457 of the Code of Criminal Procedure to give her the interim custody of the vehicle. The learned Judicial Magistrate No.I, Thanjavur after giving notice to the respondent-Police and after hearing the objections raised, dismissed the said petition which had been numbered as Crl.M.P.No.1540 of 2012 in Cr.No.27 of 2012, on the file of the learned Judicial Magistrate No.I, Thanjavur holding that it was not feasible to grant interim custody of the vehicle to the petitioner as confiscation proceeding was in progress. The said order is challenged in the present Criminal Revision Case.
4. The learned counsel for the petitioner submits that the learned Judicial Magistrate No.I, Thanjavur failed to properly consider the scope of the powers conferred under Section 451 and 457 of Cr.P.C., and that on an erroneous impression that no interim custody of the vehicle could 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 14 of the Tamil Nadu Prohibition Act, 1987 is under contemplation and that hence the order is liable to be set aside and the relief sought for by the revision petitioner should be granted.
5. In support of his contention, the learned counsel for the revision petitioner drew the attention of this Court to an order passed by a learned Single Judge of this Court in Crl.R.C.No.501 of 2011 between Sakthivel .vs. The State, represented by the Inspector of Police, Thittachery Police Station, Nagapattinam District. The said order came to be passed on 07.04.2011 in which the learned Single Judge, after referring to the scope of the provisions of Section 451 and 457 Cr.P.C., and a number of judgments of this Court including the one by a Division Bench of the Honourable Apex Court in Sunderlal Ambalal's Case, has 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 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 Section 451 of 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 the order passed under the said provision 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 also be imposed to the effect that the person seeking interim custody should give an undertaking to handover the vehicle to the Collector or the Prohibition Officer passing confiscation order if required to do so.
6. Relying on the said decisions, the learned counsel for the petitioner submits that in this case, though a report is said to have been sent to the competent authority, proceedings for confiscation are yet to be commenced and the vehicle has been exposed to sun and rain for over a period of two months and that under the said circumstances, the discretion of the Court should have been exercised in favour of the petitioner.
7. Per contra, the learned Government Advocate(Crl.Side), referring to the documents produced today for the perusal of the Court, namely a copy of the report of the Investigating Officer and a copy of the proceedings of the Office of the Additional Superintendent of Police(PEW), Thanjavur(noted as signed by the Superintendent of Police, Thanjavur District), would submit that since the preliminary order under Section 14(4) has already been passed on 22.03.2012 itself, the petitioner is not entitled to seek interim custody of the vehicle.
8. This Court is not in a position to countenance the above said contention made by the learned Government Advocate(Crl.Side). At the best, the documents produced today by the learned Government Advocate(Crl.Side) would show that the proceedings for confiscation of the vehicle has begun and the same is yet to be completed. There is no bar for granting interim custody of the vehicle which is sought to be confiscated, pending conclusion of the confiscation proceedings. But while exercising the discretion in favour of a person claiming to be the owner or otherwise 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 waste of the property by allowing it to be lie idle by entrusting the interim custody of the vehicle to the petitioner, care should also be taken to incorporate a condition requiring an undertaking by the petitioner to produce the vehicle into 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. For all the reasons stated above, this Court comes to the conclusion that the order of the learned Judicial Magistrate is liable to be set aside.
9. Accordingly, the order dated 19.03.2012, made in Cr.M.P.No.1540 of 2012, on the file of Judicial Magistrate No.I, Thanjavur is set aside and the said petition shall stand allowed. The interim custody of the vehicle(Maruthi Omni Van) bearing Registration NO. TN 49 AC 8350 which was seized by the respondent/Police in Cr.No.27 of 2012, on the file of the Prohibition and Enforcement Wing, Thanjavur is directed to be given to the petitioner on the following conditions:
i) The Petitioner shall produce proof of ownership of the vehicle;
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, Thanjavur;
iii) The petitioner shall surrender the R.C.Book and the learned Judicial Magistrate No.1, Thanjavur 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
iv) the petitioner shall also file an affidavit of undertaking to the effect that:
a) he will not alienate the vehicle without obtaining an order from the learned Judicial Magistrate No.I, Thanjavur District; b) he will produce the said vehicle before the Court as and when summoned to produce the same; and
c) no major alteration excepting the necessary repairs to make the vehicle road worthy shall be made.
(v)The petitioner shall also give an undertaking to produce the vehicle as and when required by the District Collector/Prohibition Officer in- charge of the District or officer authorised in that behalf by the Government.
8. Consequently connected Miscellaneous Petition is closed.