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Judgment
R. Mala, J.—The petitioner in Crl.O.P.(MD)No.16675 of 2015 has come forward with the present petition seeking for a direction, directing the respondent to release the petitioner''s vehicle for interim custody, as per the order passed by the learned Judicial Magistrate, Manapparai, in Cr.M.P. No. 1066 of 2015, which was confirmed by the learned Sessions Judge, Tiruchirappalli, in Criminal Revision No. 8 of 2015 on 09.06.2015, stating that the petitioner''s vehicle was seized in connection with Crime No. 121 of 2015, since it was alleged to be involved in transporting illegal arrack. As soon as petitioner came to know of the same, he filed an application for interim custody. According to him, he received the confiscation notice only on 25.02.2015, i.e., after the filing of the application seeking interim custody. The Trial Court, after considering the arguments put forth by both sides, ordered interim custody of the vehicle, against which, the respondent has preferred a revision in Criminal Revision No. 8 of 2015, on the file of learned Sessions Judge, Tiruchirappalli, which was also dismissed, confirming the order passed by the Trial Court, against which, now the respondent police has preferred a petition in Crl.O.P.(MD)No.17844 of 2015.
The learned Special Government Pleader would submit that as per Section 14(4) of the Tamil Nadu Prohibition Act, 1937, once the confiscation proceedings has been initiated, the learned Judicial Magistrate Court has no jurisdiction to pass an order for interim custody of the vehicle. To substantiate his argument, he relied upon the judgments rendered in Crl.R.C.(MD)No.130 of 2012 [Suriya Kala v. The State], dated 29.03.2012; State of Karnataka Vs. K.A. Kunchindammed, ; Oma Ram Vs. State of Rajasthan and Others, ; and P. Pannerselvam Vs. State, , and prayed for dismissal of Crl.O.P.(MD)No.16675 of 2015 and allowing of Crl.O.P.(MD)No.17844 of 2015.
Resisting the same, the learned counsel for the petitioner in Crl.O.P.(MD)No.16675 of 2015 would submit that merely because confiscation proceedings has been initiated under Section 14(4) of the Tamil Nadu Prohibition Act, 1937, it will not take away the powers of the Judicial Magistrate Court to pass order in a petition filed under Section 457 Cr.P.C. There is a provision and on that basis only, the Trial Court has correctly held that before issuance of confiscation notice, the petitioner has filed an application for interim custody of the vehicle and the same was rightly dealt with and interim custody of the vehicle has been ordered, which was also confirmed by the revisional Court and the orders passed by both the Courts below do not suffer from any error or illegality. He would also submit that the decisions relied on by the learned Special Government Pleader are not applicable to the facts of the present case and hence, he prayed for dismissal of Crl.O.P.(MD) No. 17844 of 2015 and sought for interim custody.
I have considered the rival submissions made on either side and perused the typed-set of papers.
Admittedly, the petitioner in Crl.O.P.(MD)No.16675 of 2015 is the owner of the vehicle and according to him, the vehicle has been used by his relatives and at that time, they transported illegal arrack and a case has been registered against the accused persons and the vehicle has been seized by the police, but it was not produced before the Court concerned. As soon as he came to know of the same, he filed an application under Section 457 Cr.P.C., seeking interim custody and after that only, confiscation notice has been issued.
The only question that arises for consideration is as to whether the issuance of confiscation notice will debar the Judicial Magistrate to pass an order granting interim custody.
At this juncture, it is useful to extract Section 457 Cr.P.C., which reads thus:
"457. Procedure by police upon seizure of property.--(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
It is also useful to extract Section 14 of the Tamil Nadu Prohibition Act, 1937, which reads thus:
"14. Confiscation how ordered.--(1) When the offender is convicted or when the person charge with an offence against this Act is acquitted, but the court decides that anything is liable to confiscation, such confiscation shall be ordered by the court.
(2) Where, during the trial of a case for an offence against this Act, the court decides that anything is liable to confiscation, the court shall order the confiscation.
Provided that no animal, vessel, cart or other vehicle shall be confiscated under Sub-section (1), or sub-section (2), if the court after hearing the owner of such animal, vessel, cart or other vehicle and any person claiming any right thereto, is satisfied that the owner and such person had exercised due care in the prevention of the omission of such an offence.
(3) When an offence against this Act has been committed but the offender is not known, or cannot be found, or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Collector or other Prohibition Officer-in-charge of the district or by any other officer authorized by the State Government in that behalf who shall order such confiscation:
Provided that no such order shall be made until the expiration of fifteen days from the date of seizing the things intended to be confiscation or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims.
(4) Notwithstanding anything contained in sub-sections (1) to (3), the Collector or other Prohibition Officer in-charge of the district or any other officer authorised 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:
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-
(i) a notice in writing informing him of the grounds on which it is proposed to confiscate the animal, vessel, cart or other vehicle;
(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
(iii) a reasonable opportunity of being heard in the matter:
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.
(5) Any person aggrieved by an order of confiscation under sub-section (4) may, within one month from the date of the receipt of such order, appeal to the court of session having jurisdiction."
A cursory reading of Section 457 Cr.P.C., would reveal that initiation of confiscation proceedings will not debar the Magistrate Court from passing an order in a matter relating to interim custody.
Before considering the merits of the case, now this Court has to consider as to whether the decisions relied upon by the learned Special Government Pleader are applicable to the facts of the present case.
The first decision relied upon by him in Crl.R.C. (MD)No.130 of 2012 [Suriya Kala v. The State], dated 29.03.2012, is not applicable to the case on hand, since the facts in both the cases are different.
Coming to the decision relied upon the learned Special Government Pleader in State of Karnataka Vs. K.A. Kunchindammed, , the same is also not applicable to the facts of the present case, because in the said case, sandalwood has been seized and it was held that till the disposal of the confiscation proceedings, it shall not be given as interim custody. But, here, in this case, the object is only the Bolero Car and if the car has been kept in open place, exposed to air and light, the same would deteriorate the value of the property. For that reason only, the Apex Court has issued certain guidelines in Sunderbhai Ambalal Desai Vs. State of Gujarat--> as to what are the procedures to be followed, while granting interim custody of the material object produced before the Court. It is true that in the present case, the vehicle has not been produced before the Criminal Court and it is with the respondent police. Hence, the above citation is not applicable.
Coming to the decision in Oma Ram Vs. State of Rajasthan and Others, , it is related to Excise Act and two amendments have been brought in the Excise Act and as such, the above citation is not applicable.
In respect of the decision in P. Pannerselvam Vs. State, , the same is also not applicable to the case on hand, since it is related to Essential Commodities Act, 1955. Thus, in my considered view, all the decisions relied upon by the learned Special Government Pleader are not applicable to the facts of the present case.
Now this Court has to consider the merits of the case. The learned Trial Judge, in the operative portion of the order dated 26.02.2015 in Cr.M.P. No. 1066 of 2015, has held that after filing of the petition under Section 457 Cr.P.C., only, the confiscation proceedings has been initiated and on that basis only, the order has been passed and the same was confirmed by the revisional Court.
Furthermore, as already stated above, there is no evidence to show that as soon as the proceedings under Section 14(4) of the Tamil Nadu Prohibition Act, 1937, has been initiated, the Criminal Court has functus officio for deciding the return of vehicle. In such circumstances, I am of the view that the vehicle has been seized and has not been produced before the Criminal Court and therefore, the provision under Section 457 Cr.P.C., has rightly been invoked and merely because the confiscation proceedings has been initiated, the jurisdiction of the Criminal Court shall not be curtailed for passing appropriate orders in a matter like this. But, here, as already stated, both the Courts below have rightly ordered interim custody of the vehicle. It is also to be noted that confiscation notice has been issued on 25.02.2015, but, so far, no final order has been passed, even though there was no stay either by this Court or by any other Court, which shows their intention to drag on the proceedings. Therefore, I do not find any merit in Crl.O.P.(MD)No.17844 of 2015 and the same is, hereby, dismissed. Consequently, the connected miscellaneous petition is also dismissed.
For the reasons stated supra, the petition in Crl.O.P. (MD)No.16675 of 2015 is allowed and the respondent police is directed to hand over the vehicle to the petitioner, after complying with the condition imposed by the Trial Court.
Considering the fact that confiscation proceedings has been initiated on 25.02.2015 and it is pending for more than 8 months, the respondent police is directed to complete the confiscation proceedings, within a period of two months from the date of receipt of a copy of this order.