Muthu Pandian vs State

Arumugham, J.—The owner of the vehicle, Standard Van, bearing registration No. T.D.T.7569 has preferred the above revision, against the

judgment of the learned First Additional Sessions Judge, Tirunelveli, made in C.A. No. 79 of 1989 dated 7.9.1989 rejecting the appeal and

confirming the order passed by the Judicial Magistrate No. IV, Tirunelveli, in C.C. No. 1226 of 1986.

The short facts which lead to the filing of the present revision, as culled out from the records of both the courts are as follows: In the main road

that leads to Shanumughapuram, situate near Vembar at about 5:00 P.M. on 11.3.1986, when the Prohibition and Enforcement Wing of the Tamil

Nadu Police intercepted a Van driven by one of the accused by name Sankar, it was found that without any valid permit or licence they were

transporting toddy which was in 13 plastic cans and therefore, the said contraband along with the Van was recovered under the cover of mahazar

and the accused were arrested and after they have duly investigated, a final report was filed before the learned trial Magistrate and upon the full

trial, the accused were found guilty and accordingly they were convicted and sentenced to undergo rigorous imprisonment for 6 months and a fine

of Rs. 2,000/- each.

While delivering the judgment, the learned trial Magistrate has ordered the Van bearing registration No. T.D.T.7569 used for transporting the

toddy to be confiscated for the State. Aggrieved by this, the owner of the vehicle one Muthu Pandian has preferred the appeal, C.A. No. 79 of

1989, and after hearing the appeal, on reassessing the entire evidence the lower appellate court dismissed the same and confirmed the order

passed by the learned Magistrate. Aggrieved at this, the owner has canvassed the correctness of the above finding before this Court.

Mr. T. Sudanthiram, learned Counsel appearing for the revision Petitioner attacked the very basis upon which both the courts below ordered

the confiscation of the Van bearing registration No. T.D.T.7569 to the State without following the legal norms provided u/s 452 of Code of

Criminal Procedure read with Section 14(2) of the Tamil Nadu Prohibition Act, as amended. Perhaps, this is the one and only ground on which the

learned Counsel has canvassed this revision assailing the impugned judgment passed by the courts below.

I have heard Mr. Shanmughavclayutham, learned Additional Public Prosecutor in this regard. At the outset I may observe that there is every

force in the contention raised by Mr. Sudanthiram, learned Counsel for the revision Petitioner. To appreciate his contention, it has become

necessary for me to refer to Section 14(1) and (2) with the proviso of the Tamil Nadu Prohibition Act.

When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the court decides that anything 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.

A plain reading of the above sections of law makes it so clear that the power vested with the court while trying the offence and felling the accused

guilty or acquitted is empowered to decide that any animal, vessel, cart or other vehicle is to be disposed of by means of confiscation and that

while passing such order or deciding such manner, the courts shall hear the owner of such animal, vessel, cart or other vehicle, and satisfy further

itself that such person or the owner had exercised due care in the prevention of the omission of such an offence. It is, thus, this section clearly

envisaged that by providing a clear opportunity to the owner of such vessel, animal, cart or other vehicle involved in the commission of any offence

to explain the fact as to how and in what manner he has taken care to prevent his vessel, animal, cart or other vehicle being used for any illegal

purpose and the precautions taken by the owner of the property, before confiscation was ordered. This was the reason and the object with which

the proviso has been added to Section 14, Clauses (1) and (2) by the Act itself. If this is the position, then it makes it clear that both the learned

trial Magistrate as well as the learned Sessions Judge have clearly and conveniently over-looked the above said legal mandate to the total prejudice

of the owner, namely, the revision Petitioner herein and as such, the impugned judgment is vitiated by illegality and impropriety. That apart, Section

452 of Code of Criminal Procedure provides the various norms and the mode and the manner in which the court of a trial should follow in

disposing the property involving in commission of an offence has not been followed by both the courts below. Inspite of this Court having

repeatedly held and insisted the said principles to be followed by courts of law in this country, it is strange that this mandatory legal procedure has

been totally and completely over-looked by both the courts below which clearly amounts to a total erroneous approach. Therefore, the impugned

orders passed by both the courts of law regarding confiscation are liable to be set aside.

However, in the light of the conviction and sentence passed against the driver and cleaner of the Van in question, the same have not been

challenged in the appeal. In the light of the fact that the Van in question was found in use of transporting the contraband, the owner, namely, the

revision Petitioner is to be provided with an opportunity to place his explanation before the court of law as contemplated by Section 14 of the

Tamil Nadu Prohibition Act. Therefore, to provide such an opportunity, I feel, while setting aside the impugned order, the matter has to be remitted

back to the trial Magistrate to conduct an enquiry regarding the vehicle involved in this case as provided u/s 14(1) and (2) of the Tamil Nadu

Prohibition Act and Section 452 of the Code of Criminal Procedure by giving an opportunity to the revision Petitioner herein and others concerned

and record any evidence necessary by both sides and dispose of the same in accordance with law, afresh.

Thus, the revision is allowed partly, and the order passed by the learned Sessions Judge, Tirunelveh in C.A. No. 79 of 1989 dated 7.9.1989

and the judgment of the trial court regarding confiscation are hereby set aside and the matter is remitted back to the learned Judicial Magistrate

No. IV, Tirunelveli, to conduct a fresh enquiry regarding the vehicle involved as indicated above and in accordance with the procedure and law as

pointed out above, within a period of two months from the date of receipt of this order.