Saravanan vs State by The Sub Inspector of Police

K.N. Basha, J.—The Petitioner has come forward with this revision challenging the order passed by the learned Judicial Magistrate No. I,

Kancheepuram, dated 30.08.2010 made in Crl. M.P. No. 1758 of 2010 dismissing the petition filed by the Petitioner seeking the relief of interim

custody of the vehicle, namely, Toyota Qualis bearing registration No. TN 07 U 6310.

Mr. T. Munirathnam Naidu, learned Counsel for the Petitioner, would submit that the Petitioner is the owner-cum-driver of the vehicle namely,

Toyota Qualis bearing registration No. TN 07 U 6310 and he has been arrayed as A1 in this case for the offences under Sections 4(1)(aaa), 4(1-

A) TNP Act read with Sections 6 and 11 of R.S. Rules, 2000. It is contended that the vehicle of the Petitioner was seized by the Respondent

police on 26.07.2010 on the allegation that the said vehicle was used for commission of the above said offences, viz., transporting liquor. The

learned Counsel for the Petitioner would submit that the Petitioner has been falsely implicated in this case and he has nothing to do with the alleged

offences and he is totally unaware about the purpose for which the vehicle has been taken for hiring. It is contended that the vehicle is exposed to

sun and rain and therefore, the condition of the vehicle is deteriorating day-by-day, as a result, the Petitioner would be put into great hardship and

irreparable loss as the vehicle is the sole source of income for his family. The learned Counsel would submit that the learned Magistrate has not

assigned any valid reason for rejecting the petition filed by the Petitioner for return of the vehicle except stating in the impugned order that the

confiscation proceedings have been initiated.

Mr. J.C. Durairaj, learned Government Advocate (Crl. Side), would submit that the Petitioner has been implicated as one of the accused and

arrayed as A1. It is contended that the Petitioner has driven the vehicle on the date of occurrence and as such, he is not entitled to seek the relief of

return of vehicle. It is further submitted that the confiscation proceedings have already been initiated and the vehicle has been handed over to the

Prohibition Officer and as such, the relief cannot be granted.

This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the

impugned order.

It is seen that the Petitioner is said to be the owner-cum-driver of the vehicle, namely, Toyota Qualis bearing registration No. TN 07 U 6310

and he has been implicated in a criminal case for the alleged offences, as stated above, as he has been arrayed as A1 in that case. This Court is of

the considered view that no prejudice would be caused to the prosecution in the event of granting the relief of interim custody of the vehicle of the

Petitioner as the same is exposed to sun and rain right from the date of seizure, i.e., from 26.07.2010 and further there is also reasonable

apprehension of missing important parts of the vehicle and as a result, it is no doubt that the condition of the vehicle would be deteriorated day-by-

day and in such event, the Petitioner would be put in to great hardship and irreparable loss as the vehicle is the only source of income for the

family. It is also seen that in the impugned order the learned Magistrate has stated that confiscation proceedings have already been initiated and the

vehicle has been handed over to the Prohibition Officer. This Court is of the considered view that confiscation proceedings is not a bar in granting

the relief of interim custody of the vehicle.

At this stage, it is relevant to refer to the decision of the Hon''ble Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat With reported in

2003 SCC 1943. The Hon''ble Apex Court in the said decision has held as hereunder:

The powers u/s 451 Code of Criminal Procedure should be exercised expeditiously and judiciously. It would serve various purposes, namely:

1 owner of the article would not suffer because of its remaining unused or by its misappropriation;

2 court or the police would not be required to keep the article in safe custody;

3 if the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the

court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4 this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the

articles.

B. K. Patil v. State of Mysore, 1977 CriLJ 1141 relied on

...

Vehicles

It is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately

by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done

pending hearing of applications for return of such vehicles.

In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered

to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take

possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may

be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said

vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken

and detailed panchnama should be prepared.

.....

However these powers are to be exercised by the Magistrate concerned. The Magistrate concerned would take immediate action for seeing that

powers u/s 451 Code of Criminal Procedure are properly and promptly exercised and articles are not kept for a long time at the police station, in

any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High

Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly.

The Hon''ble Apex Court in the subsequent decision in respect of the very same case, namely, in Sunderbhai Ambalal Desai case reported in

2003 SCC 1440 further clarified as hereunder:

Further, with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the court and the

seizure report may be sufficient.

The Hon''ble Apex Court in the decision cited supra has laid down the above said guidelines in respect of return of properties, namely, valuable

articles, currency notes and vehicles. It is emphasised by the Hon''ble Apex Court that the powers u/s 451 Code of Criminal Procedure should be

exercised expeditiously and judiciously.

In view of the above said reasons coupled with the principles and guidelines stipulated by the Hon''ble Apex Court in the decisions cited supra,

this Court is constrained to set aside the impugned order passed by the learned Judicial Magistrate No. II, Kancheepuram, dated 30.08.2010

made in Crl.M.P. No. 1758 of 2010 and consequently, the learned Judicial Magistrate is directed to return the vehicle to the interim custody of the

Petitioner on the following conditions:

a) the Petitioner shall establish his ownership of the vehicle by producing the necessary original R.C. Book and other relevant records;

b) the Petitioner shall not alienate the vehicle in any manner till adjudication is over;

c) the Petitioner shall execute a bond for a sum of Rs. 3,00,000/- (Rupees three lakhs only), to the satisfaction of the Judicial Magistrate No. II,

Kancheepuram; and

d) the Petitioner shall produce the vehicle as and when required by the trial court.

This Criminal Revision Petition is ordered accordingly.

This matter is posted today under the caption ""for being mentioned"" in view of the report dated 09.02.2011 received from the learned Judicial

Magistrate No.II, Kancheepuram.

The petitioner has been implicated in a case for the offences under Sections 4(1)(aaa), 4(1-A) of the Tamil Nadu Prohibition Act r/w Sections

6 and 11 of R.S. Rules, 2000 and his vehicle Toyota Qualis bearing Registration No.TN07 U 6310 has been seized by the respondent police.

Thereafter, the petitioner/accused preferred a petition in Crl.M.P.No.1758 of 2010 before the learned Magistrate under Sections 451 and 457 of

the Code of Criminal Procedure seeking for the relief of interim custody of the vehicle claiming that he is the owner of the said vehicle. The learned

Magistrate observed in the order that the petitioner has been implicated on the allegation of transporting liquor. The learned Magistrate dismissed

the said petition on the ground that the confiscation proceedings have already been initiated and a notice was also served on the petitioner and as

such, declined to grant the relief of interim custody of the vehicle as per the order dated 30.08.2010. Challenging the said order, the petitioner has

preferred the present revision in Crl.R.C.No.38 of 2011.

This Court considering the submission of the learned counsel for the petitioner and the submissions of the learned Government Advocate (Crl.

Side) passed the order dated 06.01.2011 ordering the interim custody of the vehicle to the petitioner holding that the pendency of confiscation

proceedings is not a bar for granting the relief of interim custody of the vehicle by imposing conditions to establish the ownership of the vehicle by

producing necessary original R.C.Book and other relevant records, the petitioner shall execute a bond for a sum of Rs.3,00,000/- to the

satisfaction of the learned Judicial Magistrate No.II, Kancheepuram apart from other usual conditions of restraining the petitioner not to alienate the

vehicle in any manner and to produce the vehicle as and when required by the trial court.

After passing the said order, this Court received a report from the learned Judicial Magistrate No.II, Kancheepuram, dated 09.02.2011. A

perusal of the report of the learned Magistrate reveals that the revision petitioner, prior to the filing of the present revision in Crl.R.C.No.38 of

2011, had filed two revisions before this Court in Crl.R.C.No.946 of 2010 and in Crl.R.C.No.1065 of 2010 challenging the very same impugned

order in this matter. The first revision was dismissed by this Court for non-prosecution on 24.09.2010. Again the revision petitioner has preferred

the second revision, against the very same order of the learned Magistrate dismissing the petition seeking for the relief of interim custody of the

vehicle, in Crl.R.C.No.1065 of 2010 and the said revision was also dismissed by this Court on merits by the order dated 03.11.2010.

Suppressing the dismissal of the above two revisions filed by the revision petitioner against the very same impugned order of the learned Judicial

Magistrate, as stated above, the revision petitioner had preferred the present revision and the same was allowed by this Court by the order dated

06.01.2011.

The learned counsel for the petitioner brought to the notice of this Court that he was not informed about the dismissal of the earlier revisions

filed by the petitioner. A perusal of the report submitted by the learned Magistrate makes it crystal clear that the petitioner has deliberately played

fraud on the Court and obtained the order dated 06.01.2011 granting the relief of interim custody of the vehicle.

At this juncture, it is relevant to refer to the decision of the Hon''ble Apex Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath

(dead) by L.Rs. and others, , wherein the Hon''ble Apex Court has held as hereunder :

The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are

constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other

unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to

say that a person, who''s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the

litigation.

In yet another decision in A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, , the Hon''ble Apex Court has held as

hereunder :

.... Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be

held legal, valid or in consonance with law. It is nonexistent and non est and cannot be allowed to stand. This is the fundamental principle of law

and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity,

whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior.

The principles laid down by the Hon''ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in

this case also, as it was pointed out earlier, the revision petitioner has deliberately suppressed the fact of dismissal of two revisions, one on the

ground of non-prosecution and another on the ground of merits, and thus it is a calculated fraud played on the Court.

In view of the same, this Court has no hesitation to hold that the petitioner by practising or playing fraud obtained the above said order dated

06.01.2011 in Crl.R.C.No.38 of 2011 and as such, the same is vitiated and such order cannot be held legal, valid or in consonance with law.

In view of the aforesaid reasons, in order to prevent the abuse of process of court as well as to secure the ends of justice, this Court is left with

no other alternative except to invoke the inherent power u/s 482 of the Code of Criminal Procedure to recall the order passed by this Court dated

06.01.2011 in Crl.R.C.No.38 of 2011.

Accordingly, the said order dated 06.01.2011 made in Crl.R.C.No.38 of 2011 is herby recalled.

In view of the deliberate conduct of the revision petitioner/accused in playing fraud on the Court, this Court is also constrained to impose a

cost of Rs.20,000/- (Rupees twenty thousand only). The revision petitioner shall pay the said amount within a period of two weeks from the date

of receipt of a copy of this order by way of Demand Draft in favour of M/s. NETHRODAYA, No.47/1, Nolambur Phase � II, Mogappair

West, Chennai � 600 037, an organization established to protect the interest of differentlyabled persons. If the petitioner fails to pay the cost in

time as directed by this Court, the learned Judicial Magistrate shall initiate steps to recover the same in accordance with law and pay it to M/s.

NETHRODAYA.

Before parting with this matter, this Court place it on record the commendable and prompt action taken by the learned Judicial Magistrate

No.II, Kancheepuram, by sending the report dated 09.02.2011, as stated above, and the learned Magistrate deserves all appreciation.