Silambarasan v. The State Rep By Its The Inspector Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.04.2023

CORAM

THE HONOURABLE MR. JUSTICE V.SIVAGNANAM Crl.RC.No.587 of 2023 Silambarasan ... Petitioner Vs.

The State Rep by the Inspector of Police, Karuveppilankurichi Police Station, Cuddalore District Crime No.602 of 2022 ... Respondent PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of Criminal Procedure Code, 1973 to set aside the Order dated 14.03.2023 made in Crl.M.P.No.540 of 2023 on the file of the learned Judicial Magistrate No.II, Virudhachalam and subsequently grant custody of vehicle Ashok Leyland tipper lorry bearing registration No.TN 31 AS 7466 to the petitioner.

For Petitioner : M/s.Raji For Respondent : Mr.R.Vinothraja Government Advocate (Crl.Side)

O R D E R

This Criminal Revision Petition has been filed to set aside the order passed by the learned learned Judicial Magistrate No.II, Virudhachalam dated 14.03.2023 made in Crl.M.P.No.540 of 2023 and to return the vehicle Ashok Leyland tipper lorry bearing registration No.TN 31 AS 7466 to the petitioner /owner of vehicle.

2. It is the case of the prosecution that on 12.10.2022, when the Assistant Geologist and his team members went to patrol, they found that the driver of the the Ashok Leyland tipper lorry bearing registration No.TN 31 AS 7466 was found illegally transporting 3 units of pebbles without any valid invoice and permit and hence a case in Crime No.602 of 2022 was registered for the offences under Sections 379, 430 of IPC read with 21[1] of Mines and Minerals [Development and Regulation] Act and the vehicle was seized.

3. The petitioner is the owner of the above said lorry and he filed a petition in Crl.M.P.No.540 of 2023 before the Trial Court to release the vehicle to him. But it was dismissed, vide order dated 14.03.2023 on the ground that with regard to return of vehicles involved in mines and minerals theft, the power is vested only with the Special Court. Hence, challenging the above said order, the petitioner filed the present Revision case.

4. The learned counsel for the petitioner submitted that the petitioner is the owner of Ashok Leyland tipper lorry bearing registration No.TN 31 AS 7466. He further submitted that the lorry was purchased under hypothecation and he has to pay the EMI and if the vehicle is kept for a long time in the open space, it would cause damage to the vehicle. He further submitted that the vehicle is not involved in any case similar in nature and the petitioner is ready to give appropriate guarantee as well as security for return of vehicle and also he will produce the vehicle, as and when required either before the respondent police or before the Trial Court. Hence, he prayed to return the vehicle to the petitioner.

5. The learned Government Advocate [Criminal Side] appearing for the respondent submitted that the petitioner is owner of the Ashok Leyland tipper lorry bearing registration No.TN 31 AS 7466 and since the above said vehicle was used to transport the pebbles illegally, it was seized and hence, he objected to return the vehicle to him. He further submitted that the vehicle is not involved in any previous case of similar nature.

6. Heard the learned counsel appearing for the petitioner and the learned Government Advocate [Criminal Side] appearing for the respondent and I have perused the materials on record.

7. A perusal of the records shows that, the respondent police registered a case in Crime No.602 of 2022 for the offences under Sections 379, 430 of IPC read with 21[1] of Mines and Minerals [Development and Regulation] Act, with regard to transportation of pebbles illegally. Further, it reveals from the records that the petitioner is the owner of the Ashok Leyland tipper lorry bearing registration No.TN 31 AS 7466 and it was

seized by the respondent police. The Trial Court dismissed the petition in Crl.M.P.No.540 of 2023, filed by the petitioner, on the ground that the petition is relating to return of vehicle involved in Mines and Minerals theft, is not maintainable before the Magistrate. It is the contention of the learned counsel for the petitioner that the vehicle was purchased under hypothecation and he has to pay the EMI and the petitioner is ready to give guarantee and security for returning the vehicle and if the vehicle is being kept idle in open space, it would cause damage to the vehicle.

8. At this juncture, it is relevant to rely upon a decision of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai and others Vs. State of Gujarat in Special Lave Petition (Crl.)2745 of 2022 dated 01.10.2002 wherein the Hon'ble Supreme Court has held that in order to protect the property, the Apex Court has directed to handover the seized articles to the owner on proper Panchnama.

9. Considering the above aspects and also as per the ratio laid down by the Hon'ble Apex Court, this Court is of the view that, keeping the vehicle idle in the open space, will diminish its nature and lose its value and no purpose will be served. As such, considering the nature of offence, this Court is inclined to allow the Revision Petition.

10. Accordingly, this Criminal Original Petition is allowed and the impugned order passed by the Trial Court is set aside. The respondent police is directed to return the vehicle to the owner of the vehicle on the following conditions.

i. the petitioner shall prove his ownership of the vehicle by producing the R.C.Book and other relevant records; ii. the petitioner shall execute a personal bond for a sum of Rs.10,00,000/- (Rupees ten lakhs only) before the learned Judicial Magistrate No.II, Virudhachalam and the learned Magistrate shall not insist on production of solvency certificate.

iii. the Court may prepare a panchnama in Judicial Form No.82 with regard to the vehicle and such panchanama can be used in evidence.

iv. the petitioner shall take photograph of the vehicle and certified under Section 65B of the Central At 1 of 1972 and such photographs may be used as secondary evidence. v. the petitioner shall not alienate or encumber the vehicle in any manner;

vi. the petitioner shall give an undertaking that he will not use the vehicle for any illegal activities in future, vii. the petitioner shall also produce the vehicle as and when required before the court below and before the respondent police. 21.04.2023 Index: Yes/No Internet: Yes/No vrc

To

1. The Judicial Magistrate No.II, Virudhachalam

2. The Inspector of Police, Karuveppilankurichi Police Station, Cuddalore District

3. The Public Prosecutor, Madras High Court.

V.SIVAGNANAM, J., vrc Crl.RC No.587 of 2023 21.04.2023