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1997 DIGILAW 806 (MAD)

S. Murugesan v. Sub-Inspector of Police

1997-08-08

S.M.SIDICKK

body1997
Judgment :- This is a petition filed by the petitioner under S. 482 of Cr.P.C. to set aside the order of the Judicial Magistrate No. 1, Pudukottai dated 7-6-1966 in Crl.M.P. No. 103/96 and to direct the Magistrate to release the motor-cycle Silver plus bearing Registration No. TAO 1309, which was seized in Crime No. 205/96 on the file of Kantharvatkottai Police Station. 2. It is the case of the petitioner that according to the prosecution on 2-5-1996 at about 21.00 hrs. while the petitioner was coming along with his friend in his two wheeler Silver Plus, the petitioner was found in possession of 100 litres of I.D. arrack, and thereupon the vehicle was seized and produced before Judicial Magistrate No. 1, Pudukottai, and after the investigation was over a final report under S. 173 (2), Cr.P.C. was filed by the Sub-Inspector of Police, Kanthatvakottai Police Station, and the learned Magistrate after perusing the final report, discharged the petitioner and another accused under S. 258, Cr.P.C. and though the petitioner was discharged from eh alleged offence under S. 4 (1) (a) of Tamil Nadu Prohibition Act, the vehicle, which was said to have been used for the transport of 100 litres of I.D. arrack, was not returned to the petitioner, and so the petitioner filed the petition before the learned Magistrate in Crl.M.P. No. 103/96 and after hearing the petitioner's counsel the same was dismissed on 7-6-1996 and so the present petition under S. 482 of Cr.P.C. was filed by him before this Court on 29/6/1997. 3. On hearing both sides, the point that arises for consideration in this petition is as to whether the petitioner is entitled to the relief prayed for under S. 482, Cr.P.C. 4. Point : - The learned counsel for the petitioner contented that on the basis of the final report filed by the Respondent police under S. 173(2), Cr.P.C, the petitioner was discharged under S. 258 Cr.P.C. and the application filed by him on 7-1-1996 for the return of vehicle was dismissed, and since the petitioner was discharged under S. 258, Cr.P.C, the learned Magistrate erred in confiscating the property viz., the two wheeler Silver Plus, and the learned Magistrate ought not to have refused to return the property when the petitioner filed an application in Crl.M.P.NO.103/96 which was dismissed by him. The learned Government Advocate appearing for the respondent refuted the above contention of the learned counsel by stating that the confiscation of property was done by the Magistrate under S. 452 of Cr.P.C., and the proceedings were dropped against petitioner under S. 258 of Cr.P.C which shall have the effect of discharge as admitted by the petitioner himself, and so if the petitioner was aggrieved against the confiscation of the property, he can only seek the relief of the same by way of an appeal under S. 454, Cr.P.C, and in the present case the order of confiscation is dated 14-5-1996 and this petition under S. 482 of Cr.P.C was filed on 29-7-1997 after a period of 60 days, which is the period of limitation for filing an appeal, and in such circumstances the petitioner is not entitled to the relief, as prayed for by invoking the inherent jurisdiction of High Court under S. 482 of Cr.P.C. 5. It is not the case of the petitioner that he was not aware of the order passed by the learned Magistrate under S. 258, Cr.P.C on 7-6-1996 and the petitioner was not aware of the confiscation of the two wheeler on the said date. The confiscation of the property by the Magistrate can only be made under S. 452 of Cr.P.C. and not under S. 258, Cr. P.C. The reason is that the property involved in a crime cannot be confiscated under S. 258 of Cr.P.C, which states that in any summons case instituted otherwise than upon complaint, a Magistrate of the first class may stop the proceedings at any stage and when such stoppage is made after the evidence is recorded, pronounce a judgment of acquittal and in any other case release the accused and such release shall have the effect of discharge in the present case no. evidence was recorded but the proceedings were stopped on the basis of a final report filed by the police and the release of the accused will amount to discharge. The confiscation of the property is not contemplated in S. 258 of Cr.P.C that it can be done only under S. 452 of Cr.P.C which states that when an enquiry is concluded, the Court may make such order for the disposal of confiscation of any property produced before it. The confiscation of the property is not contemplated in S. 258 of Cr.P.C that it can be done only under S. 452 of Cr.P.C which states that when an enquiry is concluded, the Court may make such order for the disposal of confiscation of any property produced before it. So the remedy that is available to the petitioner is only by way of an appeal under S. 454 of Cr.P.C against the order of confiscation. Hence, the petitioner ought to have filed an appeal for the return of the property within 60 days from the date of the order under S. 258, Cr.P.C, i.e., on 14-5-1996 which resulted in the confiscation of the property and which can be done only under S. 452 of Cr.P.C. Therefore the petitioner cannot circumvent the law of limitation and file a petition before the lower Court for the return of property on 7-6-1996 and upon dismissal of the same on 7-6-1996 in Crl.M.P.No.103/96 the petitioner cannot come forward with this petition on 29-7-1997 under S. 482 of Cr.P.C, to set aside the order of the Magistrate and seek the relief of return of the property, which was confiscated as early as on 14-5-1996. 6. It is also significant to note that the petitioner has not come forward with this application under S. 482 of Cr.P.C or even file an appeal under S. 454 of Cr.P.C, within 60 days from the date of dismissal of the petition in Crl.M.P.No.103/96. Therefore the present application under S. 482 of Cr.P.C cannot even be converted into an appeal after condoning the delay, whatever it might be, for the return of the property. Considering the above facts and circumstances of the case I am to hold that eh petitioner is not entitled to the relief prayed for under S. 482 of Cr.P.C and the same has to be dismissed, and consequently I answer this point as against the petitioner. 7. In the result the petition is dismissed.