1. The petitioner is the owner of a public carrier hearing MSV 9380. On 6-10-1974, three persons, Nagappa Naicker and Kumar, both of Nazarathpet and Manicka Mudaliar of Thirumalisai are said to have entrusted with the petitioner 80 bags of paddy and one bag of ragi for transport. from Edayarpakkam to Nazarethpet both of which are inside Sriperumbudur taluk in Cbingleput Dt. As there was no restriction on the movement of the goods from one place to another with-in the same taluk, the petitioner is said to have accepted the paddy and ragi entrusted to him for transport and the bags were loaded in his lorry MSV 9380. The lorry when it was proceeding from Edayarpakkam to Nazarethpet had been intercepted by the first respondent at Thinnnangalam and the entire 81 bags found in the lorry had been seized.
2. The petitioner questions the validity of the said seizure on various grounds. Firstly he contends that no mahazar was pre-pared and no independent witnesses were called to witness the search and seizure. Secondly he contends that the seizure is, in any event, invalid and illegal as there is no violation of the Tamil Nadu Paddy and Rice (Movement Control) Order, 1970 or any other law. The petitioner states that he is under an obligation as a carrier to deliver the goods at Nazarethpet to the above three persons who entrusted the bass and that they are actually demanding the delivery of the goods.
3. The first respondent has filed a counter-affidavit stating that while cheking the vehicles to arrest illicit movement of paddy and rice at Thirumangralam village in the Madras Bangalore trunk road, the Additional Taluk Supply Officer, Sriperumbudur found on 6-10-1974, at about 1-30 a. m. the petitioner's lorry plying towards Madras, that on a cheek of the lorry it was found to be transporting 80 bags of paddy and one bag of ragi without a valid permit, that there was no entry in the goods vehicle resister of the lorry about the movement, that the persons said to have entrusted the paddy are not dealers licensed under the Tamil Nidu Paddy and Rice Dealers (Licensing, Regulation and Disposal of Stocks) Order, 1968 (hereinafter referred to as the licensing order) and that therefore the stock was seized and deposited in the godown at Modern Rice Mill, Chingleput on 7-10-1974. The first respondent has also stated, that one of the three persons who had entrusted the goods to the petitioner has admitted in his statement that the goods were Purchased and transported for business, that the petitioner's assertion that the paddy was purchased by the three persons for personal consumption is clearly an afterthought, and that at the time of the seizure a mahazar was in fact prepared and the signature of two independent witnesses, namely, the village Munsif of Poonamallee and the village munsif of Avadi, had been obtained. The first respondent has further stated that as the paddy was purchased for business as is seen from the statement o one of the three persons who had entrusted the bags to the petitioner for transport, without obtaining a licence under the Licensing Order, the goods bave been rightly seized for the violation of Clause 3 (1) of the Licensing Order read with Section 3 of the Essential Commodities Act, 1955. The first respondent has also taken an objection to the maintainability of a writ filed by the owner of the public carrier on the ground that the owners of the stocks seized alone should question the seizure of the goods and not the public carrier to which the goods did not legally belong.
4. The learned counsel for the petitioner firstly contends that a seizure could validly be made under Clause 14 of the Licensing Order only when there is reason to believe that any provision of the Licensing Order has been or is about to be contravened, after following the procedure set out in Sections 102 and 103 Crl. P. C. which stand attracted to a seizure made under clause 14 by virtue of Sub-clause (3) therein that in this case the procedure contemplated by Sections 102 and 103 Crl P. C. had not in fact been followed and that till the filing of the counter it has nowhere been stated by the respondent as to which of the provisions of the Licensing order had been contravened and it is only in the counter-affidavit it has been urged that Clause 3 (1) of the Licensing Order had been contravened.
5. As regards the question as to whether the procedure contemplated by Sections 102 and 103 Crl. P. C. had been followed in this case, in the counter-affidavit the first respondent has stated that a mahazar had in fact been prepared at the time of the seizure in the presence of two independent witnesses who have attested the mahazar. The file containing the mahazar had also been produced before the court. The learned counsel for the petitioner contends that the mahazar should have been prepared only at a later point of time and not at the time of the seizure, that the two independent witnesses, the village munsifs of Poonamallee and Avadi were not present at the time of the seizure, and that their signatures had been taken only later. From the circumstances under which the seizure came to be made, it appears to me to be incredible that the said two independent witnesses were there at the time of the seizure which took place at about 1-30 a. m. at Thirumangalam village in the Madras Bangalore highway. It is said that the check was in the normal course of the duties of the Additional Taluk supply officer. It is not as if the Taluk Supply officer was waiting at Thirumangalam village at 1-30 a. m. on 6-10-1974, along with the said witnesses who are residents of Poonamallee and Avadi. It is therefore, clear that the mahazar even if it had been prepared at the time of the seizure could not have been attested by the so-called independent witnesses. There is also considerable doubt as to whether the mahazar was in fact prepared at the time of the seizure as urged by the first respondent. The mahazar does not contain the signature of the driver of the lorry and the persons said to have travelled in the lorry. Though the statements are said to have been taken from them on the spot, their signatures do not find a place in the mahazar. The first respondent has stated in the counter that the driver and the occupants of the lorry refused to sign the mahazar. This statement cannot be accepted for the reason that their signatures have been taken in the statements given by them at the time of the seizure. I have to, therefore, agree with the contention of the learned counsel for the petitioner that the mahazar had not been prepared at the time of the seizure but was brought into existence at a later point of time. If the mahazar had not been prepared as contemplated by Sections 109, and 103 Crl. P. C., then the seizure is illiberal. I am not inclined to agree with the learned Government Pleader that the failure to follow the procedure contemplated by Sections 102 and 103 Crl. P. C., will not make the seizure invalid, as following the procedure is not obligatory.
6. It has been held in Mangudi v. Sub-Inspector, C. I. D. Ramnad 1970 MLW 278 = AIR 1971 Mad 275. that the intendment of Clause 14 of the Madras Paddv and Rice Dealers Licensing and Regulation) Order in having attracted the mandatory procedural prescriptions envisaged in Section 103 Crl. P. C., is only to make such searches and seizures beyond controversy and to avoid colourable exercise of such powers by the officers who are enabled to do so under the order, and that, therefore, an, open violation of the statutory prescriptions as comprehended in Section. 103 Crl. P. C. which in turn is attracted by Sub-clause (3) of Clause 14 of that order in making the search and seizure, will make the seizure not only irregular but also illegal. In Annul Latif v. Collector of Tiruchirapalli, 1971 M LW 89, it has again been reiterated that when the procedure prescribed for search and seizure of the goods in a motor vehicle as contemplated by Clause 14 of the Licensing Order, 1968 has not been followed in that the mahazar which has to be attested by two respectable witnesses etc, has not been prepared as mandatorily required under Section 103 Crl. P. C. the seizure violates one of the fundamental prerequisites of search and seizure and will therefore be invalid.
7. As the seizure has been found to be illegal it is not necessary to go into the question as to whether there has been or was likely to be any contravention of Clause 3 (1) of the Licensing Order at the time of seizure as urged by the first respondent.
8. One of the objections raised by the first respondent is that the petitioner being only a public carrier not vested with the ownership of the goods cannot maintain the writ petition seeking a writ of mandamus for the return of the goods in question. If: is true the owners of the goods have not come before the court and it is only the common carrier from whose custody the goods were seized by the first respondent who has prayed for a mandamus directing the return of the goods seized from his custody. As already stated, in the writ petition two questions have been canvassed. One is whether the search and seizure is valid and the second is whether there has been any violation of Clause 3 (1) of the Licensing Order. For deciding the first question as to the validity of the seizure the presence of the owners of the goods is not necessary; while for a decision on the question whether there has been a violation of Clause 3 (1) their presence is clearly necessary for it is only they who can explain the position as to whether the goods had been purchased for their consumption or for business and if the purchase was for business whether they had the requisite licence to deal in those goods. But the seizure has been held to be illegal and therefore, it is not necessary to go into the question as to whether there is any violation of Clause 3 (1) of the Licensing Order. In the circumstances, the presence of the owners of the goods before the court does not appear to be necessary. As the petitioner who is a public carrier to whom the goods had been entrusted by the owners is entitled to be in possession or custody of the goods till they are delivered to the owners or their nominees at the destination, he can set the return of the goods from the persons who have unauthorisedly and illegally seized the goods from his custody.
It is well established that possession is a good title against any one who cannot show a better right except the true owner himself, that possession is normally treated as a provisional or temporary title even against the true owner himself, and that legal remedies available for the protection of possession are called possessory remedies while those available for the protection of ownership of title is called proprietary remedies. In Wazirchand v. State of Himachal Pradesh, : 1954CriLJ1029 , such a question as this came up for consideration. In that case the seizure of certain goods had been effected from the actual possession of the petitioner for a writ of Mandamus, wherein he challenged the validity of the seizure. It was contended before the Supreme Court that in order to determine the legality of the seizure it is not necessary to determine the true nature of the title of the goods seized, that the petitioner could be granted relief even if he was not able to establish the same, that the only point that needed consideration was whether the seizure was under the authority of law or otherwise, and that it is found that the seizure was not supported by any legal authority, a writ of mandamus should issue directing restoration of the goods seized to the person who had the custody at the time of the seizure, This contention of the petitioner was accepted by the Supreme Court and it held that as the seizure of the goods from the possession of the petitioner was illegal, the petitioner is entitled to restoration of possession of the goods. In view of the said decision of the Supreme Court it is not possible to uphold the objection raised by the first respondent that the petitioner is entitled to seek a relief under Article 296 of the Constitution.
9. The writ petition is, therefore allowed and the rule nisi is made absolute. There will be no order as to costs.