Karri Ammadamma vs The State of Andhra

Chandra Reddy, J.—This is a petition against the order of the District Magistrate, East Godawari, confirming that of the Stationary Sub-Magistrate Rajamundry, ordering the confiscation of a cycle-rickshaw. The petitioner is the owner of a cycle-rickshaw. It appears, on 7th January 1954, at about 5.30 p.m., a man called Bodapati Surayya was found riding a cycle-rickshaw concealing two black motor tubes containing two and a half gallons of arrack inside the seat hole of the rickshaw covered with the cushion seat. He was found guilty on his own admission and sentenced to rigorous imprisonment for five weeks under S. 4 (1) (a) of the Madras Prohibition Act. The Magistrate ordered the confiscation of the cycle-rickshaw under S. 13 of the Madras Prohibition Act (Act X of 1937). Claiming to be the owner of this rickshaw, which was hired by the accused in that case, and alleging that she had no knowledge of the purpose for which the rickshaw was going to be put when it was hired out, the petitioner filed a petition before the Magistrate for return of it. The petition was dismissed.

On appeal the order of the Sub Magistrate was confirmed by the District Magistrate, East Godavari. The learned Appellate Magistrate thought that S. 13 of the Madras Prohibition Act was mandatory and did not leave any discretion to the Magistrate concerned in the matter of confiscation and that it did not require the Magistrate to satisfy himself whether the owner knew or had reason to believe that the vehicle was likely to be used for carrying arrack. This Revision Petition is filed against this order and the view of the District Magistrate is canvassed.

In order to see whether the opinion of the Magistrate is correct or not, it is necessary to refer to the terms of S. 13 and S. 14, Sub-S. (1) which are as follows :

In any case in which an offence has been committed against this Act, the liquor 1049 drug, materials, still, utensil, implement or apparatus in respect or by means of which the offence has been committed, shall be liable to confiscation along with the receptacles, packages, coverings, animals, vessels, carts or other vehicles used to hold or carry the same.

(1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the Court decides that anything is liable to confiscation, such confiscation may be ordered by the Court.

Reading Ss. 13 and 14 1942 M.W.N. 749-55 L.W. 692 together, I think it is not obligatory on the part of a Magistrate to confiscate a vehicle used to carry the liquor, drug, etc. While S. 13 confers a power upon the Magistrate to confiscate, S. 14 provides for passing of an order of confiscation. The expression "shall be liable to confiscation" in S. 13 only means "is liable to be confiscated." Under S. 14, the Magistrate has to consider whether confiscation should be ordered or not. Under that Section it is only when it is established that the owner of the vehicle had knowledge or had reason to believe that it was going to be used for the purpose of committing an offence, the Magistrate could direct it to be confiscated. It is a different matter if the person committing an offence against the Act is the owner of the vehicle in which case no question of knowledge arises. The situation is not the same if the offender is not the owner of the vehicle. It would not be proper to pass an order of confiscation in such circumstances without proof that the owner had knowledge or had reason to believe that the vehicle was going to be put to such a use.

Interpreting an analogous provision of law, that is, S. 11 of the Opium Act (Act X of 1878) Mr. Justice Horwill laid down in Chakrapani Chetti v. Emperor 1942 M.W.N. 749 (1)-55 L.W. 692 that before an order of confiscation could be passed, the Court has to satisfy itself that the owner of the vehicle, who had not committed the offence, knew or had reason to believe that his vehicle was likely to be used for such a purpose. To the same effect is the decision of Mr. Justice Somasundaram in Crl. M.P. No. 2286 of 1949 in which the question arose whether an order confiscating the vehicle under S.14 of the Madras Prohibition Act could be passed without proof of requisite knowledge on the part of the owner.

On this discussion, it follows that the order of the Courts below is erroneous and they have to investigate whether the petitioner had known or had reason to believe that her vehicle was going to be used for the purpose of committing an offence. However, having regard to the time that had lapsed and to the trivial nature of the offence, I think it is not necessary to send the matter back to the trial Court. I would direct the return of the cycle-rickshaw to the petitioner who is the owner thereof. In the result the revision case is allowed.