Shajahan and another vs State

Arunachalam, J.—Petitioners in Criminal O.P. No. 11371 of 1992 are A-2 and A-3 in C.C. No. 2722 of 1992, pending on the file of the

Judicial Magistrate No. I, Mayiladuthurai. Petitioner in Criminal O.P. No. 12369 of 1992 is A-1 in the aforesaid calendar case. In respect of an

occurrence which had taken place at or about 4:00 a.m. on 4.1.1992, two final reports were filed, one dated 13.1.1992 and the other dated

7.7.1992. In the first final report, five persons have been shown as accused and they are now arrayed as A.4 to A.8 in the calendar case

aforestated. That final report will show that on 4.1.1992 at or about 4:00 a.m. at Mayiladuthurai-Sirkali, at Anathandavapuram Road junction,

Balakrishnan (A-4), driver of the mini lorry bearing registration number PYT1512, with other accused, Rajendran, Chinnaswamy, Natarajan and

Sekar (A.5 to A.8) who are stated to be cleaners, had transported 90 gunny bags, each bag containing 50 bottles of coloured arrack, the capacity

of each bottle being 500 ml. Initially, charge-sheet was filed by the Sub-Inspector of Police (Law and Order), Mayiladuthurai. Since the initial

investigation was felt to be not thorough, Inspector-General of Police (Prohibition), Madras, directed the Deputy Superintendent of Police

(P.E.W), Nagapattinam, to carry out further investigation by visiting Pondicherry and Karaikkal, Union Territories, and on completion, forward a

final report u/s 173(8), Code of Criminal Procedure The Deputy Superintendent of Police (P.E.W), Nagapattinam, was also directed to

interrogate the owner of Arul Pharmacy, who has now been arrayed as A-9 in C.C. No. 2722 of 1992. The object was also to find out whether

there was any evidence indicating complicity of the owners of the vehicle. In pursuance of the directions of the Inspector-General (Prohibition),

Madras, after informing the trial Magistrate, further investigation was conducted by the Deputy Superintendent of Police, Prohibition Enforcement

Wing, Nagapattinam, during the course of which he examined one Thirumalai, son of Srinivasan, who is the Manager of M/s. M.O.H. Canter

Parcel Service situated at Karaikkal. It appears that during investigation A.9 was also examined.

In these petitions, we are concerned only with A.I to A.3 and not about other accused. The second investigating officer forwarded an amended

final report in which Petitioners are stated to be liable u/s 4(1)(a) read with Section 14-A of the Tamil Nadu Prohibition Act. A.1 to A.8 in the

amended charge-sheet, are shown to be liable u/s 4(1)(a) of the said Act. A.9, the owner of Arul Pharmacy, has been sought to be made liable u/s

4(1)(a) read with Section 12 of the Tamil Nadu Prohibition Act. The amended charge-sheet shows that on 3.1.1992, A.1 (Petitioner in Criminal

O.P. No. 12369 of 1992), Managing Partner of Canter Parcel Service, with the concurrence of A.9 had handed over the lorry to the latter,

knowing that he intended to transport spurious liquor mixed with chloral hydrate styled as ""Sandanasavam"" (an ayurvedic preparation) using

spurious transport documents of Lakshmi Agency, No. 55, Bharathiar Road, Karaikkal. The second final report also states that A.9 had instigated

A.4 to A.8 to load the bottles, seized from the vehicle from door No. 14, Aswath Illam, Udayankulam, Koilpathu, Karaikkal, and take them to

Tamil Nadu.

Petitioners in Criminal O.P. No. 11371 of 1992 are stated to be liable, since they are partners of the aforesaid Canter Parcel Service.

Both these petitions have been preferred u/s 482, Code of Criminal Procedure to call for the records in C.C. No. 2722 of 1992 on the file of

Judicial Magistrate No. I, Mayiladuthurai, and quash the pending prosecution in so far as it concerns the Petitioners. Mr. N. Nataraian, learned

Senior Counsel appearing on behalf of the Petitioners in both these petitions, did not dispute that A.1 is the Managing Partner and A.2 and A.3 are

partners of the said transport organisation. He does not also dispute that the mini lorry bearing registration number PYT 1512 belongs to the said

transport organisation and it had been hired out to A.9, through the manager of the firm, Thirumalai, examined by the prosecution during the course

of further investigation by the second investigating officer. He contended that in the usual course of business, the mini lorry was hired to A.9 who

has similarly taken this vehicle on earlier occasions. The thrust of his argument was, that the Petitioners are sought to be made liable, in view of

Section 14-A of the Act, on a fiction, which cannot arise at this stage, if the provisions contained therein are read in conjunction with Section 14(1)

and (2) of the Act, relating to the manner in which confiscation of a vehicle could be ordered. In other words, the argument was that Section 14-A

of the Act does not create any offence, but contains only a rule of evidence. Expatiating this contention, he argued that u/s 14A of the Act, the

Court is empowered to order confiscation of the vehicle at the time when the offender was convicted or acquitted. Again u/s 14A if the Court

decides, during the trial of a case for an offence against the Act, that anything was liable to confiscation, the Court shall so order confiscation.

However, at that stage, under the proviso, the vehicle shall not be confiscated under Sub-sections (1) and (2) of Section 14, without hearing the

owner of the vehicle and any person claiming any right thereto. If the Court gets satisfied that the owner and such person had exercised due care in

the prevention of commission of such an offence, obviously confiscation cannot be ordered. The submission was that the question of confiscation of

the vehicle can arise only after application of judicial mind either during trial of case for an offence under the Act or at its termination when the

offender is convicted or acquitted. In that background, he invited the attention of this Court to the provisions of Section 14-A of the Act which

reads as follows:

Where any animal, vessel, cart or other vehicle is used in the commission of any offence under this Act, and is liable to confiscation, the owner

thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly unless he

satisfies the court that he had exercised due care in the prevention of the commission of such an offence.

The emphasis was that unless the Court arrives at a decision u/s 14(1) or 14(2) of the Act, that the vehicle concerned is liable to confiscation, the

question of deeming the owner of the vehicle to be guilty will not arise. The thrust in this submission was that the investigating agency cannot array

the owner or other person concerned with the vehicle, as an accused initially, only on the basis of the deeming provision u/s 14-A of the Act, which

can arise only after application of judicial mind u/s 14(1) or (2) of the Act. He pointed out that the basis for this prosecution against the Petitioners

is restricted to the statement of Thirumalai and Thirumalai alone, recorded during investigation.

Mr. R. Raghupathi, learned Additional Public Prosecutor, while countering the contentions advanced by the Petitioners'' counsel, argued that the

initial investigation was haphazard which led to further investigation, keeping in view the object behind the enactment. He fairly stated, that the

prosecution stands or falls at this stage, only on the statement of Thirumalai as far as the Petitioners are concerned. I have had the advantage of the

statement of Thirumalai being read over to me very meticulously by the Petitioners'' counsel as well as the learned Additional Public Prosecutor.

The State''s counsel further urged that Section 14-A of the Act will have to be read together with Section 14(1) and (2) of the Act and dissection

may not serve any purpose. He referred to Section 43 of the Tamil Nadu Forest Act, and the decision of Padmini Jesudurai, J., rendered under the

provisions of the said Act. He would, however, strenuously submit, that on the statement of Thirumalai; there can be no impediment to the

Petitioners being arrayed as accused to face their trial. Certain other decisions were placed for my consideration by either counsel which I will refer

to at the relevant context.

Before entering into the arena of legal submissions advanced, it would be better to be certain about the factual details, that can be discerned

from the statement, of the only witness Thirumalai, on which the whole prosecution of the Petitioners, stands founded. It will be better to nave the

statement of the said Thirumalai translated into English at least in so far as the relevant portions are concerned. It reads as follows:

For the past three years, I am working as manager in M/s. M.O.H. Canter Parcel Service situated at Karaikkal. The owners of the said parcel

service are (1) M.O.H. Iqbal (A.3), (2) F. Shajahan (A.2), (3) U. Saleem (A.I). Mini lorry bearing registration number PYT1512 belongs to

Canter Parcel Service. The said mini lorry used to be hired out to customers. Whenever Alexander (A.9) engaged this lorry to transport ayurvedic

medicinal preparations manufactured by Lakshmi Agency, Karaikkal, for Arul Pharmacy, to Sirkali, Kollidam and other places, A.9 would discuss

with the owners of the Parcel Service in detail. After ascertaining all particulars, the owners would direct him to engage a driver for the lorry. In the

same manner, on 3.1.1992 at or about 6.00 p.m. A.9 met A.1 at the premises of Canter Parcel Service at Karaikkal and wanted to hire the lorry

to transport ayurvedic medicinal preparations to Sirkali, Kollidam and Kumbakonam. On such representation, A.1 fixed the hire charges at Rs.

500/- and directed him to fix up mini lorry bearing registration number PYT 1512 and engage driver Balakrishnan (A.4 in the calendar case) to

facilitate A.9 utilising the lorry for the purpose mentioned by him. Similarly, A.5 was engaged as cleaner by him, for the very same purpose. He has

no knowledge about Lakshmi Agency, He learnt later that on 4.1.1992 at or about 4:00 a.m. Mayiladuthurai police had seized the lorry while it

was transporting liquor bottles mixed with poison. He further learnt that A.4 to A.8 were arrested along with 90 bags of bottles containing spurious

liquor. On the directions of the owners of Canter Parcel Service, he preferred Criminal O.P. No. 5359 of 1992 for return of the mini lorry involved

in this crime and the same was ordered by he High Court, as an interim measure. This lorry has been utilised on several previous occasions for

transport of medical preparations on hire basis with the knowledge of A.1. Saleem.

A reading of this statement, does not anywhere indicate, that the Petitioners had hired out this lorry to A.9, knowing fully well that the latter had

intended to utilise the lorry for transport of spurious liquor. Mr. R. Raghupathi, learned Additional Public Prosecutor laid stress on the following

passage in the statement of Thirumalai, to content, that at this state, the said piece of material would be sufficient to put the Petitioners on trial. The

passage in Tamil reads as follows:

Learned Additional Public Prosecutor urged that the words

would be sufficient to indicate, at least inferentially, the mens rea of the Petitioners, connecting them with illicit transport of spurious liquor by A.9.

It would be very difficult to accept this contention, for the other possibility of detailed enquiry from the transporter, about the purpose for which the

lorry was to be used, was being ascertained, before it was let out on hire, indicating the visible anxiety of the owners, not to allow the vehicle to be

used for any illegal purpose. As long as this possibility is open, I am afraid that the meaning sought to be attributed to those words, which are so

plain, cannot be attributed the significance, sought to be put forth by the State''s counsel. The lines following the aforesaid averments further show

that on 3.1.1992 when A.9 met A.1 to hire the lorry, it was specifically stated to the latter by the former that he intended to transport ayurvedic

drugs. It was on that representation that A.1 had directed Thirumalai to send the lorry involved in this crime, after fixing up Balakrishnan (A.4) as

the driver. The hire charge was also fixed at Rs. 500/-. Nothing was also then known about Lakshmi Agency. At this stage, on the statement of

Thirumalai alone, it will be very difficult to contend, that knowing fully well that A.9 had intended to utilise the mini lorry for the purpose of illicit

transport of spurious liquor, the Petitioners herein, either individually or jointly, had hired out this vehicle for such an illegal purpose. If during

investigation material had been collected to indicate conspiracy between these Petitioners and the other accused, the position may have been

different. Equally, if investigation had shown abetment of the main offence, committed by the Petitioners, the position may still be different.

Petitioners are not sought to be made liable with the aid of Section 12 of the Act, but are shown to be liable in view of the deeming provision

contained u/s 14-A of the Act.

Now that the factual background to prosecute the Petitioners has been found to be practically of no use, it will be necessary to scrutinise the

legal contentions advanced.

A perusal of Section 14 of the Act shows that apart from the power provided to Courts u/s 14(1) and (2) of the Act to confiscate anything

liable to confiscation, such a power has also been invested, in the Collector or other prohibition officer in charge of the district or any other officer

authorised by the State in that behalf. Under Sub-section (3) they have the power to order confiscation when an offence against this Act has been

committed, but the offender is not known or cannot be found, or when anything liable to confiscation under this Act and not in the possession of

any person cannot be satisfactorily accounted for. This Sub-section obviously does not cover the facts in instant prosecution and this position is

conceded by either counsel. Extraordinary powers have been given to the executive u/s 14(4) of the Act, for confiscation of a vehicle etc., used in

the commission of offences against this Act. But, we are not concerned with the said provision as it existed before substitution by Act 24of 1990

since it had been struck down by a Division Bench of this Court and the said verdict is still effective.

For the purpose of a decision in this case, we will therefore be concerned only with Sub-sections(1) and (2) of Section 14 of the Act the

substituted Section 14(4) and the provisions u/s 14-A of the Act. I have already extracted Section 14-A of the Act, which deems the owner of the

vehicle which is used in the commission of any offence against this Act and is liable to confiscation, guilty of such offence, permitting his being

prosecuted against and punished accordingly, unless he satisfies the Court that he had exercised due care in the prevention of commission of such

an offence. A Division Bench of this Court in Shanthalakshmi, D. v. The State of Tamil Nadu (1983 L.W. (Crl.) 74) while considering the validity

of the various provisions of Tamil Nadu Prohibition Act and holding ultimately that Section 14(4) of the Act offended Arts. 14 , 19(1)(g) and 300-

A of the Constitution of India, and striking it down, observed as follows:

No doubt, according to the learned Counsel, this section is a rule of evidence, while according to the learned Advocate-General, it is a substantive

provision. Just as Section 4(2)(a), which is a rule of evidence, deals with possession of illicit liquor, Section 14-A deals with transport of illicit

liquor, and as such this section can be construed only as a rule of evidence, since a procedure has been set up as to how the owner of the vehicle is

liable. Except for shifting the burden on to the accused, which can be done in a given legislation, there is absolutely nothing in Section 14-A to

strike it down.

It is therefore obvious, on the basis of the verdict of the Division Bench, that Section 14-A is not a substantive provision, but only embraces within

itself a rule of evidence.

The Division Bench has struck down sub S. (4) of Section 14 of the Act as it existed in the Act brought in by amendment by Tamil Nadu Act

9 of 1969. It is now seen that Sub-section (4) was substituted in the statute book by Act 24 of 1990. Since subS.(4) which was struck down is

different from the present Sub-section, the concept contemplated under the new Sub-section will have to be scrutinised. It is better to extract new

sub-S.(4) to Section 14, which reads as follows:

Notwithstanding anything contained in Sub-Ss.(1) to (3), if the collector or other prohibition officer in-charge of the district or any other official

authorised by the State Government in that behalf is satisfied that an offence has been committed against this Act and whether or not a prosecution

is instituted for such offence, he may without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of

any animal, vessel, cart or other vehicle used in the commission of such offence:

Provided that, before passing an order of confiscation, the owner or the person from whom such animal, vessel, cart or other vehicle is seized, shall

be given-

(i) a notice in writing informing him of the grounds on which it is proposed to confiscate the animal, vessel, cart or other vehicle;

(ii) an opportunity of making a representation in writing within a reasonable time, not exceeding fourteen days, as may be specified in the notice

against the grounds of confiscation; and

(iii) a reasonable opportunity of being heard in the matter:

Provided further that the owner or the person from whom such animal, vessel, cart or other vehicle is seized shall be given an option to pay, in lieu

of its confiscation, an amount not exceeding the market price of such animal, vessel, cart or other vehicle.

A reading of this Sub-section clearly postulates that notwithstanding anything contained in the earlier Sub-sections, the Collector or other officers

contemplated therein, on being satisfied that an offence has been committed against this Act, irrespective of institution of a prosecution or not

without prejudice to any other punishment to which the offender will be liable under the Act, order confiscation of any animal, vessel, vehicle etc,

used in the commission of such offence. Even here, under the proviso, the Collector or the Officer concerned, before passing an order of

confiscation, must direct notice in writing to the owner or the person from whom such animal, vessel, cart or other vehicle is seized, informing him

of the grounds on which it was proposed to confiscate the said thing, apart from permitting written representation and affording an opportunity for

oral hearing. This section also postulates an option being afforded to the owner or other person to pay an amount, as contemplated under the

proviso, in lieu of confiscation. The concept underlying subS.(4) of Section 14 seems to be totally different from the contemplation under sub-Ss.

(1) and (2). Under sub-Ss.(1) and (2), the decision is that of the Court regarding anything liable to confiscation. The words used in Section 14-A

are again. ""liable to confiscation: and the later part of that section throws the onus on the said person to satisfy the Court that he had exercised due

care in the prevention of the commission of such an offence. u/s 14-A, the procedure commences, after the Court decides, either under sub-S.(1)

or sub-S.(2) of Section 14, that anything is liable to confiscation, when the owner thereof stands deemed to be guilty.

From the wordings found in Sub-section (4) of Section 14, it is apparent, that it has no connection with Section 14-A of the Act. u/s 14(4), the

Collector or other officer is empowered to order confiscation under a set of circumstances contemplated therein, whereas under Sub-sections (1)

and (2) read with Section 14-A, it is the Court which decides about the liability for confiscation of anything used in the commission of an offence

under the Act and then the deeming provision of guilt of the owner comes into operation. I have no Hesitation in holding, that Section 14(4) does

not in any way govern the provisions contained in Section 14-A of the Act. To reiterate, under Sub-sections (1) and (2) of Section 14, liability to

confiscation, rests on the decision of the Court, which again is taken into the contents of Section 14-A of the Act, while ""Court"" is totally omitted

from Section 14(4) of the Act. Naturally, the collector or other officer cannot exercise power u/s 14-A of the Act or Sub-sections (1) and (2) of

Section 14. The introduction of Sub-section (4) by Act 24 of 1990, does not affect the facts in the instant case.

The words ""and is liable to confiscation"" used in Section 14-A and the words ""shall be deemed to be guilty of such offence"" will have to be

carefully construed, while analysing the divergent contentions placed before me. It is the law, that the import of the word ""liable"" actually depends

on the context, on the entire setting in which it appears. The word ""liable"" meant, on the basis of decided cases, that a person was imperilled of

having something done to him to which he was exposed and subjected to, or from which he is likely to suffer. The words ""shall be liable to

confiscation"" only mean that if the offence is committed, then the vessel must be confiscated. The word ""liable"" means a further possibility or

probability happening which may or may not actually occur. The word liable does not necessarily convey the sense of any inevitable or unavoidable

consequence every time. Useful reference could be made to the decision of Kapur, J., in The State Vs. Amru Tulsi Ram and Another, . The word

liable"" occurring in many statutes has been held as not conveying the sense of an absolute obligation or penalty, but merely importing a possibility

of attracting such obligation, or penalty. There can be no doubt that the Court must give effect to the will and inbuilt policy of the legislature as

discernible from the object and scheme of the enactment and the language employed therein. The word ""deemed"" creates artificial data in the place

of existing fact. It is a statutory fiction. It must be given full effect to and carried to its logical conclusions. When a person is deemed to be

something, the only meaning possible is whereas he is not in reality that something, the Act requires him to be treated if he were. The word is used

at times to introduce artificial constructions which would not otherwise prevail. If this is the meaning that could be given to the words ""liable to

confiscation"" and ""deemed to be guilty"", the question to be posed is, as to the stage at which a person could be deemed to be guilty u/s 14-A of

the Act, which in turn depends on the words ""liable to confiscation"" employed in the same section. Our attention, therefore, has to be necessarily

diverted to Section 14(1) and (2) of the Act. Section 14(1) of the Act will arise only on the termination of the trial, for that section takes within its

fold conviction or acquittal of the offender at which stage the Court decides if anything is liable to confiscation and on that decision confiscation

shall be ordered by the Court. This provision correlates to Section 452 of the Code of Criminal Procedure. At the moment, on instant facts, this

section cannot come into operation, for the trial is yet to commence. As far as Sub-section (2) of Section 14 is concerned, it can operate at any

previous stage other than the one contemplated under Sub-section (1) of Section 14 of the Court. During the course of the trial, if the Court arrives

at a decision that anything is liable to confiscation, the Court is bound to order confiscation. Even here, the decision of the Court is paramount, to

arrive at a conclusion that anything is liable to confiscation. At that stage, under the proviso, the Court will have to afford an opportunity to the

owner or any person claiming any right thereto, that in spite of his having exercised due care in the prevention of such an offence, the crime had

been committed, to avoid confiscation. In other words, confiscation is not a must, but it depends upon judicial discretion exercised by the Court,

on the material placed before it, either during the course of the trial or at the conclusion of the trial. Section 14(1) and (2) also prima facie exclude

the owner being an accused in a certain set of circumstances, when he can be brought in only under the deeming provision u/s 14-A, in view of the

vehicle owned by him being liable for confiscation, in the opinion of the Court.

At the risk of repetition, it has to be stated, that the owner of a vehicle can possibly be prosecuted sans the deeming provision of Section 14-

A, if during investigation material had been collected to indicate conspiracy to commit the offence or abetment of the offence or similar such

material which need not have to be exhaustively listed. But if the prosecution seeks to connect the owner of the vehicle with crime, based only on

the deeming provision u/s 14-A of the Act, then it appears to my mind, that it can happen only after the Court arrives at a decision, that anything is

liable to confiscation, after application of mind to the material placed before it, either during the trial of a case or at its conclusion. If it was the

intention of the legislature to invariably prosecute the owner of the vehicle, merely because the vehicle had been used in the commission of an

offence under the Act, without anything further, the need for a proviso u/s 14(2) of the Act appears to be otiose. It is therefore possible to visualise

prosecution of owners of vehicles, in a given set of circumstances right from the initiation showing them as accused in the final report, in the event of

material collected during investigation indicating their complicity in the crime. If that stage has passed, the only other stage in which the owner of the

vehicle will become liable, will be on the decision of the Court to confiscate the vehicle, which leads to a fiction created u/s 14-A of the Act, by

which connected with the liability to confiscation of the vehicle, the owner who is deemed to be guilty is liable to be proceeded against and

punished accordingly. Provisions of Section 14-A of the Act can therefore come into operation only after the Court arrives at a decision either u/s

14(1) or (2) of the Act, that anything was liable to confiscation for an offence against the Act. Section 14-A can be compared with Section 319 of

the Code of Criminal Procedure, where during the course of an enquiry or trial it appears from the evidence that any person, not being the

accused, has committed any offence, for which such person could be tried together with the accused already arrayed. It is at that stage, relevance

of opportunity to the owner of the vehicle, contemplated under proviso Section 14(2) of the Act becomes clear. The following words used in the

proviso, ""that the owner and such person had exercised due care in the prevention of the commission of such an offence"" find incorporated in

Section 14-A of the Act, as well. Therefore, it is very clear that Section 14(1) and (2) of the Act and Section 14-A will have to be read together

and cannot be dissected.

Padmini Jesudurai, J., had occasion to consider the scope for confiscation of vehicles involved in forest offence, in P.C. Pocker Vs. State, That

decision was relied upon by the learned Additional Public Prosecutor, in emphasis of his contentions. But, I do not find, that he can derive any

support, from that ruling. Learned Judge has observed as follows:

Since the court has to find out whether the offence of illicit transportation of forest produce had been committed either by the employee of the

owner or by someone else without the knowledge or connivance of the owner of the vehicle, a separate enquiry, for the purpose of Section 43 of

the Act is must. In such an enquiry, notice must be given to the owner of the vehicle. An opportunity must be given to him and the State to produce

evidence, oral and documentary and on a consideration of the entire material, the court will have to give a finding as to whether the offence was

committed without the knowledge or connivance of the owner of the vehicle. Passing an order of confiscation without holding such an enquiry and

without giving an opportunity to the owner of the vehicle to satisfy the Court that he had no knowledge of the offence and it was committed without

his connivance, will be contrary to principles of natural justice. A separate enquiry has to be held only when the owner of vehicle had not been an

accused during trial. The scope of the enquiry, however, will be limited. The court cannot permit the parties to recanvass the issue as to whether or

not the vehicle had been used for the commission of the offence.

When a vehicle is used by someone other than the owner, there is no presumption that he is using it without the knowledge of the owner. It is,

therefore, for the owner of the vehicle to prove that the offence was committed without his knowledge or connivance. Knowledge being a mental

state cannot be proved by direct evidence. It has to be inferred from a totality of circumstances. During the trial this aspect of the owner''s

knowledge or connivance would not normally come into the picture since the owner was not an accused. While the courts in a proceeding such as

this, would have to ensure that confiscation of the vehicle of an innocent owner is not ordered, courts should also bestow their anxious

consideration to see, that the persons who really get the benefit of the crimes do not escape these penal provisions relating to confiscation, by the

courts treating these matters lightly. Courts have to bear in mind that the legislation is intended to preserve the forests in the interests of the nation

as a whole. The vastness of the area, the difficulty of detection of forest crimes, the risks involved in the detention, render enforcement of the

legislation difficult. The transport of forest produce would not normally be done by a driver or a cleaner of a vehicle acting by himself. Courts,

therefore, have to consider the circumstances under which the vehicle was found carrying forest timber, the quantity of the forest produce carried,

the statement made by the driver immediately to the Forest Official, the conduct of the owners of the vehicle and so on. In cases where the

circumstances indicate that the offence would not have been committed without the knowledge or connivance of the owner of the vehicle, courts

should never hesitate to order confiscation of the vehicles on irrelevant considerations such as the value of the vehicle, the loss to the owner and so

on. These will be the broad guidelines which courts have to bear in mind, while passing orders u/s 43.

The approach of Padmini Jesudurai, J., almost coincides with the views expressed by me earlier in this order, especially regarding the stage at

which the owner of a vehicle liable to be confiscated enters into the picture and the opportunity to be afforded to him when he is not shown as an

accused in initial stages, on basic material showing his prima facie guilt.

Learned Additional Public Prosecutor also relied upon the judgment of the same learned Judge In re Natarajan (1992 MLJ (Crl.) 494) where

the provisions of Section 14-A of the Tamil Nadu Prohibition Act have been sought to be interpreted. Learned Judge has observed as follows:

Subsequent to the amendment in 1979 and the introduction of Section 14-A and interpreting Section 14(1) and the Proviso in the spirit of the

amendment, we cannot read into the section that unless knowledge of the owner of the vehicle about the commission of the crime is established,

court can never confiscate the vehicle. In the first place, Section 14 as it stands, does not require knowledge to be proved. Further importing into

Section 14, the requirement of knowledge of the owner of the commission of the crime, would be contrary to the spirit of the newly introduced

Section 14-A and the amended Section 14(1) and Proviso. The object of these changes relating to confiscation is that, it is the duty of the owner

of the vehicle to exercise is not used for the commission of the crime. If he fails to satisfy the court that he exercised due care, he is visited with the

penalty of confiscation of the vehicle. The amendment in 1979 has been made in order to prevent violations of these penal provisions by using fast-

moving heavy vehicles for these crimes by punishing, not only those who are actually caught in the process of transporting who will mostly be the

employees of the owner of the vehicles but also penalise the owner of the vehicles by confiscating the vehicle. In a situation when the employees of

the owner of the vehicles have used the vehicle and have committed offences in spite of due care by the owner, it would always be possible for the

owner of the vehicle to establish that despite his due care, the offence had been committed. In the context of Section 14-A and the substituted

Section 14(4) and Proviso, it is not necessary that the knowledge of the owner of the vehicle need be established as a pre-requisite for the court to

confiscate the vehicle. It may be one of the several circumstances for the court to decide as to whether or not, the owner of the vehicle had taken

due care to prevent the commission of the crime. To hold otherwise, would be to defeat the very object of amending the above provisions relating

to confiscation of vehicles.

Learned Judge, as I have done, has felt that the provisions of Section 14-A and Section 14(1) and (2) will have to be read together. If that be

done, then there can be no difficulty in arriving at a conclusion, that this is not the stage at which the owner of the vehicle could be made liable, due

to total lack of evidence of his involvement in this crime, except the attempt made to seek recourse to the provisions of Section 14-A of the Act. In

the case decided by Padmini Jesudurai, J., conspiracy was alleged in the transport, and that had made all the difference.

Learned Additional Public Prosecutor relied upon the decision of the Supreme Court in Prafulla Kumar Swain Vs. Prakash Chandra Misra

and Others, with regard to the deeming clause. Supreme Court has stated thus:

Coming to the deeming clause, that creates a legal fiction, the Court is to ascertain for what purpose the fiction is created. In Justice G.P. Singh

Principles of Statutory Interpretation (fourth edition 1988) 208, it is stated thus:

As was observed by James, LJ: When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done,

the court is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to"", ""When a legal

fiction is created"", stated S.R. Dar, J, ""for what purpose, one is led to ask at once, is it so created?

It is exactly this approach I have made while construing the deeming clause u/s 14-A of the Act.

One other provisions under the Act will also have to be looked into before disposal of these petitions. Section 24-B of the Act refers to

offences by companies. In the event of an offence under the Act having been committed by a company, every person who, at the time the offence

was committed, was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall

be liable to be proceeded against and punished accordingly. This section carries a proviso which enables the person concerned to prove that the

offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of such offence. Sub-clause (2) of

Section 24-B relates to commission of an offence with the consent or connivance of, or attributable to, any neglect on the part of any director,

manager, secretary or other officer etc., who shall be deemed to be guilty. Again u/s 24-B of the Act, initial onus is on the prosecution to establish

that an offence under the Act has been committed by a company. On the material collected during investigation, at this stage, there is nothing to

show, that any offence has been committed by the company under this Act. Hence, merely because the Petitioner in Criminal O.P. No. 12369 of

1992 happens to be the managing partner and the Petitioners in Criminal O.P. No. 11371 of 1992 happen to the partners of the company, they

cannot be proceeded against at this stage, due to total lack of basic material, to array them as accused.

It will be relevant to refer in this context the decision of the Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and

Others, . That was a case where a pending prosecution was quashed by the High Court in exercise of inherent powers, in respect of an offence

committed under the provisions of Food Adulteration Act by a company, its directors and manager. While upholding the quashing of proceedings

by the High Court, in respect of all others except the manager, the Supreme Court stated, that the manager of the company who was directly in

charge of its affairs could not fall in the same category as directors. It could not be reasonably argued that no case was made out against the

manager, because from the very nature of his duties, it was manifest that he must be in the knowledge about the affairs of the sale and manufacture

of the disputed sample. From the very nature of his duties, it can be safely inferred that the manager would undoubtedly be vicariously liable for the

offence, vicarious liability being an incident of an offence under the Act. While considering this vicarious liability vis a vis the directors of the

company, the Supreme Court stated as follows:

The complaint was filed against the company, its directors and the manager. So far as the directors are concerned, there is not even a whisper not

a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the directors

from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, it can be said that no

case against the directors has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly

quashed by the High Court.

I have already stated the facts available against the Petitioners in the instant prosecution, which squarely fall back on the statement of

Thirumalai and Thirumalai alone. If that be so, applying the law laid down by the Supreme Court, I have no hesitation in holding that on the material

available, no case against the Petitioners has been made out ex facie and therefore, inherent powers of this Court will have to be necessarily

exercised to quash the pending prosecution against them.

Merely because the prosecution against the Petitioners stand quashed at this stage, it cannot be taken to mean, that if evidence is available

against them during the course of trial, they will not be liable to be proceeded against. If, in the course of the trial, or at its conclusion, the Court

arrives at a decision, that the vehicle involved in this offence, is liable for confiscation, then the opportunity contemplated to the owner under the

provisions of the Act are to be afforded to him and at that stage the deeming provision contemplated u/s 14-A of the Act will step in. It is at that

stage, on the availability of evidence or otherwise, that the Petitioners can be brought in as accused and not at any earlier stage, as has been done

in this case, without basic material to array them as accused. I have to reiterate, that it will always be possible to prosecute the owner of the vehicle

as well, even from the initial stages, if material collected during investigation permits such a course. Otherwise, the owner can be prosecuted under

the deeming provision only after a decision is arrived at by the Court as contemplated u/s 14(1) and (2) of the Act. The Supreme Court also in the

case referred to above Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, ) has observed as follows:

Section 319 of Code of Criminal Procedure gives ample powers to any Court to take cognizance and add any person not being an accused before

it and try him along with the other accused.

In these circumstances, therefore, if the prosecution can, at any stage, produce evidence and satisfy the Court, that some other accused or those

who have been arrayed as accused against whom proceedings have been quashed, have also committed the offence, the Court can take

cognizance against them, to try them along with the other accused. Of course, as observed by the Supreme Court, this is an extraordinary power

conferred on Court, which could be used only if compelling reasons exist for taking cognizance.

As I have already stated, Section 14-A read with Section 14)(1) and (2) is akin to the provisions of Section 319, Code of Criminal Procedure I

am satisfied that unless a decision is arrived at by the Court u/s 14(1) and (2) of the Act, on total lack of material in the instant case, Petitioners

cannot be arrayed as accused. In that view, I allow both these petitions and quash all further proceedings in C.C. No. 2722 of 1992 on the file of

Judicial Magistrate No. I, Mayiladuthurai, in so far as it relates to the Petitioners alone.