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Judgment
P.D. Dinakaran, J.—Heard both parties.
The above criminal revision case is directed against the order of confiscation dated 23.1.95 made in Criminal Appeal No. 63 of 1994 on the file
of the learned Sessions Judge, Chengai M.G.R. District, Chengalpattu confirming the confiscation dated 27.5.94 made in Camp/A.R.No. 10/94 on
the file of the Superintendent of Police, Prohibition and Enforcement Wing, Chengai M.G.R. Zone, Sabari Nagar - 116.
It is not in dispute that an Autorickshaw bearing registration No.TSJ 4586 belongs to the petitioner herein and the said vehicle was intercepted
and seized on 16.07.93 at 17:00 hours by the Inspector of Police, Prohibition Enforcement Wing, Tambaram and found transporting 35 liters of
illicit arrack in five black colour plastic cans. The driver by name Salam was prosecuted for the said offence and on his pleading guilty, he was
discharged on 17.7.93 u/s 4(1)(a) of the Tamil Nadu Prohibition Act. Thereafter confiscation proceedings were initiated by the Superintendent of
Police, Prohibition Enforcement Wing, Chengai M.G.R. Zone and a show cause notice dated 28.10.94 was given to him, for which the petitioner
submitted his reply dated 04.02.94 and again another reply dated 15.03.94 expressing his innocence and in continuation of which a personal
hearing was given to him on 16.5.94. Finally an order of confiscation dated 27.5.94 was made confiscating the said vehicle to the State of Tamil
Nadu.
The Operative portion of the said order of confiscation reads as follows:
I hereby order the Autorickshaw bearing Regn. No. TSJ 4586 belonging to Thiru. Karthik confiscated to the state of Tamil Nadu Provided an
option is given to Thiru. Karthik to pay an amount of Rs. 18,000/- being the market value of the said Autorickshaw as assessed as per the
certificate issued by Thiru. Arunachalam, M.V.I. Dated 25.04.1994 in the conditions of the vehicle, in lieu of the confiscation, within 10 days from
the date of receipt of this order. If the amount is deposited, the autorickshaw can be released. If failed to deposit the amount, within stipulated
date, this order of confiscation becomes absolute, without prejudice to any other punishment to which the offender is liable under the Tamil Nadu
Prohibition Act 1937.
The said order of confiscation dated 27.05.94 of the Superintendent of Police, Prohibition Enforcement Wing, Chengai M.G.R.Zone,
Chengalpet, was subsequently confirmed or appeal in C.A.No.63/94 by an order dated 23.01.95 by the learned Sessions Judge, Chengai M.G.R.
District, Chengalpet, aggrieved by which the petitioner has preferred the above revision case.
Mr. R. Rajasekaran learned counsel for the petitioner seriously contends that in the absence of any prosecution initiated against the petitioner,
the question of proving his innocence before the court does not arise and therefore the initiation of confiscation proceedings itself is not tenable in
law for want of prosecution against the petitioner which is intended u/s 14-A of the Tamil Nadu Prohibition Act.
Per contra, Mr. N.R. Elango, learned Government Advocate contends that a reading of section 14-A would make it clear that the owner of the
vehicle shall be deemed to be guilty of such offence. Therefore there is a (no) necessity to prosecute the owner of the vehicle in all the cases as a
condition precedent for initiating the confiscation proceedings.
I have given my careful consideration to the submissions of both sides.
In this regard, its relevant to refer section 14(4) and section 14-A , of the Tamil Nadu Prohibition Act. (14) ""Notwithstanding anything contained
in subsections (1) to (3), if the collector or other prohibition officer incharge of the district or any other official authorized by the State Government
in that behalf is satisfied than an offence has been committed against this Act and whether or not a prosecution is justified for such offence. He may
without prejudice to any order of confiscation of any animal, vessel, cart or whether 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.
14-A. 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 shal1 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.
A harmonious reading of the above provisions make it clear that under the scheme of the above Act, the State is empowered to prosecute the
owner of the animals, vessel, cart, or other vehicle and to seize the same without prejudice to the order of confiscation. That is why, the impugned
order of confiscation dated 27.5.94 was passed without prejudice to any other punishment to which offender is liable under the T.N.P. Act.
Therefore neither non-prosecuting the petitioner will not take away the power of State to initiate the confiscation proceedings against the petitioner
nor the initiation of confiscation proceedings will take away the power of state to prosecute the owner of the vehicle or from whom the vehicle was
seized. Hence, I do not agree with the contention of the learned counsel for the petitioner.
However, I find both the confiscation authority as well as the appellate authority have overlooked the second proviso to section 14(4) as
mentioned above. Even though the confiscation authority has satisfied the procedure namely.
i) to seize the animal, vessel, cart or other vehicle.
ii) to confiscate the animal, vessel ,cart or other vehicle and
iii) to prosecute the owner of such animal vessel, cart or other vehicle.
The confiscation authority has not given any option to the petitioner to pay in lieu of confiscation an amount not exceeding the market price of the
vehicle before passing the order of confiscation.
Mr. N.R. Elango, learned Government Advocate contends that the operative portion of the order of confiscation which is referred to above
has to be read as an option intended to comply with the second proviso to section 11(4), as 19 days time was given to the petitioner from the date
of receipt of the order and only thereafter the order of confiscation was made absolute.
I do not agree with the contention of the learned Government Advocate. It is settled law that when the statute requires that the authorities has
to follow the procedure the manner prescribed under the Statue namely, to give an option to the owner of the vehicle to pay an amount not
exceeding the market price of the vehicle as provided under the second proviso to section 14(4) the authorities are expected to follow the
procedure prescribed under the Statute without taking any exception to the procedure prescribed under the Statue, Therefore, an option sought to
be given to the petitioner under the second proviso to section 11(4) cannot be merged with the order of confiscation itself as being suggested by
the learned Government Advocate, in the instant case. In the absence of any independent option to the petitioner before taking a decision to
confiscate the vehicle, the impugned order of confiscation shall not satisfy the second proviso to section 14(4) of the T.N.P. Act.
In my option, which the second proviso contemplates that the owner or the person from whom such vehicle is seized, shall be given an option
to pay an amount not exceeding the market price of such vehicle in lieu of its confiscation, such option should be given effect to by an independent
proceedings without merging that option with a decision of confiscation itself. Otherwise, a merger of giving an option alongwith the decision of
confiscation would render the very option unworkable and therefore unreasonable and an arbitrary exercise of power for the following reasons:
i) While giving an option as contemplated under second proviso to section 14(4) of the Act the confiscating authority is expected to mention:
(a) the market price of the vehicle as fixed for the purpose of such option and
(b) to mention an amount not exceeding such market price of the vehicle which is required to be paid by the owner or the person from whom the
vehicle was seized. Therefore, by mentioning the said two amounts, namely, the market price as well as the amount required to be paid, the owner
or the person from whom the vehicle was seized, is provided with another opportunity either to accept or to object the market price if it is
arbitrarily fixed and or to make a further request to reduce the amount required to be paid by him. Therefore, an independent option has to be
given to the owner or the person from whom the vehicle was seized, before taking a decision of confiscation.
ii) Secondly, u/s 14(5), a right to appeal is provided to the owner or the person from whom the vehicle is seized to challenge the order of
confiscation. By reading the second proviso to section 14(4) harmoniously with section 14(5) of the Act wherein an appeal is provided as
mentioned above, it is apparent that in view of the merger of the option to pay an amount not exceeding the market price of the vehicle seized and
to be confiscated with the decision of confiscation itself, as proposed by the proceedings dated 27.5.94 in the instant case, an implied right
provided under the second proviso objection the market value fixed and or the amount required to be paid while exercising the option has been
taken away arbitrarily.
In the instant case, since the option contemplated under the second proviso to section 14(4) had been merged with the decision of confiscation
itself, as claimed by the learned Government Advocate, the impugned order of confiscation is unreasonable, arbitrary and illegal for the reasons
mentioned above.
The non-compliance of such procedure contemplated under the second proviso to section 14(4) vitiates the order of confiscation dated
27.5.95 which was confirmed in the order dated 23.01.95 in C.A. No. 63 of 1994 on the file of the learned sessions Judge, Chengai M.G.R.
District, Chengalpet. Therefore the same is set aside and consequently the matter is remitted back to the confiscation authority namely, the
superintendent of police prohibition enforcement wing, Chengai M.G.R. Zone, Sabari Nagar - 116 to give an option to the petitioner to pay an
amount not exceeding the market price of the impugned vehicle, after hearing the petitioner and thereafter to pass an appropriate order within 2
months from the date of receipt of this order.
In the result, revision is allowed with a direction stated above.