1. One Babasab was coining on a bicycle when he was stopped by the police near the Municipal Toll Gate at Chikmagalur and was found to be carrying six brandy bottles in a cloth bag tied to the handle bar. He was thereupon prosecuted for an offence under Section 4-1 (a), Clauses (2) and (3) of the Mysore Prohibition Act XXXVII of 1948 before the Munsiff-Magistrate, Chickmagalur. He was convicted on a plea of guilty and ordered to pay a fine of Rs. 30/-. The Munsiff Magistrate further ordered that ,the bottles of brandy and the cycle which had been marked as M.O. 1 should be confiscated to Government. This order was passed on 6-11-1950. On the same day the Petitioner one C.N. Hassan Khan presented in Court an application in which he stated that the cycle M.O. 1 belonged to him alone, that he had merely entrusted it to the accused to be delivered at his house, that in the evening when he returned home he learnt on enquiry that the accused was being prosecuted and that the bicycle had been produced before the Court and that the bicycle might be returned to him. That application bears a note that it was presented in Court, with the learned Magistrate's initials with the date 6-11-50. But curiously no reference has been made to it either in the order sheet or in the judgment of the Magistrate which was pronounced the same day. The Petitioner thereupon preferred an appeal under Section 520 of the Code of Criminal Procedure, which however has been described and numbered as Criminal Bevision Petition No. 12 of 1950-51, to the District Magistrate, Chikmagalur. He dismissed the appeal holding that the bicycle had been rightly confiscated as authorised under Section 14 of the Mysore Prohibition Act and that he failed to see any point at all in the contention to the contrary. In support of his order he relied on a case in '7 Mys L Jour 99, where it has been held that a person who was not a party to a criminal case before the trial Magistrate cannot be heard to complain against an order relating to disposal of property concerned in that case and also an '16 Mys L Jour 6 where it has been laid down that a Court of Appeal or Revision should not lightly interfere with an order passed by a subordinate Court in the matter of disposal of such property. He also observed that such an order confiscating the vehicle which was used for transporting liquor illicitly would be a deterrent and was desirable in view of the rising number of prohibition offences by 'curtailing the facilities for movement of liquor.' This revision petition is preferred against that order of the District Magistrate.
2. It is difficult to support the order of the learned District Magistrate or accept as proper or correct the rather wide and drastic remedy of confiscation of anybody's vehicle under all circumstances and hope thereby ,that the offences against prohibition law would be reduced. One can easily realize the enormous hardship, injustice and loss which may be visited on innocent persons if that reasoning were to be adopted. A car or a carriage which is borrowed casually from a friend, or hired from a hirer of vehicles, for a perfectly legitimate purpose may be used for transporting a bottle of whisky or brandy clandestinely and if seized in that process should entail the loss of the car or the vehicle to the unfortunate owner who may be thoroughly innocent of the use to which it was subsequently put. The motor driver of a most respectable citizen who would not dream of touching liquor may be tempted to try to smuggle on his own account or may be induced or bribed to smuggle a few bottles of brandy or whisky for some friend of his own in the luggage compartment, when the owner may be even absent from the town and yet the car can and ought to be forfeited. This uncertainty and hardship are all the greater in a place like Mysore where there are adjoining dry and wet areas and where, while it would be perfectly legitimate for a vehicle to be used in transporting liquor in any quantity in a particular area, it would be employing it in an illegal venture quite a short distance away or if it travelled beyond a line. In some places in the rest of the Indian Union where if one of a class of persons like the Military carries in his car some liquor for his own consumption the car would be perfectly safe while if his civilian driver carried a bottle for his own benefit in the same car, his master's car could, according to the learned District Magistrate's reasoning, be very properly confiscated without any thing more being found against the master. I, however, think that is not what Section 14 contemplates nor is it supported by any authority. Section 14 merely declares what things are liable to confiscation and no doubt Includes the animals, vessels carts or other vehicles used to hold or carry the same. There is a very similar section. -- Section 11 -- in the Opium Act which also lays down that the animals and conveyances used in carrying contraband opium are liable to confiscation. These sections do not however say that confiscation is Imperative in all cases. How and when such confiscation can be ordered is provided under Sections 15 and 16 of the Prohibition Act. Under Section 15 when the offender is convicted or sometimes even when the person charged with an offence against the Act Is acquitted, the Court may order such confiscation.
3. Mr. Ramanathan, learned Counsel for the Petitioner, has relied on some cases which may bo referred to. The words 'shall be liable to pay' have been interpreted in 'Omrita Nath Mitter v. Administrator-General of Bengal', 25 Cal 54. In that case it was contended that by virtue of S. 35 of the Administrator-General's Act which provided that if any suit be brought by a creditor 'against the Administrator-General, the plaintiff 'shall be liable1 to pay the costs of the suit unless he had registered his claim with him a month earlier the plaintiff could never be relieved from such payment. It was held that those words did not impose on the creditor and absolute obligation to pay, but the Court had still the discretion to relieve him of the obligation if the circumstances of the case required it. It was observed that what the section said merely amounted to saying that the creditor is under certain circumstances liable to pay the costs of the suit and not that he shall nay the costs. In Manghan. Das v. Rahim Bux', AIR (8) 1921 Pat 232 it has been held that an order confiscating a conveyance under Section 11 of the Opium Act should not be passed without giving an opportunity to the alleged owner to prove that he' did not know and had no reason to believe that, opium was transported in the conveyance in question In G. N. Chakrapany Chettiar & Sons, In re, AIR (29) 1942 Mad 724 (2) it has been held similarly that a conveyance ought not to be confiscated unless the owner knew or had reason to believe that his vehicle was likely to be used for transporting opium. In that case the owner had left the car under a hire purchase agreement with the accused who used it for transporting large quantities of contraband opium and ganja. In 'Parma Singh v. Emepror', 12 Ori L Jour 103 : 9 IC 587 : 15 Cal W N 29G' an order had been made under Section 11 of the Opium Act confiscating a boat in which some opium had been found. The boat had been hired out by the owner for plying on the river. The lessee was arrested; and while convicting the accused under Section 5 of the Opium Act for being in possession of some opium, the Magistrate directed the confiscation of the boat without even hearing the owner, as in the present case. In revision the High Court set aside the order of confiscation on the ground that the same had been made without giving the owner of the boat an opportunity of being heard. It was pointed out in that case that every receptacle or carriage in which a small quantity of opium may be found was not liable to confiscation unless the owner of the conveyance was shown to be using it for the purpose of transporting opium.
4. The case in '7 Mys L Jour 99' on which reliance is placed for the State could easily be distinguished. In that case there was no application by a person other than the accused claiming the articles as his own. He filed a revision petition directly to the High Court and it was rightly held that as he was not a party in the criminal case in the trial Court he could not move the High Court in revision. He was, as pointed out by Ramachandra Rao, J :
'a person who was not present before the trial Magistrate and of whose title the trial Magistrate had not even notice.'
The word 'party' in the context of that case does not mean the Government or the complainant and the accused, but would include persons like the petitioner who intervene and seek to have their own claims heard and even witnesses who may be summoned to produce articles during the trial. The Court is bound in those cases to pass orders on their claims to any property produced before it under Sections 517, 518 and 519 of the Code of Criminal Procedure (whose ambit is considerably enlarged by the amendment in 1927) and these orders would be subject to correction by a higher Court, in appeal or revision under Section 529. (5) In the light of the above discussion the order of confiscation cannot be supported. The accused has not claimed the bicycle as his own and neither in the charge nor in the evidence of the F.w.s. is it even suggested that the bicycle M.O. 1, belongs to him. The Petitioner has produced with his appeal memo before the District Magistrate a sale note dated 27-9-46 under which he claims to have purchased the bicycle as well as receipts for having paid taxes for the same for the years 48-49, 49-50 and 50-51. No one else has claimed the bicycle and I do not think that any further enquiry is called for with regard to its ownership.
6. In the result this revision petition is allowed,the orders of the Courts below are set aside andthe bicycle M. O. 1 will be delivered to the Petitioner.
7. Revision allowed.