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The Circle Inspector (Excise) Neyyattinkara and ors. Vs. K. Mukundan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberW.A. No. 213 of 1975
Judge
Reported inAIR1976Ker120
ActsKerala Abkari Act, 1077ME - Sections 34, 55, 56, 57, 58, 63 and 67
AppellantThe Circle Inspector (Excise) Neyyattinkara and ors.
RespondentK. Mukundan
Appellant AdvocateGovt. Pleader
Respondent Advocate S.A. Nagendran and; N.N.D. Pillai, Advs.
DispositionAppeal dismissed
Excerpt:
.....act, 1077me - whether akbari act empowers authority to order confiscation of thing seized as liable to confiscation which did not belong to licensee, permit holder or person who committed any offence referred to in sections 55, 56, 57, 58, or 63 - officer empowered under act may confiscate things if offenders confessed guilt and can proceed under section 66 before magistrate if he may not be able to confiscate things used for purpose of committing offence. - - the word article is wide enough to take in a vehicle as well. ' the power conferred on the commissioner under the third paragraph of section 66 has to be exercised in exceptional circumstances, such as that 'either the offender is not known or cannot be found, or when anything liable to confiscation under this act and..........55, 56, 57, 58 or 63 also empowers the authority to order confiscation of a thing seized as liable to confiscation which thing did not belong to the licensee, permit holder or the person who committed any of the offences referred to in the section. the learned judge in the judgment under appeal has taken the view that there is no such power.2. we are dealing with a very old statute and we have to bear in mind that the wording of the sections of the statute are not free from ambiguity. we have therefore to interpret these sections bearing in mind the broader aspect of the general principles of our jurisprudence. the sections with which we are concerned are section 34 which provides for the seizure of certain articles, section 65 which describes the articles that are liable to.....
Judgment:

Govindan Nair, C.J.

1. This appeal raises an important question regarding, mainly, the interpretation of Section 67 of the Abkari Act, 1077. Shortly stated the question is whether the Abkari Act which specifically empowers the authority concerned to accept a sum of money not exceeding two thousand rupees in lieu of cancellation or suspension of a licence or permit under Clauses (a) and (b) of Section 26, or accept compensation for the offences under Sections 55, 56, 57, 58 or 63 also empowers the authority to order confiscation of a thing seized as liable to confiscation which thing did not belong to the licensee, permit holder or the person who committed any of the offences referred to in the section. The learned Judge in the judgment under appeal has taken the view that there is no such power.

2. We are dealing with a very old statute and we have to bear in mind that the wording of the sections of the statute are not free from ambiguity. We have therefore to interpret these sections bearing in mind the broader aspect of the general principles of our jurisprudence. The sections with which we are concerned are Section 34 which provides for the seizure of certain articles, Section 65 which describes the articles that are liable to confiscation under the Abkari Act, Section 66 which postulates proceedings being taken for the purpose of prosecution before a Magistrate which incidentally incorporates certain powers in the Commissioner in relation to confiscation under certain specified circumstances and Section 67, the section with which we are primarily concerned in this appeal. We shall extract all these sections one after the other in toto.

'34. Offenders may be arrested, and contraband liquor and articles seized without warrant.--Any officer of the Abkari, Salt, Police, Land Revenue or Customs Departments, and any other person duly empowered may arrest without warrant in any public thoroughfare or open place other than a dwelling house any person found committing an offence punishable under Section 15C or Section 55 or Section 57 or Section 58 of this Act and in any such thoroughfare or place may seize and detain any liquor, drug or other article which he has reason to believe to be liable to confiscation under this Act or any other such law, and may search any person, vessel, vehicle, animal, package, receptacle or covering, upon whom or in or upon which he may have reasonable cause to suspect any such liquor, drug or other such article to be, or to be concealed :

Provided that, if the officer or person making the arrest under this section be not empowered under Section 5-A to admit to bail, the person arrested shall be forthwith forwarded to an officer so empowered, if there be such an officer within a distance of five miles from the place where such arrest took place.

And it shall be the duty of such officer empowered as aforesaid to admit such person to bail, if sufficient bail be tendered for his appearance before an Abkari officer having jurisdiction to enquire into the case.

65. What things liable to confiscation. -- In any case in which an offence has been committed under this Act, the liquor, drug, materials, still, utensil, implement or apparatus in respect or by means of which an offence has been committed shall be liable to confiscation.

Any liquor or intoxicating drug lawfully imported, exported, transported, manufactured, had in possession or sold or toddy lawfully drawn or tapped along with, or in addition to any liquor, intoxicating drug or toddy, liable to confiscation under this section, andthe receptacles, packages and coverings in which any such liquor, intoxicating drug, materials, still, utensil, implement or apparatus as aforesaid is or are found, and the other contents, if any, of the receptacles or packages in whichthe same is or are found, and the animals, carts, vessels or other conveyances used in carrying the same,shall likewise be liable to confiscation,'

'66. Confiscation how ordered.--When the offender is convicted or when the person charged with an offence under this Act is acquitted, but the Magistrate decides that anything is liable to confiscation such confiscation may be ordered by the Magistrate.

Whenever confiscation is authorised by this Act, the Magistrate ordering it may give the owner of the thing liable to be confiscated an option to pay, in lieu of confiscation, such fine as the officer thinks fit.

When an offence under 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, the case shall be inquired into and determined by the Commissioner, or by any other officer authorised by the Government in that behalf, who, may order such confiscation.

Provided that no such order shall be made until the expiration of one month from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims.

Provided further that if the thing in question is liable to speedy and natural decay, or if the Commissioner or any other officer authorised by the Government in that behalf is of opinion that the sale would be for the benefit of its owner, he may at any time direct it to be sold, and the provisions of this section shall, as early as may be practicable, apply to the net proceeds of such sale.

67. Power to compound offences. --Any Abkari Officer specially empowered in that behalf may accept from any person whose license or permit is liable to be cancelled or suspended under Clauses (a) and (b) of Section 26 or who is reasonably suspected of having committed an, offence under Sections 55, 56, 57, 58 or 63, a sum of money not exceeding two thousand rupees in lieu of such cancelment or suspension or by way of compensation for the offence which may have been committed, as the case may be and, in all cases whatsoever inwhich any property has been seized as liable to confiscation under this Act such property may, at the option of such officer, be confiscated or released on payment of the value thereof as estimated by such officer.

On the payment of such sum of money or such value, or both, as the case may be, to such officer, the accused person, if in custody, shall be discharged, the properties seized shall be confiscated or released as the case may be and no further proceedings shall be taken against such person or against such property if it is released.'

3. Arguments at one time turned on the question whether a vehicle that has been utilised for the purpose of commission of an offence is liable to be seized under Section 34 of the Abkari Act. It was pointed out that the latter part of the section specifically refers to vehicles when it speaks of the power to search but that the earlier part of the section significantly has omitted any reference to vehicles but has instead used the expression article. It was therefore urged that 'article' will not take within, its ambit a 'vehicle.' We are not impressed by this argument. The word article is wide enough to take in a vehicle as well. The section cannot be interpreted in a manner which would defeat the object and purpose of the Act. A vehicle which has been used for the commission of an offence is certainly liable to be confiscated. So Section 34 which deals with the power of seizure must normally be taken to provide for the seizure of that vehicle also. There is therefore no justification for giving a limited meaning to the word 'article' and exclude from its ambit vehicle. We reject the submission.

4. In the case before us It was alleged that the liquor contained in four tins was transported without the required licence or permit in an Ambassador Car bearing registration No. KRT. 81. The driver and two other passengers in the car admitted that they had committed the offence falling under Section 58 of the Act. That section is in these terms:

'58. For possession of illicit liquor.--Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid thereforshall on conviction before a Magistrate, be punished with fine which may extend to three thousand rupees, or with imprisonment for a term which may extend to six months, or with both.' They expressed willingness to have the offence compounded and accordingly a compensation of Rs. 250/- was collected from each of the occupants of the car. Thereafter Ext. R.1 order, produced along with the counter affidavit was passed by the Excise Commissioner confiscating the said vehicle bearing registration No. KRT 81. Chandrasekhara Menon J. quashed this order and directed the release of the vehicle, The teamed Judge however added: 'Nothing said here will prevent the authorities from proceeding against the petitioner for offences which might have been committed under the Abkari Act and in dealing with the vehicle in such manner as prescribed by law, dealing with the offences.'

5. On behalf of the appellants, the Circle Inspector (Excise), Neyyattinkara, the Board of Revenue (Excise) and the State of Kerala, the learned Government Pleader submitted that the view taken by the learned Judge requires reconsideration. According to him a plain reading of the section leaves no doubt that the officer empowered in that tee-half for the purposes of Section 67 has also been empowered to pass an order of confiscation of a thing seized as liable to confiscation under the Act. Section 65 of the Act which we have read in the second paragraph of the judgment specifically refers to animals, carts, vessels or other conveyances used in carrying the liquor or drug which is liable to confiscation. There was no dispute in the case that the vehicle KRT. 81 was used for carrying liquor and there is also no doubt in view of the admission of the guilt by the occupants of the ear that the offence under Section 58 of the Act had been committed. So ran the argument and it was therefore submitted that the order Ext. R. 1 is not liable to be set aside.

6. We think that the scope and ambit of Section 67 will have to be understood by reading Sections 65, 66 and 67 together and by trying to understand the scheme and the object to be achieved by these provisions. In statutes of this type, as is evident from the pro-visions of the Sea Customs Act, 1878, the Customs Act, 1962 and other enactmentscontaining similar provisions for the confiscation of a thing used for committing offences punishable under these enactments there are stringent provisions. Section 115(2) of the Customs Act, 1962 has toned down the rigour of the power to confiscate by enabling the owner or other person interested in the vehicle which had been seized as liable to confiscation to establish that the vehicle 'was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules.' Section 67 does not contain any such safeguard. Normally the power of confiscation has to be ordered by the Magistrate is clear from the first paragraph of Section 66, whether the offender is convicted or acquitted. This was followed by another paragraph in the section which enjoins that the Magistrate 'may give the owner of the thing liable to be confiscated an option to pay, in lieu of confiscation, such fine as the officer thinks fit.' The power conferred on the Commissioner under the third paragraph of Section 66 has to be exercised in exceptional circumstances, such as that 'either 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.' Apart from these powers the only power for confiscation envisaged by the Act is that visualised by. Section 67 of the Abkari Act. When a Magistrate acts the normal judicial procedure will be followed and the Code of Criminal Procedure applied. This ensures a safeguard which is essential particularly in matters where penalties are sought to be imposed. There can be little doubt that Section 66 imposes a drastic penalty in that any vehicle used for the purpose of carrying liquor even without the knowledge of the owner can be confiscated. When a Magistrate acts under this section the judicial approach and the exercise of a judicial discretion are enough safeguards when it is combined with a judicial process which necessarily spells a judicial procedure. When the Commissioner acts, the section itself provides that he shall hear the persons, if any, claiming any right thereto, and further that he should wait for one month from the date of seizing the things intended to be confiscated andthe evidence produced by a claimant must also be considered by him. Section 67 significantly does not provide for any such safeguards for hearing the person claiming to be the owner of a vehicle seized or claiming to have an interest in the vehicle seized. This cannot be understood as deliberately providing two different procedures for confiscation, the one the well known judicial procedure and the other the summary and even arbitrary procedure. One has therefore necessarily to find out another reason for providing two different procedures. The reason appears to us to be evident. The basis of confiscation under Section 67 of the Abkari Act as we read it is a confession of guilt. This being so the confiscation which follows such confession must be of a thing which belonged to the person who confessed. It will be strange to read the section as providing for confiscation of things belonging to a third person. We have therefore necessarily to give a limited meaning to the general words used in Section 67 which read by itself and without bearing in mind the principles that should be followed before penalising a person and without referring to the ample provisions made in the statute under Section 66 for confiscation would appear to give an unreasonable power. We think we must understand the section as has been done by the learned Judge in the judgment under appeal in a much more limited sense. In this connection we must emphasise that if an officer who is empowered to act under Section 67 feels that by compounding the offences he may not be able to confiscate the thing used for the purpose of committing an offence, it would be open to him to refuse to accept the offer for compounding and proceed under Section 66 before a Magistrate. If he does not proceed under Section 66, we think he will be able only to confiscate things belonging to the offenders who have confessed guilt. This we think would be the reasonable view to take. As we said the statute is a very old one, nearly 75 years old and in the Customs Act, 1962 as we indicated, safeguards have been incorporated in such cases of confiscation.

7. Arguments then turned on the question whether there is any means by which action could be taken for confiscation after the offences had been compounded under Section 67. Is it open to the authorities to approach the Magistrate under Section 66 merely for the purpose of confiscation without the Magistrate being asked to decide whether any person should be convicted for the offence committed under the Act? Sri. M. N. Sukumaran Nair counsel for the respondents argued that the wording of Section 66 will not warrant any such procedure being resorted to. According to him, the second paragraph of Section 66 is an appendix to the first paragraph and only when a Magistrate opting under the first paragraph would be enabled to pass an order of confiscation under the second paragraph of the section. We are not called upon to resolve this controversy and we express no opinion one way or the other. All that we wish to say is that if the authorities decide to approach the Magistrate under Section 66 they should do so within a month from today that is on or before the 5th of August, 1975. If no such approach is made the vehicle that has been seized and ordered by Ext. R. 1 to' be confiscated will be released to the respondents forthwith. If any steps are taken before the Magistrate it will be open to the respondents to approach the Magistrate for appropriate orders relating to the release of the vehicle and it will be open to the Magistrate to pass such orders as he deems fit.

8. In the light of the above, we dismiss this appeal subject to what has been stated in paragraph 7 and also direct the parties to bear their respective costs.


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