1. The petitioner entered into a hire-purchase agreement with the accused, who used a car for transporting large quantities of contraband opium and ganja. The Magistrate confiscated not only the drugs found in the car but the car itself. The petitioner objected; but his objections were overruled with the remark that it was open to Messrs. Chakrapani Chetty and Sons' (Petitioner) to seek his remedy under the hire-purchase agreement in a Civil Court.
2. I doubt very much whether Messrs. Chakrapani Chetty and Sons would have any remedy against the Government in a Civil Court under their hire-purchase agreement. The Magistrate has a discretion under Section 11 of the Opium Act to confiscate any conveyance used in carrying contraband opium; and I do not think that the exercise of that discretion could be called in question in a Civil Court. That could be done only by the Courts which have appellate or revisionary jurisdiction over the Magistrate. If the petitioner's case is true that he had received only one instalment towards the purchase of the car and had no reason at all to suspect that his car was being used for transporting opium it would be, I think, very hard on the petitioner to have his car confiscated. In similar cases it has been held 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 such a purpose. That seems to be a very fair test for the Magistrate to apply when he has to consider whether or not he should order the confiscation of the vehicle. As the Magistrate has not considered this, I think his order should be set aside.
3. The petition is therefore allowed, the order of confiscation of the petitioner's car set aside, and the Magistrate ordered to consider afresh the question whether the car should be confiscated. He should permit evidence to be let in by the prosecution and by the petitioner.