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D. Shanthalakshmi and ors. Vs. State of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.P. Nos. 197 etc., of 1979 etc.
Judge
Reported inAIR1983Mad232; (1983)IIMLJ7
ActsMadras Prohibition Act, 1937 - Sections 14(1), 14(2) and 14(4); Constitution of India - Articles 14, 14-A, 19, 19(1), 21 and 300-A
AppellantD. Shanthalakshmi and ors.
RespondentState of Tamil Nadu and ors.
Cases ReferredNarayanaswami Naidu v. Inspector of Police
Excerpt:
constitution - ultra vires - section 14 of madras prohibition act, 1937 and articles 14, 19, 21 and 300a of constitution of india - petition contending that amended provisions in section 14 ultra vires constitution - no innocent person should be vexed upon with penalty - test of reasonable restrictions to be applied - restrictions imposed should not be arbitrary or of excessive nature so as to go beyond requirements of interest of general public - constitutional right of individual to hold property should not be affected - no deprivation of property and value of property should be there - section 14 (1) and 14 (2) constitute rule of evidence just shifting burden upon accused person and nothing more - held, section 14 (1) and 14 (2) did not violate provisions of fundamental rights -.....gokulakrishnan, offg.c.j.1. by tamil nadu act 9 of 1979, the state government have introduced amendment to certain of the provisions of the madras prohibition act (act x of 1937). in these writ petitions, which form a batch the vires of the amended provisions in ss. 14 (1, 14 (2), 14 (4) and 14 - a of the act are ultra vires the constitution of india.2. for a better understanding of the case and the facts, we give below the impugned sections both before and after the amendment :- as it stood before amendment. s. 14 (1) when the offender is convicted or when the person charged with an offence against this act is acquitted, but the court decided that anything is liable to confiscation, such confiscation may be ordered by the court. s. 14 (2). where during the trial of a case for an offence.....
Judgment:

Gokulakrishnan, Offg.C.J.

1. By Tamil Nadu Act 9 of 1979, the State Government have introduced amendment to certain of the provisions of the Madras Prohibition Act (Act X of 1937). In these writ petitions, which form a batch the vires of the amended provisions in Ss. 14 (1, 14 (2), 14 (4) and 14 - A of the Act are ultra vires the Constitution of India.

2. For a better understanding of the case and the facts, we give below the impugned sections both before and after the amendment :-

As it stood before amendment.

S. 14 (1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the Court decided that anything is liable to confiscation, such confiscation may be ordered by the Court.

S. 14 (2). Where during the trial of a case for an offence against this Act, the Court decides that anything is liable to confiscation under sub-section (1), the court may, after hearing the person, if any, claiming any right thereto and the evidence, if any, which he produces in support of his claim, order the confiscation :

Provided that no animal, vessel, cart or other vehicle shall be confiscated if the owner thereto satisfies the court that he had exercised due care in preventing the commission of the offence. S. 14 (3). When an offence against this Act has been committed but the offender is not known or cannot be found, or when anything is 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 Collector or other Prohibition Officer in charge of the district or by any other officer authorised by the State Government in that behalf who may order such confiscation :

Provided that no such order shall be made until the expiration of 15 days 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. S. 14 (1). When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the court decides that anything is liable to confiscation, such confiscation shall be ordered by the court.

S. 14 (2). Where during the trial of a case for an offence against this Act, the Court decides that anything is liable to confiscation, the court shall order the confiscation.

Provided that no animal vessel, cart or other vehicle shall be confiscated under sub-sec. (1) or sub-section 92) if the court after hearing the owner of such animal, vessel, cart or other vehicle and any person claiming any right thereto, is satisfied that the owner and such person had exercised due care in the prevention of the commission of an offence.

S. 14 (3). When an offence against this Act has been committed but the offender is not known or cannot be found or when anything is liable to confiscation under this ACt and not in the possession of any person cannot be satisfactorily accounted for, the case shall be enquired into and determined by the Collector or other Prohibition Office in charge of the district or by any other officer authorised by the State Government in that behalf, who shall order such confiscation :

Provided that no such order shall be made until the expiration of 15 days 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. S. 14 (4) (newly introduced). Notwithstanding anything contained in sub-secs. (1) to (3), the Collector or other Prohibition Officer in charge of the district or any other officer authorised by the State Government in that behalf, shall detain the animal vessel, cart or other vehicle unsaid in the commission of an offence against this Act till the case is disposed of, by the Court and notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) no interim order regarding the disposal of such property shall be passed by the court till the case is disposed of.

S. 14 - A (Newly introduced). Owner of animal, vessel, cart or other vehicle deemed to be guilty in certain cases - 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 allegations in all these cases are almost identical. It is alleged that the vehicle in which illicit arrach was transported has been detained by the officer concerned and the court refused to release the vehicle by virtue of Section 14 (4) of the ACt. Since the averments in the affidavits filed in support of the writ petitions have been touched in detail and argued by the learned counsel appearing for the petitioners, we feel it is better to mention the arguments themselves, instead of narrating the averments in the affidavits.

3. Thiru P.Chidambaram, learned counsel who appears for the petitioners in S.P.Nos. 565, 1380, 2410, 2429, 3207,3565, 3755, 3835, 4416, 4680, 4668, 5086, 6208, 6460, 6883 and 7065 of 1980. Thiru Alagumalai, learned counsel who appears for the petitioners in some of the other writ petitions. Thiru Subramanian, learned counsel appearing for the petitioners in some petitions and Thiru Kalyanasundaram, learned counsel who appears for the petitioners in yet other writ petitions, have made their submissions. These arguments were adopted by Thiru Kumar Rajaratnam, Thiru Rajavadivelu, Thiru Satyendran, Thiru V.Balakrishnan, Thiru K.R.Govindarajan, Thiru N.Sivam, Thiru Kanagaraj, Thiru John Archur, Thiru N.Veeramani, Thiru Godwin, Thiru Manimaran, Thiru Suryaprakasam, Thiru C.Krishnan, Thiru Bhavanandham, Thiru Venkatachalapathi, Thiru R.N.Krishna Raju and Thiru V.Rajajagadeesan, learned counsel appearing for sets of petitioners in this batch of petitions. In view of the above position, it is enough we refer to the arguments of Thiru P.Chidambaram, Thiru Alagumalai, Thiru Subramaniam and Thiru Kalyanasundaram.

4. Thiru P.Chidambaram learned counseled, submitted that S. 14(4) of the Act, newly introduced, is an under reasonable restriction on the fundamental rights guaranteed under Art 19(1)(g) of the Constitution of India. Under Section 14 (4), until the case is disposed of by the court no interim order can be made regarding the disposal of the vehicle detained. The case may take several weeks or months. It may end in an acquittal and the State may file an appeal, which would mean that the case is not yet disposed of. The proceedings may drag on for a year or more. During this period, the owner of the vehicle is deprived of the possession and use of the vehicle and to that extent, there is restriction on his right to carry on his trade or business. The temporary deprivation of the possession and use of the property is a penalty visited upon an innocent owner of the vehicle who has no knowledge of the offence and against whom no charge or allegation is made. The temporary deprivation of the property of an individual is unjust and it is a fundamental principle of the Penal Law that no innocent person should be visited upon with a penalty. Therefore, according to Thiru P.Chidambaram, S. 14 (4) of the Act is an unreasonable restriction and is violative of Art. 19(1)(g) of the Constitution.

5. Thiru P.Chidambaram further contended that due to such detention, the owner of the vehicle would suffer loss during the interim period, and in as much as no compensation has been provided for such loss, even in cases where acquittal has been made, or in such cases where the owner has proved that he has exercised due care in the prevention of offence it has to be constructed that S. 14 (4) imposes an unreasonable restriction and is violative of Art. 19(1)(g) of the Constitution, Automatically, according to Thiru P.Chidambaram, it follows that such a provision has to be construed as one made without the authority o the law and as such is in violation of Art, 300-A of the Constitution.

6. It was further submitted by Thiru.P.Chidambaram that S.14 (4) is violative of Art. 14 of the Constitution, since it confers an arbitrary power upon the Collector or other Prohibition Officer in charge of the district or any other officer authorised by the State Government in that behalf, to detain any vehicle on the ground that it has been used in the commission of an offence. As the provision now stands, any police officer may detain any vehicle and allege that it has been used in the commission of an offence against the Act. This power is not controlled by the existence of circumstances before being exercised and such power is capable of being abused and applied in a discriminatory manner. Therefore, according to Thiru P.Chidambaram. S. 14 (4) is violative of Art 14 of the Constitution also.

7. As regards S. 14-A of the Act Thiru P.Chidambaram argued that it is violative of ARt. 21 of the Constitution. The guarantee to life and personal liberty in Art, 21 , according to the learned counsel, includes the reputation of a person and the right to be declared innocent and not guilty of an offence, about which he has no knowledge, and with which he has no connection. there can be no fiction about guilt. Guyilt is either established or not established., based upon evidence and law. S. 14-A declares that, under certain circumstances, the owner shall be deemed to be guilty of an offence. Such expression 'shall be deemed to be guilty' is very different from expression 'shall be presumed to b guilty' shall be deemed' is a legal fiction, employed in many statues and it has been held that the legal fiction would have to be given full play and scope. The result is that, under certain circumstances, an innocent owner of a vehicle who has no knowledge of the offence, and who has no connection with the offence and against whom no charge is framed under the law, and who is not an accused in any trial, will be 'deemed to be guilty of an offence'. Such a finding of guilt affects reputation of a person and is violative of Art. 21 of the Constitution.

8. Thiru P.Chidambaram further submitted that if the owner has no knowledge of the commission of the alleged offence, there is no question of exercising due care in the prevention of the commission of such offence. Since lack of knowledge on the part of the owner of the vehicle is not made a ground for exonerating the owner of the vehicle, S.14-A is violative of Article 21 of the Constitution. The learned counsel further submitted that it is against all canons of criminal jurisprudence to confiscate the vehicle of the owner owner who is not an accused before the court at all. Thus, S. 14-A is a gross violation of Art 21 of Constitution.

9. Section 14-A, according to Thiru. P.Chidambaram, is a rule of evidence and it is against all principles of the Evidence Act to 'deem' a person guilty without he being an accused in the case. 'Deeming ' a person guilty is something different from presuming him to be guilty. The first is a substantive rule, while the second is a rule of evidence. Since S. 14-A States that he will be deeded to be guilty, it is violative of Art. 21 of the Constitution.

10. Further, according to Thiru. P.Chidambaram, S. 14-A imposes unreasonable restriction and it is not in the interests of the public. Therefore it is not saved by Art. 19(5) or 19(6) of the Constitution.

11. Thiru P.Chidambaram, learned counsel, further submitted that Ss.14 (1) and 14 (2) are violative of Arts. 14, 19(1)(g) and 300-A of the Constitution of India. It was submitted by the learned counsel that S. 14 (1) empowers the Court to decide whether anything is liable to confiscation even in a case where a person charged with an offence against the Act is acquitted. It is strange, according to the learned counsel, that when there is no offence proved against a person and he is acquitted, his things can be confiscated. S. 14 (1) which provides for such a course is violative of every principle of criminal law. It confers an arbitrary power on the court and confiscation is to be ordered by the court even when the accused is acquited and no offence is committed. Therefore, the section is violative of Arts 19(1)(g) and 300-A of the Constitution.

12. Thiru P.Chidambaram, learned counsel, finally submitted that if this court interprets that absence of knowledge and absence of connivance are sufficient to show that the owner had exercised due care, he will accept that construction and concede that if such a construction to the proviso to Ss. 14 (1) and 14 (2) is given it will not offend Arts, 14, 19 and 300-A of the Constitution.

13. As regards S. 14-A of the Act, Thiru P.Chidambaram submitted that if the owner is an accused, then this provision is a rule of evidence. If that be so, it will not offend Arts, 14, 19 and 21 of the Constitution.

14. We will be adverting to the other arguments of Thiru P.Chidambram, as and when we deal with the provisions of the Act, the validity of which is being questioned in these writ proceedings.

15. Thiru Alagumalai, learned counsel, contended that Ss.14 (1) and 14 (2) are intra vires of the Constitution. According to him. S. 14 (1) is the rule, and S. 14 (2) is an exception. He drew analogy form Arts. 15(1) and 15(2) of the Constitution. The learned counsel further submitted that the word 'court' occurring in the sections means only the trial court and it will not include either the appellate or the High Court. If Sections 14 (1), 14 (2), 14 (4) and 14-A are properly interpreted, and should the word 'court' occuring therein mean only the trial court, and if such interpretation is given, the learned counsel would submit that all these sections are valid. If such interpretation is not given to the word the 'court' occuring in these sections, these sections, he would add, offend the fundamental rights guaranteed under the Constitution. Thiru Alagumalai further submitted that the assent given by the President for amending the Prohibition Act is an extraneous consideration and therefore the amended sections, now impugned are invalid. He would submit that the law made under Ss.14 *(1) 14 (2) and 14-A of the act transcends upon the law made by the Centre in the Criminal Procedure Code and as such the amendments are void under ARt, 245(1) of the Constitution. We will elaborate these arguments in our discussion down below.

16. Thiru Kalyanasundarm, learned counsel, more or less adopted the line of arguments made by Thiru Alagumalai and questioned the power of the State to promulgate such law.

17. Thiru Subramaniam, learned counsel, strenuously contended that the impugned provisions of the Act are in contravention with the procedure set up under the Code of Criminal Procedure, more especially under Ss. 451 and 482, Cr. P.C. and therefore the amended provisions impugned in these proceedings, have to be struck down. According to the learned counsel, the powers of the court conferred by the Code of Criminal Procedure, cannot be watered down by the impugned provisions of the ACt, which is a State Law.

18. Thiru Krishnamurthi the learned Advocate-General, submitted that the rigor of Ss. 14 (1) and 14 (2) is taken away by the proviso to Ss. 14 (1) and 14 (2). After referring to the analogous provisions in the Forest Act and other enactments, the learned Advocate-General submitted that 'due care in the prevention o the commission offence' is wide enough and it will take in knowledge and connivance as used in other analaogous legislations. As regards confiscation even in the case of an acquittal, the learned Advocate-General submitted that such confiscation depends upon the question as to how the court views the matter, and the even here, the proviso to S. 14 (2) will come to rescue. Ample power has been given to the court to decide such confiscation, and therefore, Ss. 14 (1) and 14 (2) are intravires the Constitution. The learned Advocate-General stated that though Section 14 (2) may appear to be superfluous it cannot be struck down as ultra vires the Constitution.

19. Countering the arguments on the behalf of the petitioners regarding S. 14 (4) of the Act, the learned Advocate-General submitted that temporary dispossession of property is reasonable and is saved by Art, 19(5) and Art 19(6) of the Constitution. He further submitted that the Act has been passed in order to give effect to the Directive Principles enshrined in the Constitution of India and therefore the amended legislation has to be considered as reasonable. He again submitted that the standard of reasonableness varies with the subject-mater dealt with. According to the learned Advocate-General just as redemption fine is provided in analogues legislations, confiscation of the vehicle is provided in the ACt the power of confiscation being given only to the court and not to the executive as in the analogous legislation. We will be dealing in detail touching these submissions later while we advert to facts and law arising in this case.

20. As regards S. 14-A of the Act, the learned Advocate-General even though at the beginning stage, he submitted that it is a rule of evidence finally said that it is a substantive provision of law, that it would come into play only after the owner is made an accused and that therefore the section would not offend any of the fundamental rights guaranteed by the Constitution.

21. Let us now deal with the impugned provisions which we have already extracted in the beginning of this judgment. We now take up first. Ss. 14 (1) and 14 (2). S. 14 (1) directs confiscation of athing both in the case of a conviction and of acquittal. Such confiscation, of the court decides, shall be ordered by the court. In S. 14 (1), as it stood before amendment, the words 'may be ordered by the court' were there, instead of 'shall be ordered by the court' in the amended section. According to Thiru P.Chidambaram the word 'shall' substituted for 'may' by the amendment constitutes a directive to the court that it must confiscate the thing involved in a prohibition offence. Such a directive, according to the learned counsel, offends Art. 14 of the Constitution and Arts. 19(1)(f) 19(1)(g) and 300-A. the learned counsel further stated that S. 14 (1) as it stands also violates Art. 21 of the Constitution. According to him. Arts. 14, 19 and 21 from one pattern and Arts. 14, 19 and 31 before the 44th Amendment would form another pattern, one pattern dealing with 'personal rights' and the other with 'property' rights'. As at present, we have Art. 300-A in the place of Art. 31 of the Constitution by reason of the 44th Amendment on 20-6-1979.

22. In support of his contention regarding applicability of Arts 14 and 19 in cases of personal rights and also in cases of property rights. Thiru P.Chidambaram, learned counsel would rely on the decision in R.C.Cooper v. Union of India, : [1970]3SCR530 . Originally in A.K.Gopalan v. State of Madras, : 1950CriLJ1383 it was assumed that certain Articles in the Constitution exclusively dealt with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws of fundamental rights of the individuals in general will be ignored. This view in A.K.Gopalan's case. : 1950CriLJ1383 , was not accepted as correct in R.C.Cooper's case, : [1970]3SCR530 , In R.C.Cooper's case, : [1970]3SCR530 the view is, a citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restriction sin the interests of the general public. According to this decision. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of these rights in their allotted files: they do not attempt to enunciate distinct rights. It has been held in this decision that acquisition must be under the authority of law and the expression 'law' means a law which is within the competence of the Legislature and does not impair the guarantee of the rights in Part III. So much so, the Supreme Court held that they do not agree that Articles 19(1)(f) and 31(2) are mutually exclusive. Thus, it is clear from this decision that the law has to be tested in relation to Arts. 14 and 19 of the Constitution. The doctrine of exclusivity propounded in A.K.Gopalan's case. : 1950CriLJ1383 has been clearly overruled in R.C.Cooper's case. : [1970]3SCR530 .

23. In Maneka Gandhi v. Union of India, : [1978]2SCR621 , there is clear observation to the following effect (para 54): -

'We may point out even at the cost of repetition that this court has said in so many terms in R.C.Cooper's case, different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression 'personal liberty' in Art. 21 must be so interpreted as to avoid overlapping between that Article and Art. 19(1). the expression 'person liberty' in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Art, 19'.

The above said principle clearly visualises that any procedure set up in relation to a law cannot be arbitrary, unfair or unreasonable. Therefore, the argument that any procedure, however, arbitrary, oppressive or unjust may be prescribed by the law cannot hold good as on date.

24. Without quoting the elaborate principles propounded in Maneka Gandhi's case : [1978]2SCR621 , it is sufficient for our purpose to quote the following observations therein

(Para 55)

'The law must, therefore, now be taken to be well settled that ARt. 21 does not exclude art. 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty', and there is consequently no infringement of the fundamental right conferred by Art. 21, such law in so far as it abridges or takes away any fundamental right under Art. 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decision in R.C.Cooper's case. : [1970]3SCR530 , Shambhu Nath Sarkar's case. : [1974]1SCR1 and Haradhan Saha's case. AIR 1973 SC 2154. Now if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose with in the meaning of Art. 21 has to stand the test of one or more of the fundamental rights conferred under Art. 19 which may be applicable in a given situation , ex hypothesis it must also be liable to be tested with reference to Art. 14'.

It is also well established that the procedure established by a special law must answer the requirement of the procedure under Article 21 of the Constitution.

25. In R.C.Cooper's case, : [1970]3SCR530 , the Supreme Court stated (Para 62):-

'We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with ARt 31(2). ARt 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. formal compliance with the conditions under Art. 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of law and the expression 'law' means a law which is with in the competence of the Legislature and does not impair the guarantee of the rights in Part III. We are unable, therefore to agree that Arts. 19(1)(f) and 31(2) are mutually exclusive'.

26. From the above, it is clear that the argument of Thiru P.Chidambaram to the effect that the procedure set up in the impugned sections have to be tested in relation to ARts. 14 and 19 is correct. Hence this legislation must be tested in relation to Arts. 14 and 19 of the Constitution. We may mention here that we do not think it necessary to notice the other decisions cited at the Bar on this aspect of the case since the learned Advocate-General has no quarrel with the proposition of law as stated above.

27. Nest, we have to consider the reasonableness of Ss.14 (1) and 14 (2). In this context , Thiru P.Chidambaram cited the decision Chintamannrao v State of M.P., : [1950]1SCR759 , where it has been held that unless it is shown that there is reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it. The said decision further states that the phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19(1)(g) and the social control permitted by clause (6) of Art. 19 it must be held to be wanting in that quality. This principle has been followed in State U.P. v Kaushailiya. : [1964]4SCR1002 and State of Maharashtra v. H.N.Rao, .

28. In State of Madras v. V.G.Row, : 1952CriLJ966 , it has been succinctly held (at p. 200):_

'It is important in this context to bear in mind that the test of reasonableness whereever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judge participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable'.

Reasonableness occurring in Arts 19(5) and 19(6) of the Constitution undoubtedly has to be presumed in favour of the constitutionality of legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under ARt. 19(1)(g) of the Constitution, it must be held to be in valid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the Article. If the Government do not place any material to establish that the legislation comes within the permissible limits of clause (6), it is surely not for the party aggrieved to prove negatively that the legislation was not reasonable and not conducive to the welfare of the community. this principle has been laid down in Saghir Ahmad v, State of U.P., : [1955]1SCR707 .

29. In Md. Faruk v State of M.P. : [1970]1SCR156 , the question of reasonableness came up for discussion. In that case, the Madhya Pradesh Government issued bye-laws by virtue of the powers conferred under sub-sec. (3) of S.430 of the Madhya Pradesh Municipal Corporation Act 23 of 1956. By the notification issued by the Jabalpur Municipality, a slaughter house at a place called 'Madar Tekdi' was fixed as premises for slaughtring animals. Under that notification, bulls and bullocks were permitted to be slaughtered, along with other animals like buffaloes, sheep, goats and pits. But on January 12, 1967, the State Government issued a notification cancelling the confirmation of the bye-laws in so far as they relate to slaughter of bulls and bullocks at Madar Tekdi slaughter house. That notification according to the writ petitioner in that case placed restrictions upon his right to carry on his hereditary vocation. He contended that it directly imposed a direction restricting upon his fundamental right under ARt. 19(1)(g) of the Constitution. On a consideration of the facts of that case, the Supreme Court held (Para 10):-

'The impugned notification, though technically within the competence of the State Government, directly infringes the fundamental right o the petitioner guaranteed by Art. 19(1)(g), and may be upheld only if it be established that it seeks to impose reasonable restrictions in the interests of the general public and a less drastic restriction will not ensure the interest of the general public. The court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt on evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, the inherent prernicious nature of the act prohibited on its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint and in the absence of exceptional situations such as the prevalence of State of emergency - national or local - or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved'.

30. The Supreme Court further observed in that decision that if such a restriction is imposed not in the interest of the general public, but merely to respect the suscepitibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant, it will not be regarded as reasonable. The Supreme Court, held that the notification issued by the State Government must be declared ultra vires as infringing Art. 19(1)(g) of the Constitution.

31. From a reading of Ss. 14(1) and 14 (2) of the Act, now under consideration, it is seen that the burden is shifted on the owner of the vehicle to satisfy the court that he had exercised due care in the prevention of the commission of the offence against the ACt and that if he is not bale to satisfy the court, the court has no other option except to order confiscation of the vehicle involved. Thiru P.Chidambaram, learned counsel, submitted that the requirement o the sections is against all canons of the Criminal Jurisprudence and raised the question; how is it possible for the owner who has absolutely no knowledge of his car being used in the commission of an offence against the Act, to satisfy the Court that he had exercised due care in the prevention o the commission of such offence? The burden thus placed by the said provisions restricts the owner's freedom and on the face of it violates the fundamental rights guaranteed to him by the Constitution. If so, as held Szaghir Ahmed v State of U.P. : [1955]1SCR707 and Md Faruk v State of M.P. : [1970]1SCR156 , it is for the Government to place the material to establish that the legislation comes within the permissible limits of clauses (5) and (6) of Art, 19, and it is surely not conducive to the welfare of the community.

32. In State v Murray and Co., : AIR1965Mad301 , a Bench of our High Court had occasion to consider the restrictions imposed in the movement of handcarts in day time on main road in business area. Such restriction, according to the Brench, prima facie, violates a fundamental right guaranteed under clause (6) of Art. 19. The Bench held (Para 9) :-

'The concept of reasonableness in order t test any law impinging on any of the fundamental rights, is to see whether it is reasonable. It is not however a static concept but an elastic one, the standard being determinable according to necessity and of public zeal in the particular situation when the law is imposed.'

33. continuing the judgment the Bench observed - There are certain broad and objective tests for finding out whether any restriction imposed on a fundamental right is reasonable or not First, it has to be seen whether there is any proximate connection or nexus between the restriction imposed and the evil sought to be remedied. Secondly, even where the restriction imposed is held to have a nexus or relation to the object which the law-making body seeks to achieve, the restriction unless it be within the necessary limits, will be unreasonable. Neither an excessive invasion of rights nor an arbitrary one can ever be regarded as reasonable. The restriction must not be excessive than what is necessary to check the evil in the interest of the public. Thirdly, the restriction must be imposed with care and deliberation. In the judgment, the Bench usefully quoted the observations of the Supreme Court made in Chintamanrao v State of Madhya Pradesh. : [1950]1SCR759 , on what is reasonable restriction. The quotation is as follows (Para 7) :-

'The phrase 'reasonable restriction' connotes that the limitation impose don a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies reasonable care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of Art. 19. it must be held to be wanting in that quality.

34. Applying the above quoted principle, the Bench of our High Court held that the impugned notification, in so far as it totally prohibits the passage of handcarts during day time, would be invalid.

35. The principles laid down in the above said decisions clearly establish what is 'reasonable restriction' envisaged in claused (5) and (6) Art. 19 of the Constitution.

36. In Mam and Co v Forest Range Officer, (1967) 1 MLJ 1331, a Bench of our High Court had occasion to consider S 43 of the Forest Act. S. 43 of the Forest Act, as it originally stood ran as follows :-

'When any person is convicted of a forest offence, all timber or forest produce in respect of which such offence has been committed, and all tools, ropes chains, boats, vehicles and cattle used in committing such offence, shall be liable by order of convicting Magistrate in confiscation. Such confiscation may be in addition to any other punishment prescribed for such offence'.

37. But this section was amended by Madras Act 36 of 1961 by substituting the words 'shall be confiscated to the Government' for the words 'shall be liable by order of the convicting magistrate to confiscation'. The Bench usefully referred to the decision of the Supreme Court in Cri. Ap. 97 of 1964, which arose under the Opium Act, as it originally stood, read as follows :-

'S. 11.- Confiscation of opium - In any case in which an offence under S. 9. has been committed..... the vessels packages and coverings in which any opium liable to confiscation under this section is found and the other contents (if any) of the vessel or package in which such opium maybe concealed and the animals and conveyance used in carrying it shall likewise be liable to confiscation'.

The above provision was amended by the Opium Madhya Bharat Amendment Act 1955 (Act XV of 1955) in the following words :-

'Section 11. In any case in which an offence under Ss. 9, 9-A, 9-B, 9-C, 9-D, 9-E, 9-F and 9-G, has been committed the property detailed herin below shall be confiscated...... (b) the receptacles ............... in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyance used in carrying it'.

In that case it was argued on behalf of the State that the different phraseology as introduced in the amended section clearly disclosed the indention of the Legislature of making it obligatory on the court to confiscate the vehicle used for the transport of opium. But the Supreme Court held that the High Court was correct in reading S. 11 of the Madhya Bharat ACt as permissive and not obligatory. While disposing of the criminal appeal, the Supreme Court referred to three relevant considerations in the following terms:-

'It is well settled that the use of the word 'shall' does not always mean that the enactment is obligatory or mandatory, it depends upon the context in which the word 'shall' occurs and the other circumstances. Three considerations. are relevant in construing S.11, First it is not denied by Mr.Shroff(the learned Advocate for the State) that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium. Suppose a person steals a truck and then uses it for transporting contraband opium. Suppose a person steals a truck and then uses it for transporting g contraband opium. According to Mr.Shroff the truck would have to be confiscated. It is well recognised that if a statute leads to absurdity, hardship or injustice presumbaly not intended, a construction may be put open it which modifies the meaning of the words and even the structure of the sentence.

Secondly, it is a penal statute and it should, if possible, be constructed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty.

Thirdly, if the meaning suggested by Mr.Shroff is given. S. 11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restriction under Art. 19 of the Constitution. Bearing all these considerations in mind, we consider that S. 11 of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contrat and opiumis found or is being transported should be confiscated or not having regard to all the circumstances of the case'.

Applying the abovesaid principles, the Bench came to the conclusion that the word 'shall' introduced by the Amending Madras Act XXXVI of 1961 does not make it obligatory on the court to confiscate the vehicle used in a forest offence in each and every case irrespective of the innonce of the owner of the vehicle. If really Madras Act XXXVI of 1961 made it obligatory to confiscate the vehicle use in the commission of a forest offence under any circumstances so as to affect the rights of innocent owners of the vehicles, the Bench proceeded to say that the amending ACt may have to be struck downs as imposing unreasonable restrictions under Art. 19 of the Constitution. The Bench concluded that the amendment of S. 43 of the Madras Forest Act by madras ACt XXXVI of 1961 by the substitution of the words 'shall' be liable, by order o the convicting Magistrate to confiscate' does not make it obligatory to confiscate the vehicles used in forest offences in all cases and that it is for the court to consider in each case whether the vehicle used in the commission of the forest offence should be confiscated or not having regard to all the circumstances of the case.

38. As far as the case on hand is concerned, even though in the amended Ss. 14 (1) and 14 (2) the words used are that such confiscation 'shall be' ordered by the court instead of 'may be' ordered by the court as they stood before the amendment, Thiru P. Chidambaram, learned counsel, submitted that if it is watered down to mean that it is not obligatory for the court to order such confiscation but the court has power to consider in each case whether the vehicle used in the commission of an offence against Act should be confiscated or not, having regard to all the circumstances of the case, it may not offend Art. 19 of the Constitution. In the Supreme Court decision rendered in Crl. Ap. 97 of 1964, in respect of the Opium Act, as amended by the State of Madhya Bharat by Act XV of 1955, the Advocate for the State submitted that even if the truck had been stolen and it was used for transporting contraband opium, under the provisions of the Act the truck would have to be confiscated. This contention was rejected by the Supreme Court.

39. Thiru Krishnamurthi, the learned Advocate-General appearing for the State of Tamil Nadu, in fairness said that a person who has not committed or abetted an offence should not be visited with a penalty, and that even though the words 'shall be ordered by the court' have been substituted for the words 'may be ordered by the court' the proviso to S. 14 (2) which applies both to S. 14 (1) as well as S. 14 (2) visualises the hearing of the owner in such cases and that if the owner satisfies the court that he has exercised due care in the prevention of the commission of the offence against the Act, the court cannot order confiscation. Hence, according to the learned Advocate-General, the provisions in Ss. 14 (1) and 14 (2) have to be read in entirety with the proviso and if so done the proper construction would be that if the court is satisfied that the owner has no knowledge at all of his vehicle being taken for purposes prohibited by the Act, it can be construed that he has exercised due care in the prevention of the commission of such offence. This, in our opinion is a fair reading of the provisions in Ss. 14 (1) and 14 (2).

40. As indicated by the Supreme Court in the judgement in Crl. Ap. 97 of 1964, if a statute leads to absurdity, hardship or injustice, presumably not intended a construction my be put upon it which modifies the meaning of the words and even the structure of the sentence. Applying the said principle laid down by the supreme Court. We are of the view that the discretion of the court has not been belittled by the amended Ss. 14 (1) and 14 (2). Even under these amended provisions, the court has to order confiscation if it decided that it is a thing to be confiscated. The legislature, in order to be more specific, has introduced the amendments by substituting 'shall' in the place of 'may'. As these provisions now stand, the discretion of the court has not been curtailed. When the owner is not aware of the vehicle having been taken for a certain purpose, or when the owner is not aware that the vehicle has been taken for transporting contraband liquor, how it is possible for him to exercise due care in the prevention of commission of an offence under the Act? That is why we are of the view that the two sections visualise that the vehicle can be released by the court that he has exercised due care in the prevention o the commission of an offence against the Act. When the owner satisfies the court that he is not aware of the vehicle being taken away by a person or that he gave the vehicle for a specific purpose other than for transport of contraband liquor, that is enough to show that he has taken due care in the prevention of commission of such offence. Absence of knowledge, is a wider term and it includes 'due care being taken in the prevention of the commission of such an offence'.

41. Inasmuch as the proviso to Sections 14 (1) and 14 (2) of the act and the construction given by the learned Advocate-General clearly give ample power to the court to decide the question of confiscation, and as a result of the interpretation and construction given by us to the sections, as above, as not leading to any absurdity, hardship or injustice we find that the amended Sections 14 (1) and 14 (2) of the Act are reasonable and that they do not violate any of the provisions of fundamental rights guaranteed under the Constitution.

42. Inasmuch as the proviso to Sections 14 (1) and 14 (2) of the Act and the construction given by the learned Advocate-General clearly give ample power to the court to decide the question of confiscation, and as a result of the interpretation and construction given by us to the sections, as above, as not leading to any absurdity, hardship or injustice we find that the amended Sections 14 (1) and 14 (2) of the Act are reasonable and that they do not violate any of the provisions of fundamental rights guaranteed under the Constitution.

43. The next section challenged is S. 14 (4) of the ACt. This is new section introduced by the Amending Act 9 of 1979 and it reads as follows :-

'14 (4). Notwithstanding anything contained in sub-secs. (1) to (3), the Collector or other Prohibition Officer in charge of the district or any other officer authorised by the State Government in that behalf, shall detain the animal, vessel, cart or other vehicle used in the commission of an offence against this ACt till the case is disposed of by the court and notwithstanding anything contained in the code of Criminal Procedure 1973 (Central Act 2 of 1973), no interim order regarding the disposal of such property shall be passed by the court till the case is disposed of'.

44. It is in respect of this section, all the counsel appearing in this batch of writ petitions, advance arguments. According to them this provision in an obnoxious provision since it prohibits the court to pass any interim order regarding disposal of the vehicle seized. It was submitted that under this provision no interim order is possible till the disposal of the phase, which includes 'trail' 'appeal' and 'revision', which may take two or three years. There is also no provision under this section for maintenance of the vehicle during the pendency of the case. Therefore, according to learned counsel, this S. 14 (4) offends Arts, 14, 19, 31-C and now Art 300-A of the Constitution of India. It was further submitted that S. 14 (4) overrides the provisions in the Code of Criminal Procedure, in respect of disposal of property pending disposal of cases as also the inherent powers vested in the High Court, under S. 482, Cr. P.C. it was also contended that S. 14 (4) offends the rights of an individual to possess the property and as such it is for the Government to satisfy that such restriction is reasonable coming within the reasonable limits envisaged in clauses (5) and (6) of Article 19 of the Constitution. The Madras Prohibition Act comes under the state Seventh Schedule to the Constitution. The Madras List, that is, Entry 8 of List II of the Seventh Schedule to the Constitution. It overrides the provisions under Ss. 451 and 482 of the Code of Criminal Procedure, dealing with disposal of property and the inherent powers of the High Court.

Section 451, Cr. P.C. reads as follows :-

'451 Order for custody and disposal of property pending in certain cases :- When any property is produced before criminal Court during any inquiry or trial, the court may make such order as such property pending the conclusion of in inquirty or trial, and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation - For the purposes of this section, 'property' includes -

(a) property of any kind or document which is produced before the court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence'.

452. Order for disposal of property at conclusion of trial-

(1) When an inquiry or trial in any criminal court is concluded the court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence'.

45. The Code of Criminal Procedure is a Central enactment made by virtue of Entry 2 in List III of the Seventh Schedule to the Constitution. It occurs in the concurrent list. The section under consideration i.e., S. 14 (4), according to the learned counsel, is contrary to the provisions of the Code of Criminal Procedure, which we have extracted above. Hence S. 14 (4) is void according to Article 254(1) of the Constitution.

46. Thiru Alagumalai, learned counsel appearing for some of the writ petitioners has also contended that the assent given by the President to the impugned amendment was on extraneous considerations and therefore the impugned provision is not saved by Article 254(2) of the Constitution. To the very same effect, Thiru Kalyanasundaram has argued.

47. Thiru Subramaniam, learned counsel, submitted that S. 14 (4) cannot override the provisions of Ss. 451 and 482 of the Code of Criminal Procedure.

48. The learned Advocate-General, on behalf of the State, submitted that the assent of the President to the amendments has been obtained on relevant considerations and inasmuch as the State Law entrenches upon the provisions in the Code of Criminal Procedure, the assent of the President has been taken for such amendment. Hence, according to the learned Advocate-General, the amendment is not hit by Article 254 of the Constitution of India.

49. Thiru Alagumalai further contended that if his construction of the words 'occuring in the amended sections is accepted as meaning the trial court alone, there would not be any question of the fundamental rights being offended against as alleged, since there is no total prohibition for the High Court and other Courts to decide the question of confiscation. He further contended that if this construction is not accepted, the sections impugned in these proceedings are void under Art. 254 of the Constitution. It was further contended that such confiscation of vehicles affects the inter-State trade and commerce, and any legislation pertaining to the same has to be made by the Parliament alone. Therefore, the impugned provisions of the Prohibition Act have to be declared as void.

50. Various decisions were cited by Thiru Alagumalai for the proposition that the inherent powers of the High Court under S 482, Cr. P.C. cannot be curtailed and as such the High Court has powers to pass such orders as are necessary in the interests of justice. In Madhu Limaye v. State of Maharashtra, : 1978CriLJ165 it has been held that the inherent power of the Court conferred under S. 482, Cr. P.C. can be exercised barring a few exceptions, such as -

1. That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

2. That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice :

3. That it should not be exercised as against the express bar of law engrafted in any other provision of the Code'.

51. Inasmuch as we are now concerned only with the constitutional validity of S. 14 (4), it is unnecessary for us to consider the powers of the High Court under S. 482. Cr. P.C. Therefore we are not expressing any opinion on this point.

52. The argument of Thiru alagumalai is to the effect that S. 14 (4) is in effect a piece of legislation in respect of inter-State trade and commerce and that since it affects inter-State movement of vehicles, the law is void, since inter-State trade and commerce comes under List I of the Seventh Schedule to the Constitution. We are unable to appreciate this argument. The object for which the sections impugned, including S. 14 (4) were amended, was to stop illicit distillation and sale of intoxicating liquors and drugs, since it was found to be on the increase every year. With a view to enforce prohibition rigorously it was considered necessary to amend the Tamil Nadu Prohibition Act 1937 (Tamil Nadu Act X of 1937) suitably so as to award deterrent punishment to offenders and to empower the courts to order the removal of persons convicted for certain specified offences under that Act from any local area. In short, this legislation pertains to the State List and in pith and substance, it is in respect of a subject pertaining to the State List. No doubt S. 14 (4) entrenches upon the criminal procedure set-up in the Act passed by the Centre. That is why the assent of the President was taken for adding S. 14 (4) among other amendments. Such question was directly dealt with in State of Karnataka v Ranganatha Reddi. : [1978]1SCR641 . That was a case where the Karnataka Contract Carriages (Acquisition)Act (21 of 1976) came up for consideration. An argument was taken that the provision of the said Act came in conflict with the Central Legislation and also transgreesed the legislative jurisdiction of the State. The Supreme Court held as follows

'In our judgment it is difficult to apply the principles of any of the case aforesaid to the facts and the provisions of the Act. it is not an Act which deals with any inter-State trade and commerce. Even assuming for the sake of argument, that carriage of passengers from one State to the other is in one sense a part of the inter-State trade and commerce, the impugned Act is not one which seeks to legislate in regard to the said topic. Primarily and almost wholly it is an Act to provide for the acquisition of contract carriages, the Inter-State permits and the other properties situated in the State of Karnataka. In pith and substance, it is an Act of that kind. The incidental encroachment on the topic of inter-State trade and commerce, even assuming there is some, cannot invalidate the Act'.

Finally the Supreme Court held that the Act is not invalid.

53. Applying the abovesaid principle to the facts of the present case, it is farfetched to argue that detention of the vehicle used for transporting illicit liquor would affect inter-State trade and commerce. In pith and substance this is a law intended to legislate on a sub provisions entrench upon the procedure set up by the law passed by the Parliament and pertaining to the Concurrent List, the assent of the President was taken in order to avoid repugnancy. Therefore, it is difficult to conceive that the State has legislated upon a subject coming in List I of the Seventh Schedule to the Constitution.

54. The argument of Thiru Alagumalai is that the State, under the guise of an amendment to the State law cannot amend the Central Law, and if so, it will be in contravention of Art. 254(1) of the Constitution. The learned Advocate-General submitted that in pith and substance, the pmpugned law is one coming under the State List and that there is no prohibition for the State Legislature enacting the law which would come under both the State List and the Concurrent List. According to the learned Advocate-General, the only procedure for such of those sections which in effect amend the law promulgated by the parliament under the Concurrent List. For this proposition, we have the decision in Narayanaswami Naidu v. Inspector of Police AIR 1949 Mad 307. that case arose out of the government of India Act 1935. While dealing with S. 107 of that Act which is analogous to the present Art 254 of the Constitution of India, Rajamannar, C.J. has observed as follows (Para 20) :-

'Let us assume that the subject-matter of S. 15-A is compromised in the Concurrent List and also assume that the other provision of the Act fall exclusively within the Provincial List. is there anything in any of the provisions of the Government of India Act, or any the Provisional Legislature from dealing with both intake same enactment after taking care to comply with the procedure laid down in sub-sec (2) of S. 107, with respect to a provision which is inconsistent with or repugnant to a matter in the Concurrent List? There is no such provision or general principle'.

55. Hence, this decision is an authority for the present legislation and the validity of sections impugned in these writ proceedings.

56. It was argued by Thiru Alagumalai that a Central Law cannot be amended to differ from one State to another. Reliance was placed by him on Ram Narayan Sigh V State of U.P. : (1981)2SCC757 . The learned Advocate General submitted that it was in respect of a penal provision under the Indian Penal Code and the present is in respect of procedure. We notice that that case has been referred to a Fuller Bench of the Supreme Court.

57. For the argument's that the impugned piece of legislation under S. 14 (4) is a colourable exercise of the legislative powers of the State advanced by Thiru Alagumalai, the learned Advocate General submitted that it is not so. Thiru Alagamalai in support of his contention, will rely on State of Bihar v Kameshwar Singh. : [1952]1SCR889 . However, the learned Advocate-General would rely upon the very same decision and say that the object of the Act is to effectively enforce the prohibition in the State of Tamil Nadu and that it is unfair on the part of the learned counsel to impute motive to the Government. The learned Advocate-General would rely on the following passage occurring in that decision (Para 58) :-

'It is by no means easy to impute a dishonest motive to the Legislature of a State and hold that it acted 'mala fide' and maliciously in passing the Bihar Land Reforms Act or that it perpetrated a fraud on the constitution by enacting this law. It may be that some of the provisions of the act may operate harshly on certain person or a few of the zaminers and maybe bad if they are in excess of the legislative power of the Bihar Legislature but form that circumstance it does not follow that the whole enactment is a fraud on the Constitution. From the premises that the estates of half a dozen zamindar may be expropriated without payment of compensation, one cannot jump to the conclusion that the whole of the enactment is a fraud on the Constitution or that all the provisions as to payment of compensation are illusory. At best they are illusory only in case of some only of the large body of person affected by it'.

58. Following these principles, we are of the view that there is no question of any colourable exercise of the legislative power of the State in enacting this piece of legislation, but at the worst, it may operate hardship on certain person and in certain cases.

59. Regarding the argument of Thiru Alagumalai that the assent of the President has not been properly obtained, the learned Advocate-General placed before us the file relating to obtaining of the assent of the President for amending the Prohibition Act, and submitted that all aspects of the matter had been brought to the notice of the President and it was thereafter only the assent of the President was obtained. After perusal of the file we are satisfied that the President's assent has been obtained in this case after adverting to the necessary and relevant provisions of law and the purpose of the legislation and not on extraneous considerations.

60. We shall now take the question of legislative competency and the doctrine of repugnancy in regard to impugned provisions. The legislative Scheme as formulated in Art. 246 of the Constitution is to secure the predominance of the Union List (List I) over the other two Lists (List II and III) and that of the Concurrent List (List III) over the State (List II). In case of overlapping between an entry in the Union List and en Entry in the State List the former will prevail to the extent of overlapping and the subject matter will fall exclusively within the jurisdiction of the Union and the States will be precluded from legislating on it. In case of any overlapping between an Entry in the Union List and an Entry in the Concurrent List, the former will prevail over the later, and it will be treated as the subject-matter of the Union and States will be prevented form legislating on it. IN case of overlapping between an Entry in the Concurrent List entitling the Parliament and State Legislatures to legislate with respect to it, rather than keeping it exclusively a State matter. But this rule of predominance can be invoked only as a last resort in case of inevitable or irreconcilable conflict between the Lists. Before applying this rule, the court should make an attempt to construe the legislate Entries reasonably and practically so as to reconcile the conflict and avoid over lapping. In the harmonizing and reconciling process to the extent necessary and possible, the ambit of broader Entries should be restricted in favour of narrower ones, so that the latter are not eaten up by the former. In case of general Entry and specific Entry, the former should be restricted to give sense and efficacy to the latter and it should be treaded as particularised and something in the nature of an exception to the general Entry. The rationale of this approach is that the framers of the Constitution could not have intended that there should exist any conflict among the legislative Entries in different Lists, and it is therefore necessary to adopt a process of construction which would give effect to all Entries being rendered futile or otiose.

61. Any question of repugnancy between a Union Legislation and State legislation is solved by Art. 254(1), if any, provision of a State law is repugnant to a provision in a law made by the Parliament which it is competent to enact or to any existing law with respect to matter in the Concurrent List, then the Union law or the existing law will prevail over the State Law, and it does not matter whether the Union Law was enacted before or after the State Law. Art 254(1) of the Constitution applies only when both the Union law and the State law pertain to a matter in the Concurrent List. If the State law incidentally touches or encroaches on a subject in the Concurrent list, it may perhaps be saved by the application of the doctrine of 'pith and substance'. This view was taken by the Supreme Court in A.S.Krishna v State of Madras. : 1957CriLJ409 .

62. In this case, the Supreme Court upheld the Madras Prohibition Act, even though it laid down a procedure and principles of evidence for trial of prohibition offences under the law different form those contained in the Criminal Procedure Code and the Indian Evidence Act, both of them are the Union laws in the Concurrent field. The doctrine of pith and substance cannot be invoked when there is clear conflict as manifest encroachment. If the encroachment of the State Law is only on subject-matter in the Concurrent List, on which there is already a Union or existing law. State law can still be valid if it has received the assent of the President of India under Art. 254(2). Art 254(2) is an exception to Art. 254(1) and places an expedient to save a State Law repugnant to a Union Law on a matter in the Concurrent List. Art. 254(2) provides that where a State law on a subject-matter in the Concurrent List contains any provision repugnant to the provisions of a Union law prevails in the State, if the President of India gives his assent to it, until a subsequent Union law is made on the same subject.

63. In Ukha Kolhe v State of Maharashtra AIR 1963 SC 1531, the Supreme Court upheld the State Law dealing with prohibition and altering provisions of the Criminal Procedure Code and Evidence Act, which could be referable clearly to Entries 2 and 12 of Concurrent List, on the ground that the State law had received the assent of the President. The relevant portion in the said decision runs as follows (Para 20):-

'It was urged that by the enactment of S. 129-A and S. 129-B o the Act, S. 150 of the Code stood repealed in its application to offences under S. 66(1) of the Bombay Prohibition Act, and reliance in this behalf was placed upon Art. 254(2) of the Constitution. It is true that power to legislate on matters relating to Criminal Procedure Case, and evidence falls within the third Lost of the Seventh Schedule to the Constitution and the Union Parliament and the State Legislature have concurrent authority in respect of these matters. The expression 'Criminal procedure' in the legislative entry includes investigation of offences and Ss.129-A and 129-B must be regarded as enacted in exercise of the power conferred by Entries 2 and 12 in the Third List. The Code of Criminal Procedure was a law in force immediately before the commencement of the Constitution and by virtue of Art. 254(2) legislation by a State legislature with respect to any of the matters enumerated in the Third List repugnant to an earlier law made by Parliament or an existing law with respect to that matter if it has been reserved for the consideration of the President, and has received his assent prevails in the State. Bombay Act 12 of 1959 was reserved for the consideration of the President and has received his assent : Ss. 129-A and 129-B will prevail in the State of Bombay to the extent of inconsistency with prevail only to the extent of the repugnancy alone and no more is clear from the words of Art 254'.

64. The view of the Supreme Court in the above case established the point that State Laws to the extent they contain rules of criminal procedure and evidence, may be regarded as failing also in the 'Concurrent List'.

65. Thus, from the foregoing discussion, it is clear that S. 14 (4) is neither void nor hit by the doctrine of repugnancy.

66. Nest, we have to consider the question as to how far S. 14 (4) of the Act satisfies the 'reasonable restriction' envisaged under Art. 19(5) and 6 of the Constitution.

67. According to the learned counsel appearing for the petitioners, this provision is arbitrary and unreasonable. It was submitted that the vehicle is detained only for identification at the time of the trial. Hence the curtailment of Power of the Court from passing any interim order will result in total loss of the property. It was brought to our notice that in almost all the cases no no charge-sheet has yet been filed, and if the vehicles are allowed to be in the open yard, under the custody of the office concerned, it is needless to say that they will deteriorate not only in value, but be open to pilferage of its parts by miscreants. As we gave stated already, the disposal of the case will take a few years and until then as per S. 14 (4), no interim order regarding disposal of such property shall be passed by any court.

68. The learned Advocate-General, in support of upholding the Constitutional validity of S. 14 (4) submitted that the detention is only a temporary dispossession and therefore it is reasonable. On this point he relies upon M.P.Sharma v Satish Chandra : 1978(2)ELT287(SC) . In that case, search and seizure came up for discussion and the question as to whether in a seizure by search the fundamental rights guaranteed under ARt. 19(1)(g) are violated or not came to be decided. The Supreme Court, considering the facts of that case, held (Para 2 ):

'..........A search by itself is not a restriction on the right to hold and enjoy property. No doubt a seizure and carrying away s a restriction of the property seized. This, however, is only temporary and for the limited purposed of investigation. A search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the articles seized. Statutory regulation in this behalf is a necessary and reasonable restriction and cannot 'per se' be considered to be unconstitutional. The damage, if any caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings. We are unable to see how any question of violation of Art 19(1)(g) is involved in question which purport to be under the first alternative of S. 96(1) of the Criminal Procedure Code'.

We are afraid, this decision will not be of any help to the Advocate-General. The case under consideration by us is not a case wherein the seizure is being questioned. It is a case in which the court is prohibited form passing any orders regarding the disposal of the property till the case is disposed of and that is being questioned.

69. In the Criminal Procedure Code, under S. 93 provision is made as to how a search warrant has to be issued Section 102, Cr.P.C. gives power to the police officer to seize certain property Under S. 102(3) every police officer acting under sub-sec. (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same. Under S. 451, Cr.P.C. procedure is made for safe custody and disposal of the property seized pending trail in certain cases. Under S. 452, provision has been made for disposal of property at the conclusion of the trial. Under S. 457 the following procedure in respect of the seized property has been made :-

'457 Procedure by police upon seizure of property :-

1. Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a criminal court during an enquiry or trial, the Magistrate may make such order he thinks fit respecting the disposal of such property, or the delivery of such property to the person entitled to the possession therefore or if such person cannot be ascertained respecting the custody and production of such property.

2. If the person so entitled is known, the Magistrate may order the property to be delivered to him on such condition (if any) as the Magistrate thinks fit and if such person is unknown the Magistrate may detain it and shall in such cases, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation'.

The above valuable safeguards are found in the code in respect of property seized by a police officer during investigation. Under S. 14 (4) of the Act, no such safeguards have been made. On the other hand, power is given to the Collector or any other prohibition office in charge of the district or any other prohibition office in charge of the district or any other officer authorised by the State Government in that behalf to detain the vehicle used in the commission of the offence till the case is disposed of by the court. This section further prohibits the provisions of the Code of Criminal Procedure being invoked and also directs that no interim order regarding the disposal of such property shall be passed by the court till the case is disposed of According to the learned counsel the deprivation is so gross that it will ruin contention of the Advocate-General as if a directive principle of the Constitution is given effect to by such legislation, does not appeal to us. There is no thing in the Constitutional provisions to show that such directive principled to enforce prohibition cannot be tested under Art. 14 or 19 of the Constitution.

70. In Pathumma v State of Kerala, : [1978]2SCR537 dealing with such legislation, the Supreme Court has observed as follows (Para 14) :

'Another test which has been laid down by this court is that restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. In the case of Chintaman Rao v State of Madhya Pradesh, : [1950]1SCR759 the court observed as follows:- 'The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art 19(1)(g) and the social control permitted by clause (6) of Art 19 it must be held to be wanting in that quality.'

What is required is that the legislature takes intelligent care and deliberation in choosing a course which is dictated by reason and good conscience so as to strike a just balance between the freedom contained in Art 19(1) and the special control permitted by clauses (5) and (6) of Art 19'.

71. Continuing the judgment the Supreme Court has further illustrated as to how reasonableness has to be judged. The Supreme Court states (Para 15):

'It has also been pointed out by this court that in order to judge the quality of the reasonableness no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will have to vary from case to case and with regard to changing conditions and the surrounding circumstances all of which must enter into the judicial verdict. In Other words, the position is that the court has to make not a rigid or dogmatic but an elastic and pragmatic approach to the facts of the case and to take an overall view of all the circumstances, factors and issues facing the situation. In the case of State of Madras v V.G.Row : 1952CriLJ966 the court observed as follows ( at page 200-) 'It is important in this context to bear in mind that the test of reasonableness wherever prescribed, should be applied to each individual statue impugned and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed the underlying purpose of the veil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable in all the circumstances of a given cse, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part.'

In short, by restriction, a just balance has to be struck between the freedom guaranteed and the social control envisaged by clause (6) of Art 19. In applying this test of reasonableness the court has to consider the question in the background of facts and circumstances under which the legislation was made, taking into account the nature of the evil sought to be remedy and to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than what is necessary in the interests of the general public. The Court has also to see whether by virtue of the restriction imposed on the right of the citizen, the object of the statute is really fulfilled or frustrated.

72. Thiru P.Chidambaram rightly argued that the mischief Section 14 (4) plays will lead to harassment of an individual and deprivation of his possession of the property since the same is not controlled by proper procedure. Even the authority of the court is taken away, with the result that the Executive has unrestricted unguided and arbitrary power to detain any vehicle alleged to have been involved in a prohibition offence.

73. Further, the order of detention under S. 14 (4) of the Act, in our view, deprives a citizen of his lawful possession of the property concerned. The meaning to be given for the words 'till the case is disposed of will include until the case is disposed of by the highest Court in the land. It can be taken that such disposal will take more than a year. Thiru P.Chidambaram has produced into court a chart prepared by him and has rightly pointed out that charge-sheet has not yet been filed in respect of several cases in which seizures have been effected several months facts, we can usefully refer to the decision in Corporation of Calcutta v Cal Tranmways Co. Ltd., : 1964CriLJ354 . That was a case in which the provisions of S. 437 (1) (b) of the Calcutta Municipal Act came up for consideration. That provision runs thus -.

'1 No person shall use or permit or suffer to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely -

(a) ..........

(b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life health or property or likely to create a nuisance'.

The argument advanced on behalf of the Calcutta Tramsways Co. Ltd., was that the words underlined in the above section create a total ban on the affected party to invoke the jurisdiction of the civil court for redress and that the powers conferred upon the Corporation of Calcutta, however, capricious or unreasonable, have to prevail and therefore to the Calcutta Tramways Co, Ltd, such a provision is unreasonable restriction on the right to carry on any trade etc. enshrined in Art. 19(1)(g). In that case, the Supreme Court observed (at p.1282):-

'The vice in the provision is that it makes the opinion of the Corporation, howsoever capricious or arbitrary it may be or howsoever unreasonable on the face of it, it may be, conclusive and non-justiciable. The conferment of such a power on a municipal body which has the effect of imposing restrictions on carrying on trade etc. cannot be said to be a reasonable restrictions on carrying on trade etc cannot be said to be a reasonable restriction within the meaning of Art 19(6). Such a provision puts carrying on trade by those residing within the limits of the Municipal Corporation entirely at its mercy if it chooses to exercise that power capriciously, arbitrarily and unreasonably, though not mala fide. We therefore ferment of such a power on the Corporation as it stands in the parenthetical clause in S. 437 (1) (b) must be held to be an unreasonable restriction on the right to carry on trade etc'.

74. In another decision reported in Md Faruk v State of M.P. : [1970]1SCR156 , which we have already considered while dealing with Ss. 14 (1) and 14 (2) the Supreme Court elaborately dealt with Art. 19(1)(g) and held that the legislation in question in that case was ultra vires as infringing Art. 19(1)(g).

75. In Dwarka Prasad v State of U.P. : [1954]1SCR803 , the restriction imposed by the Uttar Pradesh Coal Control Order 1952, passed in exercise of the powers conferred upon the State Government by S. 3(2) of the Essential Supplies Act 1946 read with the notified order of the Government of India issued under S. 4 of the Act, came to be questioned. In that case, the Supreme Court has held as follows (Para 6) :-

' A law or order, which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. The phrase 'reasonable restriction' connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public, Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Art. 19(1)(g) and the social control permitted by clause (6) of Art. 19, it must be held to be wanting in reasonableness'.

The Supreme Court, in that decision examined the provisions contained in clause 3 (1) and also clause 3 (2) (a) and clause 3 (2) (b) of the Coal Control Order. Clause 3 (2) (b) states that no thing in clause 3 (1) shall apply to any person or class of persons exempted from any provision of the above sub-clause by the State Coal Controller to the extent of their exemption. Considering this sub-clause by the State Coal Controller to the extent of their exemption. Considering this sub-clause the Supreme Court observed -

'It will be seen that the Control Order nowhere indicates what the grounds for exemption are, nor have any rules been framed on this point. An unrestricted power has been given to the State Controller to make exemptions, and even if he acts arbitrarily or from improper motives, there is no check over it and no way of obtaining redress. Clause 3 (2) (b) of the Control Order seems to us, therefore, prima facie to be unreasonable. We agree, however, with Mr.Umrigar that the portion of the Control Order even though bad is several from the rest and we are not really concerned with the validity or otherwise of this provision in the present case as no action taken under it is the subject matter of any complaint before us.'

76. One other clause in the Coal Control Order which relates to granting or refusing licence is clause 4 (3). As per this clause, the Supreme Court continued :-

'The licensing authority has been given absolute power to grant or refuse to grant or refuse to grant, renew or refuse to renew suspend, revoke, cancel or modify any licence under this order and the only thing he had to do is to record reasons for the action he takes. Not only so the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same and the choice can be made in favour of any and every person. It seems to us that such provision cannot be said to be reasonable. No rules have been framed and no directions given no these matters to regulate or guide the discretion of the licensing officer. Practically the order commits to the unrestrained will of a single individual the power to grant withhold or cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the same'.

77. Adverting to this the Supreme Court held that there is no higher authority prescribed in the Order who could examine the property of the reasons and revise or review the decision of the subordinate office. Even though the subordinate officers are required to record reasons, they are only for the personal or subjective satisfaction and not for furnishing any remedy to the aggrieved person.

78. The action or non-action of officers placed in such position, the Supreme Court continued to observe, may proceed from enmity on prejudice, from partisan zealor animosity, form favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation.

79. In that vies, the Supreme Court held that the provision in clause 4(3) of the Coal Control Order must be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Art. 19(1)(g) of the Constitution and not coming within the protection afford by clause (6) of the Article.

80. Keeping the principles laid down in the above decision of we go through the impugned provision in S. 14 (4) of the Act, it is clear that the executive authority has been given power to detain the vehicle used in the commission of a prohibition offence till the case is disposed of by the court. It is also seen from that provision that no interim order regarding the disposal of the property shall be passed by the court till the case is disposed of. Thus, the approach to the Court itself for getting redressal with regard to the property detained, has been prohibited by S.14.(4). Even if the argument of Thiru Alagumalai is accepted that the section will not bind the High Court, the fact remains that the subordinate judiciary cannot have power to pass any interim order regarding disposal of such property. ON a consideration of the principles on the test of reasonableness such power given in the hands of the executive in our view will lead to unintended consequences and will definitely affect the economy and interests of the public. There is absolutely nothing in Prohibition policy, the stringent provision contained in S.14 (4) is paradoxical. The vehicle, whether it be a lorry or a car, worth several thousands of rupees will be detained ven for carrying liquor worth about a few rupees. We can understand a deterrent punishment for a repetition of the offence. As it is a vehicle seized for the first time, has to face penal consequences under S. 14 (4) and it has to be detained, if not for several years, at least for several months. Judicial notice can be taken of the delay in filing charge sheets in cases of this nature and also in the disposal of criminal cases pertaining thereto. The enormous loss the nation will be put to by the holding up of such costly vehicles for an unauthorised transport of even negligible quantity of liquor is also a factor to be taken note of. The unreasonableness is writ large in this piece of legislation and this one is a striking example for the saying : 'Wherever the enforcement machinery is sluggish, it is sought to be covered up by plethora of legislations'. Though there is legislative competence for enacting S. 14 (4) such legislation offends the Constitutional rights of an individual to hold property. It is also seen that there is deprivation of property, or the value of property, on the facts and circumstances of the present case. This clearly comes within the meaning of Art. 300-A of the Constitution which states -

'No person shall be deprived of his property save by authority of law'. This deprivation, as we have seen already, is made by a law which does not satisfy the test of reasonableness.

81. For all these reasons, we are of the view that S 14 (4) offends Arts 14, 19(1)(g) and also Art, 300-A of the Constitution of India.

82. Then, we have consider Section 14-A, it reads as follows:-

'14-A Owner of animal, vessel cart or other vehicle deemed to be guilty in certain cases - 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'.

83. It is clear from the wordings in this provision that unless the owner is proceeded against by property prosecution, he cannot be punished. No doubt, the burden is shifted upon the person whose vehicle has been seized as being involved in the commission of the offence.

84. Thiru P Chidambaram learned counsel appearing for some of the writ petitioners, pointed out Section 4 (2) (a) of the Act and state d that it is a rule of evidence and that S. 14-A contemplates the owner of the vehicle to be guilty. S. 14-A cannot be a rule of evidence, since there is already a rule of evidence under S. 4 (2) (a). But, in our opinion S. 4 (2) (a) applies to those who are in possession of a vessel for tapping of toddy or liquor etc. But s. 14-A deals with those whose vehicles are used in the commission of an offence against the Act, No doubt Thiru P.Chidambaram argued that the words 'deemed to be guilty' occurring in the impugned section are not a rule of evidence. However, according to him the words 'shall be presumed to be guilty' will constitute a rule of evidence it was further contended that this section on the face of it, pronounces the accused to be guilty. We are not able to agree with this argument. It is just a shifting of the burden upon the accused person and nothing more. We do not think that such a legislation can be invalidated. Legislations like the Prevention of Corruption Act, Essential Commodities Act and Customs Act are examples for containing a 'deeming' provision and shifting of the burden on to the accused himself.

85. The learned Advocate-General stated that S. 14-A of the Act will come into play only when the owner is proceeded against and made as an accused. According to the learned Advocate-General this section is a clause by itself, making a substantive offence against the owner whose vehicle was used by a third party to carry illicit liquor punishable unders S. 14 (1) (a) of the Act. Although the impugned section has created a legal fiction with a deeming provision just as in other enactment's where penal consequences are made the burden alone is shifted without in anyway impairing the powers of the court. We can read down S. 14-A by interpreting that the owner will be proceeded against only after he has been made an accused. It is also clear from the wording in the impugned section viz. 'and such owner shall be liable to be proceeded against and punished accordingly' that the owner has to be made an accused in the case. Thiru P Chidambaram would say that he has no quarrel with this interpretation and that if the owners is proceeded against after he has been made an accused S. 14-A of the Act can be held to be valid. No doubt, according to the learned counsel this section is a rule of evidence, while 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, S. 14-A deals with possession of illicit liquor and as such this section can be construed only as rule of evidence, since a procedure has been set up as to how the owner of the vehicle 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 S. 14-a to strike it down. As rightly conceded by Thiru P.Chidambaram, and in view of the construction of the section to mean that the owner has to be made an accused before he is proceeded against, S. 14-A is intra vires the Constitution.

86. To sum up, the results of our findings are -

(1) Section 14 (1) and (2) of the Tamil Nadu Prohibition Act 1937 as amended by Tamil Nadu Act 9 of 1979 are reasonable, and they do not violate any of the provisions of fundamental rights guaranteed in the Constitution of India.

(2) Section 14 (4) offends Art. 19(1)(g) and Art. 300-A of the Constitution of India, and it is struck down as ultra vires the Constitution.

87. The writ petitions will stand accordingly allowed in part and dismissed in other respects. No costs.

88. Petitions partly allowed.


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