1. This is a Rule granted by my learned brother, Mr. Justice Panton, and me, calling upon the District Magistrate to show cause why the order complained of should not be set aside, altered or modified and the boat restored to the petitioner on grounds III and IV.
2. Ground III was ' that the liability to confiscation of a conveyance arises only when the owner of such conveyance uses the same for transportation and there being no evidence to that effect in this case the order is bad and fit to be set aside.'
3. Ground IV was ' that the said order which was passed without giving an opportunity to the petitioner, who is the owner of the dinghee, to show cause is improper and without jurisdiction.'
4. Hanumia, majhee, who was recorded as the majhee of the boat was not arrested, but three of the crew were arrested and they were tried before the learned Chief Presidency Magistrate and convicted under Section 9 of Act I of 1878. At the same time the learned Presidency Magistrate made an order confiscating the boat and the opium under the provisions of Section 11 of the above-mentioned Act.
5. The material part of Section 11 is as follows: ' In any case in which an offence under Section 9 has been committed, the opium and other matters ' shall be liable to confiscation. 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 may be concealed, and the animals and the conveyances used in carrying it, shall likewise be liable to confiscation.
6. It is to be noticed that the Act does not say that the conveyance used in carrying the opium shall be confiscated, but the Act provides that the conveyance ' shall likewise be liable to confiscation.' In my judgment that leaves it to the discretion of the tribunal which is trying the case to decide whether, having regard to the facts of the particular case, the conveyance used in carrying the opium should be confiscated.
7. The petitioner in this case had no opportunity of being heard upon the question whether the boat should be confiscated.
8. The learned Magistrate in his explanation upon this part of the case said: ' There is nothing in the section requiring that the owner should be given an opportunity to show cause. If it was intended that this should be done, there was nothing to prevent it being explicitly laid down in the section.'
9. I am of opinion that in cases like this, where there is no improper conduct imputed to the owner, and where, during the course of the case nothing is proved to show improper conduct on the part of the owner, it would be advisable for the Magistrate who is trying the case to give the owner an opportunity of being heard before he comes to the conclusion whether the conveyance should be confiscated.
10. I am not prepared to make the Rule absolute upon ground III, but I am of opinion that the Rule should be made absolute on the ground that having regard to the facts of this case, the owner should have had an opportunity of being heard before the order for confiscation was made.
11. In my judgment, therefore, the Rule should be made absolute and the boat, or the sale proceeds, if the boat has been told, and if the money realized by such sale is still in the hands of the authorities, should be handed to the petitioner, the owner of the boat.
12. I agree.