SHAJAHAN Vs. STATE THROUGH THE DEPUTY SUPERINTENDENT OF POLICE PROHIBITION AND ENFORCEMENT WING NAGAPATLINAM

JUDGEMENT

(1.) PETITIONERS in Criminal O.P.No.11371 of 1992 are A-2 and A-3 in C.C.No.2722 of 1992, pending on the file of the Judicial Magistrate No.I, Mayiladuthurai. Petitioner in Criminal O.P.No.12369 of 1992 is A-1 in the afore stated calendar case. In respect of an occurrence which had taken place at or about 4.00 a.m. on 4.1.1992, two final reports were filed, one dated 13.1.1992 and the other dated 7.7.1992. In the first final report, five persons have been shown as accused and they are flow arrayed as A-4 to A-8 in the calendar case afore stated. That final report will show that on 4.1.1992 at or about 4.00 a.m. at Mayiladuthurai Sirkali, at Anathandavapu-ram road junction, Balakrishnan (A-4), driver of the mini lorry bearing registration number PYT 1512, with other accused, Rajendran, Chinnaswamy, Natarajan and Sekar (A-5 to A-8) who are stated to be cleaners, had transported 90 gunny bags, each bag containing 50 bottles of coloured arrack, the capacity of each bottle being 500 ml. Initially, charge-sheet was filed by the Sub-Inspector of Police (Law and Order), Mayiladuthurai. Since the initial investigation was felt to be not thorough, Inspector-General of Police (Prohibition), Madras, directed the Deputy Superintendent of Police (P.E.W.), Nagapattinam, to carry out further investigation by visiting Pondicherry and Karaikkal, Union Territories, and on completion, forward a final report under Sec.173(8), Crl.P.C. The Deputy Superintendent of Police (P.E.W), Nagapattinam, was also directed to interrogate the owner of Arul Pharmacy, who has now been arrayed as A-9 in C.C.No.2722 of 1992. The object was also to find out whether there was any evidence indicating complicity of the owners of the vehicle. In pursuance of the directions of the Inspector-General (Prohibition), Madras, after informing the trial Magistrate, further investigation was conducted by the Deputy Superintendent of Police, Prohibition Enforcement Wing, Nagapattinam, during the course of which he examined one Thirumalai, son of Srinivasan, who is the Manager of M/s.M.O.H.Canter Parcel Service situated at Karaikkal. It appears that during investigation A-9 was also examined.

(2.) IN these petitions, we are concerned only with A-l to A-3 and not about other accused. The second investigating officer forwarded an amended final report in which petitioners are stated to be liable under Sec.4(1)(a) read with Sec.14-A of the Tamil Nadu Prohibition Act. A-4 to A-8 in the amended charge-sheet, who were shown as A-l to A-5 in the initial charge-sheet, are shown to be liable under Sec.4(1)(a) of the said Act. A-9, the owner of Arul Pharmacy, has been sought to be made liable under Sec.4(1)(a) read with Sec. 12 of the Tamil Nadu Prohibition Act. The amended charge-sheet shows that on 3.1.-1992, A-l (petitioner in Criminal O.P.No.12369 of 1992), managing partner of Canter Parcel Service, with the concurrence of A-9 had handed over the lorry to the latter, knowing that he intended to transport spurious liquor mixed with chloral hydrate styled as ?Sandanasavam? (an ayurvedic preparation) using spurious transport documents of Lakshmi Agency, No.55, Bharathiar Road,Karaikkal. The second final report also states that A-9 had instigated A-4 to A-8 to load the bottles, seized from the vehicle from door No.14, Aswath Illam, Uday-ankulam, Koilpathu, Karaikkal, and take them to Tamil Nadu.

(3.) BOTH these petitions have been preferred under Sec.482, Crl.P.C. to call for the records in C.C.No.2722 of 1992 on the file of the Judicial Magistrate No.I, Mayiladuthurai, and quash the pending prosecution in so far as it concerns the petitioners. Mr.N.Natarajan, learned Senior Counsel appearing on behalf of the petitioners in both these petitions, did not dispute that A-1 is the managing partner and A-2 and A-3 are partners of the said transport organisation. He does not also dispute that the mini lorry bearing registration number PYT 1512 belongs to the said transport organisation and it had been hired out to A-9, through the manager of the firm, Thirumalai, examined by the prosecution during the course of further investigation by the second investigating officer. He contended that in the usual course of business, the mini lorry was hired to A-9 who has similarly taken this vehicle on earlier occasions. The thrust of his argument was, that the petitioners are sought to be made liable, in view of Sec. 14-A of the Act, onafiction, which cannot arise at this stage, if the provisions contained therein are read in conjunction with Sec.14(1) and (2) of the Act, relating to the manner in which confiscation of a vehicle could be ordered. In other words, the argument was that Sec.14-A of the Act does not create any offence, but contains only a rule of evidence. Expatiating this contention, he argued that under Sec.14(1) of the Act, the Court is empowered to order confiscation of the vehicle at the time when the offender was convicted or acquitted. Again, under Sec.14(2), if the court decides during the trial of a case for an offence against the Act, that anything was liable to confiscation, the court shall so order confiscation. However, at that stage, under the proviso, the vehicle shall not be confiscated under Sub-secs.(1) and (2) of Sec. 14, without hearing the owner of the vehicle and any person claiming any right thereto. If the court gets satisfied that the owner and such person had exercised due care in the prevention of commission of such an offence, obviously confiscation cannot be ordered. The submission was that the question of confiscation of the vehicle can arise only after application of judicial mind either during trial of case for an offence under the Act or at its termination when the offender is convicted or acquitted. In that background, he invited the attention of this Court to the provisions of Sec. 14-A of the Act which reads as follows: ?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 emphasis was that unless the court arrives at a decision under Sec. 14(1) or 14(2) of the Act, that the vehicle concerned is liable to confiscation, the question of deeming the owner of the vehicle to be guilty will not arise. The thrust in this submission was that the investigating agency cannot array the owner or other person concerned with the vehicle, as an accused initially, on the basis of the deeming provision under Sec.14-A of the Act, which can arise only after application of judicial mind under Sec. 14 (1) or (2) of the Act. He pointed out that the basis for this prosecution against the petitioners is restricted to the statement of Thirumalai and Thirumalai alone, recorded during investigation.