ORDER
1. This writ petition seeks release of Bajaj Chetak Scooter bearing No. A 11 C 753. According to the petitioner, he is the owner of the vehicle and he had given thesame to his friend Sri B. Subhodhreddy for attending a marriage. Subsequently, he came to know that Subodhreddy had been arrested for an offence under the Prohibition Act and the vehicle has been seized on 26-1-1996. He states that he made a request to the Prohibition and Excise Inspector to return the vehicle to him as he is the owner and he was not connected with the offence, but he was informed that it was not possible as there is no provision either under the Prohibition Act or in the Excise Act for interim custody of the vehicle pending confiscation proceedings. He, therefore, filed this writ petition on 14-3-1996 seeking the release of the vehicle. An Additional affidavit has now been filed stating that in response to a written application dated 18-3-1996, the Deputy Commissioner passed an order dated 23-3-1996 rejecting his application. It is, therefore, stated that even the alternative remedy has been exhausted and, therefore, a direction should be given for the release of the vehicle.
2. When this writ petition came up for hearing along with similar cases, the learned Government Pleader for Prohibition submitted that writ petitions for release of vehicles seized under the Prohibition Act, were not maintainable. He took me through the provisions of the Act and pointed out that in October, 1995 there has been an amendment to S. 13 bringing it on a par with the provisions of S. 46 of the A. P. Excise Act with the result that the Deputy Commissioner of Prohibition had the exclusive power to have custody and to order confiscation of vehicles involved in the prohibition offences. He also submitted that inasmuch as S. 13-E, analogous to S. 46-E of the Excise Act, barred the jurisdiction of the Courts with reference to the release of vehicles and S. 13(6) conferred powers of a Civil Court on the Deputy Commissioner of Prohibition, he alone had the power to release the vehicle. In the alternative, it was submitted that the power to confiscate carried with it the incidental or ancilliary power to grant interim custody pending confiscation proceedings, and relied on the decision of the Supreme Court in I.T.O. v. Mohd. Kunhi, AIR 1969 SC 430.
3. The learned counsel for the petitioner submitted that there are already decisions of this Court holding that the writ petition alone is maintainable, as the statute has not specifically conferred any power on the Deputy Commissioner of Prohibition to grant interim custody of vehicles pending confiscation proceedings. It was also submitted that even if it was assumed that an alternative remedy was available, it was not adequate as the facts of this case itself disclose as there was complete reluctance on the part of the Deputy Commissioner to release the vehicle and there is no application of mind to the relevant facts such as the claim of the petitioner that he was not involved in any prohibition offence. The learned Government Pleader submitted that according to the latest decision of the Bench of this Court in Writ Appeal No. 191 of 1996, it is necessary that the petitioner should move the competent authority before he could come to the High Court by way of a writ petition and if at all there is any grievance about the administrative delays, he would advise the department to stream line the procedure in accordance with any guidelines the Court may lay down.
4. Section 13 of the Prohibition Act, as it stood originally, provided for confiscation by the Court after the trial for the prohibition offence. At that stage, applications were being made to the Magistrate for the interim release of the vehicle. The department resisted these applications and the matter came up by way of a criminal petition before R. M. Bapat J. the decision dated 25-7-95 in J. Palnitker v. State of A.P., 1995 (3) Andh Legal Dec 80, the learned Judge pointed out that the A.P. Prohibition Act is a complete code and, therefore, when a person is charged under that Act, the Magistrate has all the powers under the Act to deal with the accused and the articles used in the commission of the offence. When another matter came up before B. K. Somasekhara, J., by order dated 1-11-1995 in Writ Petition No. 23179 of 1995 and batch, the learned Judge came to the conclusion that the owner of the vehicle can approach either the Magistrate or the authority as both had the power to release the vehicles. He also referred to the decision in B. K. Patil v. State of Mysore, to emphasise that the release of the seized property would be the rule and the rejection may be an exception, and the decision of this Court in Venu Naidu v. Joint Collector, to state that it had never been seriously disputed that the High Court had the jurisdiction to interfere in such matters. Thereafter when another matter came before S. R. Nayak, J., a preliminary objection was again taken as to the maintainability of the writ petition. But, the learned Government Pleader admitted that there was no provision in the Act specifically empowering the Deputy Commissioner of Prohibition to release the vehicles pending confiscation proceedings. Recording this, the learned Judge by his order dated 14-11-95 in writ petition No. 25215/95 held that writ petitions are maintainable and the petitioners need not approach the Deputy Commissioner of Prohibition first, before filing the applications under Art. 226 for release. After these elaborate decisions of the three judges, applications were being regularly filed for release of the vehicles, and, initially, reference to the above cited judgment of S. R. Nayak, J., used to be given while entertaining the writ petitions and ordering the release of the vehicles on furnishing bank guarantee. But, once it became a matter of routine, orders were being passed by merely mentioning that the writ petition was maintainable, without giving reference of the judgment of S. R. Nayak, J. One of those orders were taken up by the department on appeal and it was in that writ appeal No. 191/96 that the Bench held that the petitioners should invariably approach the authority first, before filing the writ petitions.
5. I am thankful to the learned Government Pleader for Prohibition and Excise, for making me alive to the fact that inarticulate assumptions on which judges proceed may not be shared by their peers, and also the fact that even the counsel appearing for Government, nowadays, take advantage of minor omissions to win a point without bringing to the notice of the judge, the assumptions on which the cases were dealt with earlier and the decisions already given by other judges, which are certainly known to them. The case which was taken up on appeal (Writ Appeal No. 191 of 1996) was practically a consent order based on the decision of S. R. Nayak, J., and it is a pity that it was not placed before the Bench which heard the appeal, by either party. To top it, the learned Government Pleader stated before me that Section 13 of the Prohibition Act had been amended in October, 1995 and the said amendment was not noticed by B. K. Somasekhara, J., and S. R. Nayak, J., and further, that the department had not filed any appeals against those two judgments. It is because of this distortion in litigation that I felt it necessary to have a thorough discussion of the provisions relating to the confiscation and interim release of vehicles.
6. Provisions relating to confiscation of vehicles involved in any offence, is not new but what is new is that the present S. 13 alongwith 13-A to 13-F deviate considerably from the well known pattern of such provisions. Compare S. 115 of the Customs Act which provides that any conveyance used as a means of transport in the smuggling of any goods shall be liable for confiscation unless the owner of the conveyance proves that it was so used without his knowledge or the connivance of the owner himself or his agent or the person incharge of the conveyance. Similarly, the Essential Commodities Act, by S. 6-B, provides that if the owner proves that the vehicle was used for carrying the essential commodities without the knowledge or connivance of the owner or his agent or the person incharge and they had taken all reasonable and necessary precautions against such use, no order of confiscation should be made. The Andhra Pradesh Excise Act as well as the present provisions of the Prohibition Act, which are in identical terms, do not contain this protection to innocent owners of vehicles misused by others. Both the Customs Act as well as the Essential Commodities Act provides for an option to the owner to pay an amount not exceeding the value of the goods smuggled or carried, as fine in lieu of confiscation. Thus, the vehicle itself will not be lost to the owner merely because the goods of a petty value are transported against the prohibition. The Excise Act and the Prohibition Act, however, do not contain such a provision, leading to the presumption that any contravention of the excise or prohibition law will lead to the confiscation of the vehicle itself. To illustrate, if a passenger in an aeroplane happens to carry a dram of whisky in his hip-pocket, the entire aeroplane is liable to be confiscated, though the owner of the aircraft or the pilot may be quite unaware of this contravention. Similarly, a high placed official may lose his car if his driver gave a lift to an offender. Both the Customs Act and the E.C. Act provide for notice and opportunity to the owner before an order of confiscation is made, but in the case of prohibition and excise acts, there is a provision of notice only to the person from whom the property is seized. Lastly, confiscation proceedings are interlinked with offences under the Customs and E.C. Act as the confiscation is a consequence of conviction of the offence. Strangely, under the A.P. Excise Act and the Prohibition Act it is provided that the result of criminal proceedings, either acquittal or conviction or otherwise, will have no bearing on the order of confiscation passed under the Act. This will lead to a situation where the owner of the vehicle is vicariously punished for an offence in respect of which the accused himself is acquitted. In other words, there appears to be a creation of an offence by implication in respect of a owner even if he has no knowledge of the offence i.e., misuse of his vehicle. As observed by the Supreme Court in Harakchand v. Union of India, :
“The maxim sui facit per alium facit per se (he who acts through another acts through himself) is not generally applicable in criminal law. The principle of vicarious liability is made applicable in certain exceptional cases. Section 88 of the Gold (Control) Act (1968) imposed vicarious liability on the dealer and makes him responsible for the contravention of any provision of the Act or rule or order by any person employed by him in the course of such employment. The rational basis in law for the imposition of vicarious liability is that the person made responsible may prevent commission of the crime and may help to bring the actual offender to book.”
In Reynolds v. G. H. Austin and Sons Ltd. (1951) 2 KB 135, Humphreys, J., said :
The rule that where there is an absolute prohibition against the doing of an act, absence of scienter affords no defence, does not extend to the case of a defendant charged with having done an act lawful in itself but which had become unlawful as the result of some action entirely unknown to him by some other person not his servant or agent.
In the same decision, Devlin J., said :
A man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organisations up to the mark. But it is a safe general principle to follow that where the punishment of an individual will not promote the observance of the law either by that individual or by others whose conduct he may reasonably be expected to influence, then, in the absence of clear and express words, such punishment is not intended.
Since the section provides that the Deputy Commissioner may order confiscation and there is also a provision for giving opportunity to the person from whom the vehicle is seized, such confiscation is not obligatory but discretionary (see State of M.P. v. Azad Bharat Finance Co., . Therefore, these provisions may have to be read down if the vicarious liability of the owner is to be sustained. Considering al these aspects, I have already admitted a writ petition (W.P. No. 2338 of 1996) challenging the validity of the confiscation provisions themselves.
7. In a case of exercise of powers to grant interim relief, one of the matters for consideration is the prima facie case in the main matter as to whether the vehicle is likely to be ultimately confiscated and what would then be the liability of the petitioner. Looked at this point of view, it appears to me that the confiscation of a vehicle for a misuse without the knowledge of the owner is unlikely to be upheld and, therefore, the continued detention of the vehicle is uncalled for.
8. As observed by this Court in Venu Naidu’s case (supra), it has never been seriously disputed that this Court has powers under Art. 226 to entertain applications for release of vehicles pending confiscation proceedings. S. R. Nayak, J., had proceeded on the admission of the learned Government Pleader that the Deputy Commissioner or Prohibition was not specifically given any powers to release the vehicles during the pendency of confiscation proceedings. In the affidavits, it had been alleged that the Deputy Commissioner of Prohibition was not entertaining the applications on the same assumption. It is no doubt possible to sustain the power of the Deputy Commissioner as incidental or ancilliary to the main power to confiscate the goods. As observed by the Supreme Court in Kunhis case (AIR 1969 SC 430) (supra) that even when the Act is silent, it impliedly grants the power of doing all such acts or employing such means as are essentially necessary to its execution and the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory. It is a notorious fact that the vehicles which are seized are not maintained in such conditions as to be restored to the owner without any damage. It is well known that the administrative departments do not have the wherewithal to protect the seized goods while in custody. That is why the Supreme Court has observed in Patils case (1977 Cri LJ 1141) (supra) that the release of the seized properties would be the rule and the rejection may be an exception. Hence, I am inclined to accept the statement of the learned Government Pleader that the Deputy Commissioner of Prohibition does have an incidental or ancilliary power to give interim custody of the vehicle pending the confiscation proceedings, but I do not accept the alternate argument of the learned Government Pleader that because the jurisdiction of the Courts is barred that power must be considered to be conferred on the Deputy Commissioner. The provisions of Ss.46 and 13 of the two Acts barring the powers of Civil Court refer only to receiving evidence and cannot encompass such interlocutory directions. It is only by reason of the amendment by which the jurisdiction of the criminal courts was barred that the learned Government Pleader is prepared to accept that the Deputy Commissioner may have the power to grant interim custody which was being exercised by the criminal courts earlier and has argued that the decisions of B. K. Somasekhara, J., and S. R. Nayak, J., are per incuriam. But, this amendment was not brought to the notice of the Bench also to invite a decision on a question whether the bar of jurisdiction of criminal courts would by a necessary implication confer the same jurisdiction on the Deputy Commissioner. As I see it there seems to be a change in the attitude of the department and, as the learned Government Pleader put it, a ventilation of their grievance that they were not approached first before approaching the High Court. While earlier they were saying that they cannot entertain any application, suddenly they seem to think that they alone should entertain the applications so that they can reject them. The learned Government Pleader also added a rider to the effect that by rejecting such applications, the vehicles could be kept out of circulation to further the prohibition policy. I am unable to
see any basis for this either in the provisions of the Act or in the prohibition policy except the observations of the Bench. Such justification by hind-sight may not fit in with the general run of cases where the owners are blissfully unaware of the offence committed by others by misusing their vehicles. There are cases where passengers carry bottles of whisky in buses and contract carriages or stage carriages, cases where passengers take liquor in their luggage while travelling in taxis or autos; there are also cases where a person to whom lift is given as pillion riders happen to have concealed on his person some liquor; and in all these cases where the owner is not at all aware of the commission of offence, his vehicle is seized and put out of circulation. It is because of this that there are already decisions of this Court such as an order dated 29-4-1995 in Writ Petition No. 6330 of 1995 by which guidelines have been given regarding seizure and detention of stage carriage buses. Pursuant to that decision, even a circular has been issued in ref. No. 1736/95/DPE/B2, dated 29-7-1995 by the Commissioner of Prohibition and Excise pointing out that while buses are not immune from seizure or confiscation, detention of those buses should not cause discomfort to other passengers and the buses should be allowed to pay upto its destination, and unless there is an objective satisfaction of the complicity of the owner, it should not be confiscated or even detained if it could be released after obtaining an undertaking to produce the vehicle when required. This shows that the Courts have taken judicial notice of the possible harassment of the owner by reason of the unbriddled power conferred by the statute.
9. The volte face on behalf of the learned Government Pleader to the effect that the judgment of S. R. Nayak, J., is per incuriam and that the Deputy Commissioner has the power to release the vehicles pending confiscation proceedings, therefore, appears to be more in the interest of securing for the department control over the confiscated vehicles rather than a desire to follow the established and fair procedure in the analogous acts well known to the department for the purpose of seeing that innocent owners are not penalised vicariously and their vehicles are not unnecessarily devalued in the process. However, now that the learned Government Pleader has volunteered to say that the procedure will be streamlined in order to see that the alternative remedy is effective, I am of the opinion that certain guidelines would be in order so that the owners of the vehicles will know what they are in for and when they can expect proper disposal of their applications. Keeping in mind the fact that the constitutional validity of the provisions are under challenge. I have to consider the balance of convenience in these matters. On the one hand, if the vehicle is released and subseqeuntly it is held that the vehicle is not liable to confiscation, the department would not lose anything; whereas the worth of the vehicle will be preserved from unnecessary damage and deterioration. On the other hand, if the vehicle is released, but ultimately it is found that it is liable to confiscation, there should be some security for the value of the vehicle which canbe realised for the Government. But, if the owners are required to deposit security equal to the value of the vehicle, it could be an enormous burden, for even bank guarantees will carry charges which will be disproportionate to the waiting period. Looking into the provisions of the analogous Acts, it appears to me that ultimately this section could be upheld only if the owner could be given an option to redeem the vehicle by paying a tine equivalent to the goods which were carried in the vehicle and that too, only if he is actively involved in the offence. This is particularly so in the case of commercial vehicles like stage carriage buses or contract carriage buses and this would equally apply to taxis and autorickshaws. It is only in the case of private vehicles where the owner himself is carrying the goods or the vehicle is modified to conceal the goods that a different view could be taken. In the circumstances, I am of the opinion that the following guidelines can be usefully adopted by the department :
i) in every case of seizure, full particulars of the owner should be obtained from the driver of the vehicle and notice should be invariably given to the owner immediately;
ii) in the case of commercial vehicles, such as buses, taxis and autos, there should be interim release of the vehicle immediately and in any case within 24 hours;
iii) in the case of such commercial vehicles, ar undertaking to produce the vehicle and not to alien ate the same should be sufficient unless there is actually evidence to show that the driver had actively connived in the offence;
iv) in the case of private vehicles also, the name and other particulars of the owner should be obtained from the driver and a specific notice should be given to such owner/s immediately;
v) the security for production of the vehicle not exceeding 10% of the value of the vehicle should be sufficient;
vi) perhaps, it is possible to notify that in the case of cars, an amount of Rs. 10,000/-; in the case of scooters, Rs. 2,000/-; and in the case of mopeds, Rs. 1,000/- should be deposited either by cash or by bank guarantee and on such deposit the vehicle would be immediately released. This should actually relieve the congestion in the yards where such vehicles are dumped;
vii) in every case of application for release of the vehicle, there must be a speaking order whenever it is decided not to release the vehicle so that the owner can take up the matter further.
In view of the submission made by the learned Government Pleader, I am hopeful that a circular similar to circular No. 1736/95/DPC/B2, dt. 29-7-95 would be issued in respect of taxis, autos and other private vehicles and such circular will also be displayed in the police stations and offices of the prohibition staff, so that unwary owners would know what to do in case their vehicles are seized because of misuse by others.
10. On the facts of this case, it is obvious that the impugned order refusing to release the vehicles made without application of mind to the matters discussed above. I, therefore, deem it fit to set aside the impugned order and direct Deputy Commissioner to reconsider the application in the light of the guidelines given above and dispose of the application within one week from the date of receipt of this order.
11. The writ petition is disposed of. No costs.
12. Order accordingly.
