Order These are two petitions involving the same point for consideration filed against the orders made by the learned Sixth Presidency Magistrate, Saidapet, in C.C.Nos.4177 and 4170 of 1954 respectively confiscating a bicycle in each case which was used for committing an offence under the Madras Prohibition Act X of 1937. The facts leading to Cr.M.P.No.51 of 1955 are as follow: The accused Narayanaswami, aged 23 years, and son of Manicka Naicker residing at No. 33, Raman Street, near Pandy Bazaar, Mambalam, was found in possession of two water bottles and three bottles containing 42 drams of arrack in all in a bag tied to the carrier of a bicycle at Old Mambalam Road on 4th November, 1954, at about 12-30 p.m. On his being put before Court he pleaded “guilty” to a charge under section 4(1)(a) of the Madras Prohibition Act. The learned Magistrate convicted him as charged and sentenced him to pay a fine of Rs.30 and directed the confiscation of the bottles and the destruction of the bag in which the bottles were kept as well as the arrack inside the bottles and also the confiscation of the cycle “since it was used for the commission of the offence.” Thereafter the petitioner before us Kesavalu Naidu has come forward with this petition stating that he is the owner of Sai Baba Cycle Works at No. 98, Seven Wells Street, of which the license is in the name of his wife Mrs.Radhabai, that he is hiring out eight cycles that on 4th August, 1954, one Balaraman took one of the cycles which is the subject-matter of confiscation, that that Balaraman appears to have passed it to one Tiruvengadam from whom the accused Narayanaswami appears to have taken it and that inasmuch as the petitioner hired out the cycle to Balaraman, it should not be confiscated and that it should be returned to the petitioner Kesavalu Naidu. The other Petition Cr.M.P.No.53 of 1955 is filed by one Subbiah and arises out of C.C.No.4170 of 1954 in which one Varadan was convicted and sentenced to pay a fine of Rs.20. That Varadan was found in possession of 12 drams of arrack which was being transported on a bicycle. On his being produced in Court he had admitted the offence. That Varadan was found in possession of 12 drams of arrack which was being transported on a bicycle. On his being produced in Court he had admitted the offence. The learned Magistrate in addition to the order of destruction of the bottles and the liquor, directed the bicycle to be confiscated “since it was used for the commission of the offence.” Thereupon the petitioner K. Subbiah has come forward with this petition that he is running a cycle shop in the name of his wife Kiliambal under the name and style of Modern Cycle Works at No. 2/4, Eldams Road, Teynampet, that he is hiring out five cycles and one such was hired out on 3rd November, 1954 to Varadan, a vegetable vendor in Teynampet market, for an hour as he wanted to go for a condolence that subsequently the petitioner learnt of the conviction of that Varadan and confiscation of the cycle and that inasmuch as the cycle was hired out in the usual course of business it may be ordered to be returned to him. I may mention here that this type of claim has almost become an almost type design one and one such case disposed of by me in Cr.M.P.No.979 of 1954 is reported as Sheik Ismail, In re1. The short order which I made therein and which is relevant for the disposal of the present petitions is as follows: “The bicycle in this case was undoubtedly used for committing the offence under the Madras Prohibition Act (X of 1937) and therefore in terms of section 13 of that Act it was properly confiscated by the Magistrate. The circumstances under which that cycle came to be lent to the accused by the petitioner before us are neither here nor there. It is certainly open to the petitioner to take appropriate proceedings against the accused for reimbursement of the cycle which, according to him was lent for one purpose and has been found to be used for another purpose, viz., for committing the offence under the Madras Prohibition Act of 1937. In fact it is only on account of the availability of the facilities by hiring out these vehicles that illicit liquor is practically sold like milk in various parts of Madras. Therefore, the Magistrates must vigorously put down, the prohibition offences by confiscating the vehicles used for the purpose. In fact it is only on account of the availability of the facilities by hiring out these vehicles that illicit liquor is practically sold like milk in various parts of Madras. Therefore, the Magistrates must vigorously put down, the prohibition offences by confiscating the vehicles used for the purpose. The order passed is thoroughly proper, and I confirm it and dismiss this petition.” There is no difficulty in regard to the law on the subject because whenever in terms of section 13 of the Madras Prohibition Act in any case in which an offence has been committed against the said Act, animals, vessels, carts or other vehicles used to hold or carry the liquor, drug, materials, etc., are liable to be confiscated. The term “liable to confiscation” imports not that confiscation is automatic but that the Court may impose it as an additional punishment in suitable cases exercising a sound discretion. Sadashiv, In re1, Pandharinath Pundlik, In re2, In re Abdul Azeez 3, Bhimji v. Emperor 4. The difficulty arises therefore only in the imposition of this punishment. In regard to the mode of exercising this punishment there is no decided case explaining the principles of its exercise under the Madras Prohibition Act. But fortunately for us, aid can be derived from the case-law in regard to analogous provisions in other Acts, viz., section 11 of the Opium Act, section 65 of the Abkari Act I of 1886, section 43 of the Madras Forest Act V of 1882 and section 99 of the Bombay Prohibition Act XXV of 1949. It is unnecessary to consider similar provisions in other minor Acts like the Ancient Monuments Preservation Act (1904), section 17(3) -confiscation; Arms Act (1878), section 24-confiscation; Explosives Act (1884), sections 10 and 11-forfeiture and distress of vessel ; Merchandise Marks Act, (1889), section 9-forfeiture; Metal Tokens Act (1889), section 4(2)-forfeiture; Penal Code, sections 126, 127 and 263-A(2)-forfeiture; section 169-confiscation; Petroleum Act (1934), section 24-confiscation; Poisons Act (1919), section 6(2)-confiscation ; Public Gambling Act (1867), section 13 ; Central Excises and Salt Act (1944), sections 10 and 28-confiscation. Section 11 of the Opium Act states that in any case in which an offence under section 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 may be concealed, and the animals and conveyances used in carrying it, shall likewise be liable to confiscation. The case-law under this section may be summarised as follows:The animals and conveyance used in carrying contraband opium would not be liable to confiscation if hired for the purpose and if the owner of such animals or conveyance has no knowledge or intention or interest in such transaction or was not in any way implicated in the offence. An order was made under section 11 of the Opium Act confiscating a boat in which some opium had been found. Held that the order should not have been made without giving the owner of the boat an opportunity of being heard. Section 11 of the Opium Act does not contemplate that every receptacle, such as a ship or a house or a carriage in which a small quantity of opium may happen to be found is liable to confiscation; the liability arises from the owner of such conveyance, using the conveyance for the purpose of transporting opium. A person cannot be made liable because his servant makes use of his private carriage as a depository for his private stock of opium. Shaik Abdul Rahman v. Emperor 5. Where no improper conduct was imputed to the owners of the boat an order confiscating the boat under section 11 of the Opium Act was set aside; Chedi Mala v. The King Emperor 6. A boat in which excisable articles are carried in contravention of the Excise Law should not be confiscated unless it is found that the owner of the boat was in some way implicated in the offence under the Excise Law. Golap Saha v. Emperor 7. A boat in which excisable articles are carried in contravention of the Excise Law should not be confiscated unless it is found that the owner of the boat was in some way implicated in the offence under the Excise Law. Golap Saha v. Emperor 7. Under section 11 of the Opium Act, a conveyance used for the purpose of carrying opium is liable to confiscation, which means that the section 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 may be confiscated; Mohamed Keshab v. Emperor 8. An order of confiscation in respect of a motor car used in smuggling opium unless an opportunity is given to the owner of the car to prove that he had no knowledge or reason to believe that it was used for smuggling is bad; Manghan Das v. Rahim Bux 9 .Cash found on a person convicted of illegally importing opium into British India under section 9(c ) of the Opium Act cannot be confiscated under any provisions of the Act. Under section 517, Criminal Procedure Code, only such property can be attached as is proved to have been used in the commission of an offence. Where a person who has illegally imported opium is convicted of an offence under section 9(e) of the Opium Act and monies are found on him which he had received from a person to whom he proposes to sell the imported opium, the money cannot be attached under the provisions of section 517, Criminal Procedure Code, as it cannot be said to have been used in importing the opium: Gobinda Ram v. Emperor 1. In In re G.N. Chakrapany Chettiar 2, Horwill, J., held as follows: “The petitioner entered into a hire-purchase agreement with the accused, who used a car for transporting large quantities of contraband opium and ganja. The Magistrate confiscated not only the drugs found in the car but the car itself. The petitioner objected ; but his objections were overruled with the remark that it was open to Messrs. Chakrapani Chetty & Sons (petitioner) to seek his remedy under the hire purchase agreement in a Civil Court. I doubt very much whether Messrs. Chakrapani Chetty & Sons would have any remedy against the Government in a Civil Court under their hire-purchase agreement. Chakrapani Chetty & Sons (petitioner) to seek his remedy under the hire purchase agreement in a Civil Court. I doubt very much whether Messrs. Chakrapani Chetty & Sons would have any remedy against the Government in a Civil Court under their hire-purchase agreement. The Magistrate has a discretion under section 11, Opium Act, to confiscate any conveyance used in carrying contraband opium ; and I do not think that the exercise of that discretion could be called in question in a Civil Court. That could be done only by the Courts which have appellate or revisionary jurisdiction over the Magistrate. If the petitioner’s case is true that he had received only one instalment towards the purchase of the car and had no reason at all to suspect that his car was being used for transporting opium it would be, I think, very hard on the petitioner to have his car confiscated. In similar cases, it has been held that a conveyance ought not to be confiscated unless the owner knew or had reason to believe that his vehicle was likely to be used for such a purpose. That seems to be a very fair test for the Magistrate to apply when he has to consider whether or not he should order the confiscation of the vehicle. As the Magistrate has not considered this, I think his order should be set aside. The petition is, therefore, allowed, the order of confiscation of the petitioner’s car set aside, and the Magistrate ordered to consider afresh the question whether the car should be confiscated. He should permit evidence to be let in by the prosecution and by the petitioner.” Section 65 of the Abkari Act I of 1886 states, that in any case in which an offence has been committed under the said Act, the animals, carts, vessels or other conveyances used in carrying any liquor or intoxicating drug, shall likewise be liable to confiscation. The case-law under this section may be summarized as follows: The Madras Abkari Act I of 1886 was preceded by Mardas Act III of 1864 and under section 26-B thereunder a Police Officer had power to seize liquor with vessels, packages, and coverings and the animals and conveyances used in carrying it. He was then to take them before the Magistrate. He was then to take them before the Magistrate. Section 26-B authorized the award of one-half of the fine levied to the officer or officers who apprehended the offender or seized the articles, and also one-half of the proceeds of the sale of liquor, vessels, packages, conveyances, stills and other articles confiscated under the said Act. Under section 17 animals were liable to confiscation by the Collector, and in all cases in which there had been a conviction before a Magistrate and in which also by the order of the Collector any property had been confiscated, such property became property confiscated under the Act within the meaning of section 26-B. In the Queen v. Sakiya 3, a Bench of this Court held that the confiscation of animals did not appear to be within the authority of the Magistrate, having regard to the language of section 26-B and that in all magisterial cases falling for disposal under that section, the proceeds of whatever had been confiscated by the Collector including animals, would be available for distribution in the manner herein before described. In the Queen v. Thathayya 4 , a Bench of this Court held that neither under the provisions of the Madras Abkari Act III of 1864 nor under the provisions of the Abkari Amendment Act V of 1879, an order by a Magistrate confiscating a boat used for carrying liquor without a valid permit is legal because under section 17 the Collector alone can confiscate and not the Magistrate. This defect was remedied in Act I of 1886 which has been reproduced above and under that Act the Magistrate could order the confiscation, as an additional punishment, of all animals, carts, vessels or other conveyances used in carrying the liquor or intoxicating drug. In In re Ponnuswami Pillai 5, a Bench of this Court held that a Magistrate who adjudges confiscation has power to direct the sale or destruction of the confiscated article. Under section 43 of the Madras Forest Act V of 1882 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, vehicle and cattle used in committing such offence shall be liable by the order of the convicting Magistrate, to confiscation. Such confiscation may be in addition to any other punishment prescribed for such offence. Such confiscation may be in addition to any other punishment prescribed for such offence. The case of importance under this section is In re Ardhanari Iyer 1, where it was held that the words “shall be liable to confiscation” in section 43 of the Madras Forest Act cannot be construed as being identical to “shall be confiscated” and that the section does not make confiscation imperative on the Court and to hold that the Court has no option but to confiscate is opposed to the language of section 43. Section 99 of the Bombay Prohibition Act XXV of 1949 runs as follows: “When during the trial of a case for an offence under this Act, the Court decides that anything is liable to confiscation under the foregoing section 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 confiscation or in the case of any article other than an intoxicant, hemp, mhowra flowers or molasses, give the owner an option to pay fine as the Court deems fit, in lieu of confiscation: Provided that no animal, cart, vessel or other conveyance shall be confiscated if the owner thereof satisfies the Court that he had exercised due care in preventing the commission of an offence.” I may complete this analysis by pointing out that in Abdul Azeez, In re2, the cart used for conveying hides was ordered to be confiscated in a prosecution under section 65 of the City Police Act when there was no satisfactory explanation for the hides carried. The High Court ordered delivery of the cart, to the accused from whom it was seized or to any other person claiming to be entitled to it. In Phula Singh v. Emperor 3, a car seized in a prosecution under section 338, Indian Penal Code, was ordered to be released. In Criminal Revision No.1103 of 1950 Somasundaram, J., directed in the circumstance of that case seizure of the car used for the commission of an offence was not warranted. In Venkataraya Chetti, In re4, confiscation of transported jaggery was held not justifiable unless the lorry driver transported with knowledge or connivance or criminal negligence of the driver of the lorry. In Criminal Revision No.1103 of 1950 Somasundaram, J., directed in the circumstance of that case seizure of the car used for the commission of an offence was not warranted. In Venkataraya Chetti, In re4, confiscation of transported jaggery was held not justifiable unless the lorry driver transported with knowledge or connivance or criminal negligence of the driver of the lorry. In Suleman Issa v. State of Bombay 5, the Supreme Court held in a case arising under section 61-E, Bombay Police Act, corresponding to section 65, Madras. City Police Act, that confiscation is not necessary to be ordered in every case. The trend of these decided cases is that if the accused be only a servant or bailee an opportunity should be given to the orderer or bailer to establish after notice to him that the offence or contravention took place in spite of all reasonable precautions taken by him to prevent the contravention and that the offence took place in spite of such precaution in which case it could be returned to him. The net result of this analysis is that though the vehicle used for transporting prohibited liquor can be confiscated in terms of section 13 of the Madras Prohibition Act, it is not imperative for the Court to do so but merely discretionary; secondly though strictly speaking the remedy of the owner of the vehicle is to proceed against his hirer who has put it to illegal purpose, for the recovery of the value thereof, equity, justice and good conscience requires that this provision should be used in a humane and just manner. The proper course for the Magistrate who intends to confiscate the vehicle is first of all to ascertain from the accused whether the vehicle belongs to him or to another and then if the Magistrate believes that the vehicle belongs to the accused he can straightaway order its confiscation. The proper course for the Magistrate who intends to confiscate the vehicle is first of all to ascertain from the accused whether the vehicle belongs to him or to another and then if the Magistrate believes that the vehicle belongs to the accused he can straightaway order its confiscation. If on the other hand there are reasons to believe that the owner is a different person the confiscation of the property might be postponed for a reasonable time on the analogy of section 517, Criminal Procedure Code and as explained in Naini Mal v. Crown 1, Kishanchand v. Nanak Chand 2, Kanshi Ram v. Emperor 3, Deopujan v. Kukur Ahir 4 and notice might be issued to that alleged owner to come and show cause in the language of section 99 of the Bombay Prohibition Act that he had exercised due care in preventing the commission of an offence, i.e., that he did not know and had no reason to believe that the conveyance was likely to be used for transporting liquor illicitly a course incidentally directed in C.N.Hassan Khan v. Government of Mysore 5, arising under section 14 of the Mysore Prohibition Act XXXVII of 1948. In this connection the learned State Prosecutor feels and I am also of the opinion that section 13 of the Madras Act X of 1937 may be suitably amplified on the lines of section 99 of the Bombay Prohibition Act. In the result, the orders of the lower Court ordering the confiscation of the bicycles are set aside and the learned Sixth Presidency Magistrate, Saidapet, is directed to dispose of the question of confiscation in the light of the observations made above. R.M. ----- Order set aside.