VIJAYAN v. ASST. EXCISE CUMMR. , CANNANORE — 1979 DIGILAW 297 (KER)

Judgment :- 1. The Preventive Officer and party of the Excise Range Office, Manan-toddy, on search found in the Suit Case of a passenger travelling in a bus belonging to the petitioner 20 half-bottles of foreign liquor, and 3 half-bottles of similar liquor in a packet with him. The passenger admitted that he was illicitly transporting them and compounded the offence. The Conductor, the Driver and the Cleaner of the bus denied that they knew about such illicit transport of foreign liquor by the passenger or that they in any way connived in it. According to them, they had taken all reasonable and necessary precautions against the use of the bus to carry contraband articles. The petitioner also contended that he in no way knew of the user of the bus for clandestine and illicit transport of contraband articles and he in no way connived is it; and that he too had taken all reasonable and necessary precautions against such user of the bus. The Preventive Officer and party seized the bus. The first respondent before whom the bus on seizure was produced took the view that in the absence of any rule or law which prohibits the employees of a bus verifying the contents of a packet or a suit-case carried by a passenger in the bus, they ought to have checked and verified the same, but they failed to do so and therefore they had not taken all reasonable and necessary precautions against the user of the bus for illicit transport of contraband articles. The bus was, as a result, ordered to be confiscated. The second respondent who is the appellate authority confirmed the order of confiscation and fixed a fine of Rs. 4000/- for release of the vehicle in lieu of confiscation. These orders, Exts. P6 and P8, are questioned in this Writ Petition. 2. The respondents seem to have approached the question involved in this case from a wrong angle. The second respondent who is the appellate authority confirmed the order of confiscation and fixed a fine of Rs. 4000/- for release of the vehicle in lieu of confiscation. These orders, Exts. P6 and P8, are questioned in this Writ Petition. 2. The respondents seem to have approached the question involved in this case from a wrong angle. No doubt, under S.67C(2) of the Abkari Act, 1077 (hereinafter: the Act) the onus is on the owner to prove to the satisfaction of the authorised officer that the bus was used in carrying the contraband articles without his knowledge and conveyance and also without the knowledge and connivance of his agent, if any, and of the person in charge of it; and he has to prove further that each of them had taken all reasonable and necessary precautions against such use. What would amount to reasonable and necessary precautions would, in the absence of a provision like: all such precautions against such use as are for the time being specified in the rules' in S.115(2) of the Customs Act, 1962 and; of rules prescribed in that behalf, vary from case to case. Unlike the Customs Act, 1962, the Act, instead of providing for prescription of rules specifying the precautions to be taken against such use of a conveyance, appears to have left the matter to the prudence and the discretion of the owner, the agent and the person in charge of the conveyance; they have to take 'reasonable and necessary precautions against such use', or in other words, precaution which, tested by the standards of an ordinary and prudent owner, agent or the person in charge of the conveyance, are necessary and sufficient. If there be any rule specifying the nature of precautions to be taken by them, and if any one of them fails to comply with such a rule, then, perhaps, it would be possible to argue that the rule in De Keyser v. British Railway Traffic and Electric Company Limited (1936 (1) K.B. 224) may govern the case, for it can be said of a case falling under such a statute and rules: "What is it that is open to the claimant on such proceedings? In my opinion, nothing more is open to him than to contend, and, if need be, to offer evidence to prove, that, on a true view of the facts, the conveyance in question does not come within the class of things which, by S.202, are forfeited. He may contend with success, for instance, 'that through error or otherwise a conveyance not liable to be forfeited has been seized. He may say in whatever form is suitable to the relevant facts that the conveyance does not come within the class of things forfeited. But once it is established that the conveyance does come within that class, this undoubtedly rigorous statute gives the claimant no opportunity of asking the Court to take into consideration mitigating circumstances with the effect of removing the conveyance from that class. There is no opportunity for mercy with regard to a conveyance which has been forfeited, although there may be grounds for contending that the conveyance does not come within the class of forfeited property." 3. The above quoted rule was stated by Lord Hewart C. J. with reference to the Customs Consolidation Act, 1876 and was relied on by the Calcutta High Court in Ananda v. T. C. Seth (AIR. 1956 Cal. 553) in a case falling under S.168 of the Sea Customs Act, 1878; both the statutes mentioned above did not contain a provision like sub-section 2 of S.115 of Customs Act, or sub-section 2 of S.67C of the Act. This strict liability theory seems to proceed on the basis that the conveyance forms part of the contraband goods, and the contraband goods including the conveyance themselves become the offender wherefore mens rea of the owner of the goods and of the conveyance and the person in charge of it is an irrelevant consideration. This strict liability theory seems to proceed on the basis that the conveyance forms part of the contraband goods, and the contraband goods including the conveyance themselves become the offender wherefore mens rea of the owner of the goods and of the conveyance and the person in charge of it is an irrelevant consideration. The Act makes a departure from this rule and enables the owner of a conveyance, and him alone, to prevent its confiscation by proving to the satisfaction of the authorised officer that the conveyance was used for carrying the contraband goods, as already, pointed out, without his knowledge and connivance as also without the knowledge and connivance of his agent and the person in charge of it, and further that each of them had taken all reasonable and necessary precautions against such use, thereby requiring an element of guilty mind (mens rea) to constitute the offence, but casting the burden of proof of absence thereof on the owner. So, even in case where guidelines have been prescribed by rules as regards what all precautions are to be resorted to by the owner of a conveyance, his agent, and the person in charge of it, it could be contended (and it was so held by my learned brother Poti J. with reference to S.115(2) of Customs Act, 1962) that: "It is said that S.115 (2) only specifies that the conveyance is liable to confiscation. What this naturally means is that it is not mandatory in every case that the conveyance should be confiscated. Whether it should be confiscated or not would depend upon a variety of circumstances and the discretion of the authorities must be exercised only after taking into account all relevant factors. It is said that when a person is the owner and it. is beyond his powers to prevent what did happen notwithstanding the precautions taken, that may be one circumstance which could forcefully be urged, in answer to a notice to show cause why the conveyance should not be confiscated." (O P. No. 5676 of 1972 reported as Case No. 78,1975 KLT. S. N. 33). 4. A decision of the Supreme Court, State of U. P. v. Azad Bharat Finance Co. (1967 (1) SCWR.111) (AIR. 1967 SC. 276) can with advantage be referred to here. S. N. 33). 4. A decision of the Supreme Court, State of U. P. v. Azad Bharat Finance Co. (1967 (1) SCWR.111) (AIR. 1967 SC. 276) can with advantage be referred to here. Construing the following provision of the Opium Act, 1878 as amended by the Opium (Madhya Bharat Amendment) Act, 1955 "S. 11. In any case in which an offence Under S.9, 9A, 9B, 9C, 91), 9E, 9F and 9G has been committed, the property detailed herein below shall be confiscated: (d) the receptacles, packages and covering in which any opium liable to confiscation under this Section is found, and the other contents (if any) of the receptacle or package in which such opium may be concealed and the animals, carts, vessels, rafts and conveyances used in carrying it." the Supreme Court said: "5. In our opinion, the High Court was correct in reading S.11 of the Madhya Bharat Act as permissive and not obligatory. 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 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. 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, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence (vide Tirath Singh v. Bachittar Singh (1955) 2 SCR. 457 at 464). 6. Secondly, it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any Offence should not be visited with a penalty. 7. 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 restrictions under Art.19 of the Constitution. 7. 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 restrictions under Art.19 of the Constitution. Bearing all these considerations in kind, 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 contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case." 5. The following propositions emerge from the above discussion:-(i) to confiscate a conveyance under S.67C of the Act, it is necessary that its owner, his agent or the person to whom it is entrusted by him should have a guilty mind (mens rea), though not to the extent of an intention on his part to commit the Abkari Offence of carrying contraband goods therein or to abet the same, at least to the extent of knowingly and willingly permitting its user for the carriage of such goods; (ii) the onus is on the owner to establish absence of any guilty mind and not on the department to prove its presence; (iii) the owner, his agent and the person in charge of the conveyance should also have taken all reasonable and necessary precautions against such use; (iv) here again, the burden of proof is upon the owner to prove that each of them had exercised reasonable and necessary precautions against such use; (v) there are no rules specifying the nature of the precautions to be taken by them, the only guideline in that behalf being that all reasonable and necessary precautions should be taken; (vi) S.67B(2) is only permissive and not obligatory (this sub-section uses only the word 'may' and not 'shall', even which word was construed by the Supreme Court in the above-mentioned case, as only permissive and not obligatory); (vii) it is a penal provision and should be construed in such a way that an innocent person is not visited with a penalty; and (viii) a very strict and rigid construction of the provision in S.67B (2) may lead to absurdity and unconstitutionality. It is bearing in mind all these aspects that the question of ordering confiscation of a stage carriage from which contraband liquor was detected in a Suit-Case and in a packet, both admittedly belonging to a passenger travelling in it, is to be considered. 6. The respondents have proceeded in this case as if in the absence of any rule or law prohibiting the Conductor from verifying the contents of the Suit-Case and the packet, he ought to have checked and verified the contents thereof. It appears to me that law is just the opposite, namely, that in the absence of a law empowering and enabling a search of a person, and his personal effects, no one can make a search of the body of a person and his goods. Unauthorised interference with a citizen's right to carry his personal effects by searching them will amount to an intrusion into his privacy and an invasion of his personal liberty guaranteed by Art.21 of the Constitution, It would also be an invasion of one's right to travel about, which again is a matter of personal liberty a compendious expression used in Art.21 to include within itself all kinds and varieties of rights which go to make up the personal liberties of a man other than those dealt with in the several clauses of Art.19 (1) of the Constitution. See Kharak Singh v. State of U. P. (AIR. 1963 SC. 1295). Therefore, unless there is a procedure established by law, and except in accordance with such procedure, one cannot be deprived of the aforesaid personal liberties. This means, so far as the case on hand is concerned that unless the Conductor of the bus and/or the other employees thereof have power conferred on them by law to search the passengers and their goods, they cannot do so. The petitioner has a case that not only no such power is conferred on any one of them, but under the Motor Vehicles Rules, and, at any rate from a commercial point of view, they have to behave properly and in a good-mannerly way towards the passengers, causing no annoyance and harassment to the travelling public. I quash Exts. P6 and P8 orders. The first respondent shall consider the case afresh after affording the petitioner an effective opportunity to be heard in the matter and in the light of what is stated herein. I quash Exts. P6 and P8 orders. The first respondent shall consider the case afresh after affording the petitioner an effective opportunity to be heard in the matter and in the light of what is stated herein. This writ petition is allowed to the above extent. There will be no order as regards costs.