Judgment : 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. 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. Petitioners in Criminal O.P.No.11371 of 1992 are stated to be liable, since they are partners of the aforestated Canter Parcel Service. 4. 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. 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. 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. 5. Mr.R.Raghupathi, learned Additional Public Prosecutor, while countering the contentions advanced by the petitioners’ counsel, argued that the initial investigation was haphazard which led to further investigation, keeping in view the object behind the enactment. He fairly stated, that the prosecution stands or falls at this stage, only on the statement of Thirumalai as far as these petitioners are concerned. I have had the advantage of the statement of Thirumalai being read over to me very meticulously by the petitioners’ counsel as well as the learned Additional Public Prosecutor. The Slates counsel further urged that Sec.14-A of the Act will have to be read together with Sec.14(1) and (2) of the Act and dissection may not serve any purpose. He referred to Sec.43 of the Tamil Nadu Forest Act, and the decision of Padmini Jesudurai, J., rendered under the provisions of the said Act. The Slates counsel further urged that Sec.14-A of the Act will have to be read together with Sec.14(1) and (2) of the Act and dissection may not serve any purpose. He referred to Sec.43 of the Tamil Nadu Forest Act, and the decision of Padmini Jesudurai, J., rendered under the provisions of the said Act. He would, however, strenuously submit, that on the statement of Thirumalai, there can be no impediment to the petitioners being arrayed as accused to face their trial. Certain other decisions were placed for my consideration by either counsel which I will refer to at the relevant context. 6. Before entering into the arena of legal submissions advanced, it would be better to be certain about the factual details, that can be discerned from the statement, of the only witness Thirumalai, on which the whole prosecution of the petitioners stands founded. It will be better to have the statement of the said Thirumalai translated into English at least in so far as the relevant portions are concerned. It reads as follows: “For the past three years, I am working as manager in M/s.M.O.H.Canter Parcel Service situated at Karaikkal. The owners of the said parcel service are, (1) M.O.H.Iqbal (A-3), (2) F.Shajahan (A-2), (3) U.Saleem (A-l). Mini lorry bearing registration number PYT 1512 belongs to Canter Parcel Service. The said mini lorry used to be hired out to customers. Whenever Alexander (A-9) engaged this lorry to transport ayurvedic medicinal preparations manufactured by Lakshmi Agency, Karaikkal, for Aral Pharmacy, to Sirkali, Kollidam and other places, A-9 would discuss with the owners of the Parcel Service in detail. After ascer-taining all particulars, the owners would direct him to engage a driver for the lorry. In the same manner, on 3.1.1992 at or about 6.00 p.m., A-9 met A-l at the premises of Canter Parcel Service at Karaikkal and wanted to hire the lorry to transport ayurvedic medicinal preparations to Sirkali, Kollidam and Kumbakonam. On such representation, A-l fixed the hire charges at Rs.500 and directed him to fix up mini lorry bearing registration number PYT 1512 and engage driver Balakrishnan (A-4 in the calendar case) to facilitateA-9utilisingthe lorry for the purpose mentioned by him. Similarly, A-5 was engaged as cleaner by him, for the very same purpose. He has no knowledge about Lakshmi Agency. Similarly, A-5 was engaged as cleaner by him, for the very same purpose. He has no knowledge about Lakshmi Agency. He learnt later that on 4.1.1992 at or about 4.00 a.m. Mayiladuthurai police had seized the lorry while it was transporting liquor bottles mixed with poison. He further learnt that A-4 to A-8 were arrested along with 90 bags of bottles containing spurious liquor. On the directions of the owners of Canter Parcel Service, he preferred Criminal O.P.No.5359 of 1992 for return of the mini lorry involved in this crime and the same was ordered by the High Court, as an interim measure. This lorry has been utilised on several previous occasions for transport of medicinal preparations on hire basis with the knowledge of A-l Salem.” 7. A reading of this statement, does not anywhere indicate, that the petitioners had hired out this lorry to A-9, knowing fully well that the latter had intended to utilise the lorry for transport of spurious liquor. Mr.R.Raghupathi, learned Additional Public Prosecutor laid stress on the following passage in the statement of Thirumalai, to contend, that at this stage, the said piece of material would be sufficient to put the petitioners on trial. The passage in Tamil reads as follows: “TAMIL” 8. Learned Additional Public Prosecutor urged that the words “TAMIL” would be sufficient to indicate atleast inferentially, the mens rea of the petitioners, connecting them with illicit transport of spurious liquor by A-9. It would be very difficult to accept this contention, for the other possibility of detailed enquiry from the transporter, about the purpose for which the lorry was to be used, was being ascertained, before it was let out on hire, indicating the visible anxiety of the owners, not to allow the vehicle to be used for any illegal purpose. As long as this possibility is open, I am afraid that the meaning sought to be attributed to those words, which are so plain, cannot be attributed the significance, sought to be put forth by the States counsel. The lines following the afore stated averments further show that on 3.1.1992 when A-9 met A-1 to hire the lorry, it was specifically stated to the latter by the former that he intended to trans-port ayurvedic drugs. It was on that representation that A-l had directed Thirumalai to send the lorry involved in this crime, after fixing up Balakrishnan (A-4) as the driver. It was on that representation that A-l had directed Thirumalai to send the lorry involved in this crime, after fixing up Balakrishnan (A-4) as the driver. The hire charge was also fixed at Rs.500. Nothing was also then known about Lakshmi Agency. At this stage, on the statement of Thirumalai alone, it will be very difficult to contend, that knowing fully well that A-9 had intended to utilise the mini lorry for the purpose of illicit transport of spurious liquor, the petitioners herein, either individually or jointly, had hired out this vehicle for such an illegal purpose. If during investigation material had been collected to indicate conspiracy between these petitioners and the other accused, the position may have been different. Equally, if investigation had shown abetment of the main offence, committed by the petitioners, the position may still be different. Petitioners are not sought to be made liable with the aid of Sec.12 of the Act, but are shown to be liable in view of the deeming provision contained under Sec.14-A of the Act. 9. Now that the factual background to prosecute the petitioners has been found to be practically of no use, it will be necessary to scrutinise the legal contentions advanced. 10. A perusal of Sec.14 of the Act shows that apart from the power provided to Courts under Sec.14 (1) and (2) of the Act to confiscate anything liable to confiscation, such a power has also been invested, in the Collector or other prohibition officer in charge of the district or any other officer authorised by the State in that behalf. Under Sub-sec.(3) they have the power to order confiscation when an offence against this Act has been committed, but the offender is not known or cannot be found, or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily accounted for. This sub-section obviously does not cover the facts in instant prosecution and this position is conceded by either counsel. Extraordinary powers have been given to the executive under Sec.14(4) of the Act for confiscation of a vehicle etc., used in the commission of offences against this Act. But, we are not concerned with the said provision as it existed before substitution by Act 24 of 1990 since it had been struck down by a Division Bench of this Court and the said verdict is still effective. But, we are not concerned with the said provision as it existed before substitution by Act 24 of 1990 since it had been struck down by a Division Bench of this Court and the said verdict is still effective. 11. For the purpose of a decision in this case, we will therefore be concerned only with Sub-secs.(1) and (2) of Sec.14 of the Act the substituted Sec.14(4) and the provisions under Sec.14-A of the Act. I have already extracted Sec. 14-A of the Act, which deems the owner of the vehicle which is used in the commission of any offence against this Act and is liable to confiscation, guilty of such offence, permitting his being prosecuted against and punished accordingly, unless he satisfies the Court that he had exercised due care in the prevention of commission of such an the offence. A Division Bench of this Court in Shanthalakshmi, D. v. The State of Tamil Nadu, (l983)L.W.(Crl). 74, while considering the validity of the various provisions of Tamil Nadu Prohibition Act and holding ultimately that Sec. 14(4) of the Act offended Arts.14, 19(1)(g) and 300-A of the Constitution of India, and striking it down, observed as follows: “No doubt, according to the learned counsel, this section is a rule of evidence, while according to the learned Advocate-General, it is a substantive provision. Just as Sec.4(2)(a), which is a rule of evidence, deals with possession of illicit liquor, Sec.14-A deals with transport of illicit liquor, and as such this section can be construed only as a rule of evidence, since a procedure has been set up as to how the owner of the vehicle is liable. Except for shifting the burden on to the accused, which can be done in a given legislation, there is absolutely nothing in Sec.14-A to strike it down.” It is therefore obvious, on the basis of the verdict of the Division Bench, that Sec.14-A is not a substantive provision, but only embraces within itself a rule of evidence. 12. The Division Bench has struck down Sub-sec.(4) of Sec.14 of the Act as it existed in the Act brought in by amendment by Tamil Nadu Act 9 of 1969. It is now seen that Sub-sec.(4) was substituted in the statute book by Act 24 of 1990. 12. The Division Bench has struck down Sub-sec.(4) of Sec.14 of the Act as it existed in the Act brought in by amendment by Tamil Nadu Act 9 of 1969. It is now seen that Sub-sec.(4) was substituted in the statute book by Act 24 of 1990. Since Sub-sec.(4) which was struck down is different from the present sub-section, the concept contemplated under the new sub-section will have to be scrutinised. It is better to extract new Sub-sec.(4) to Sec.14, which reads as follows: “Notwithstanding anything contained in Sub-secs.(1) to (3), if the collector or other prohibition officer-in-charge of the district or any other official authorised by the State Government in that behalf is satisfied that an offence has been committed against this Act and whether or not a prosecution is instituted for such offence, he may without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of any animal, vessel, cart or other vehicle used in the commission of such offence: Provided that, before passing an order of confiscation, the owner or the person from whom such animal, vessel, cart or other vehicle is seized, shall be given— (i) a notice in writing informing him of the grounds on which it is proposed to confiscate the animal, vessel, cart or other vehicle; (ii) an opportunity of making a representation in writing within a reasonable time, not exceeding fourteen days, as may be specified in the notice against the grounds of confiscation; and (iii)a reasonable opportunity of being heard in the matter: Provided further that the owner or the person from whom such animal, vessel, cart or other vehicle is seized shall be given an option to pay, in lieu of its confiscation, an amount not exceeding the market price of such animal, vessel, cart or other vehicle.” A reading of this sub-section clearly postulates that notwithstanding anything contained in the earlier sub-sections, the Collector or other officers contemplated therein, on being satisfied that an offence has been committed against this Act, irrespective of institution of a prosecution or not, without prejudice to any other punishment to which the offender will be liable under the Act, order confiscation of any animal, vessel, vehicle etc., used in the commission of such offence. Even here, under the proviso, the Collector or the Officer concerned, before passing an order of confiscation, must direct notice in writing to the owner or the person from whom such animal, vessel, cart or other vehicle is seized, informing him of the grounds on which it was proposed to confiscate the said thing, apart from permitting written representation and affording an opportunity for oral hearing. This section also postulates an option being afforded to the owner or other person to pay an amount, as contemplated under the proviso, in lieu of confiscation. The concept underlying Sub-sec.(4) of Sec. 14 seems to be totally different from the contemplation under Sub-secs.(1) and (2). Under Sub-secs. (1) and (2), the decision is that of the court regarding anything liable to confiscation. The words used in Sec. 14-A are again, “liable to confiscation” and the latter part of that section throws the onus on the said person to satisfy the Court that he had exercised due care in the prevention of the commission of such an offence. Under Sec.14-A, the procedure commences, after the Court decides, either under sub-sec.(1) or sub-sec.(2) of Sec.14, that anything is liable to confiscation, when the owner thereof stands deemed to be guilty. 13. From the wordings found in sub-sec.(4) of Sec.14, it is apparent, that it has no connection with Sec.14-A of the Act. Under Sec.14(4), the Collector or other officer is empowered to order confiscation under a set of circumstances contemplated therein, whereas under Sub-secs.(1) and (2) read with Sec.14-A, it is the court which decides about the liability for confiscation of any-thing used in the commission of an offence under the Act and then the deeming provision of guilt of the owner comes into operation. I have no hesitation in holding, that Sec. 14(4) does not in any way govern the provisions contained in Sec.14-A of the Act. To reiterate, under Sub-secs.(1) and (2) of Sec.14, liability to confiscation, rests on the decision of the Court, which again is taken into the contents of Sec. 14-A of the Act, while “Court” is totally omitted from Sec.14(4) of the Act. Naturally, the Collector or other officer cannot exercise power under Sec.14-A of the Act or Sub-secs.(1) and (2) of Sec.14. The introduction of Sub-sec.(4) by Act 24 of 1990 does not affect the facts in the instant case. 14. Naturally, the Collector or other officer cannot exercise power under Sec.14-A of the Act or Sub-secs.(1) and (2) of Sec.14. The introduction of Sub-sec.(4) by Act 24 of 1990 does not affect the facts in the instant case. 14. The words “and is liable to confiscation” used in Sec.14-A and the words “shall be deemed to be guilty of such offence” will have to be carefully construed, while analysing the divergent contentions placed before me. It is the law, that the import of the word “liable” actually depends on the context, on the entire setting in which it appears. The word “liable” meant, on the basis of decided cases, that a person was imperiled of having something done to him to which he was exposed and subjected to, or from which he was likely to suffer. The words “shall be liable to confiscation” only mean that if the offence is committed, then the vessel must be confiscated. The word “liable” means a future possibility or probability the happening which may or may not actually occur. The word liable does not necessarily convey the sense of any inevitable or unavoidable consequence, every time. Useful reference could be made to the decision of Kapur, J., in State v. Amru Tulsi Ram, A.I.R. 1957 Punj. 55. Theword “liable” occurring in many statutes has been held as not conveying the sense of an absolute obligation or penalty, but merely importing a possibility of attracting such obligation, or penalty. There can be no doubt that the court must give effect to the will and inbuilt policy of the legislature as discernible from the object and scheme of the enactment and the language employed therein. The word “deemed” creates artificial data in the place of existing fact. It is a statutory fiction. It must be given full effect to and carried to its logical conclusions, when a person is deemed to be something, the only meaning possible is whereas he is not in reality that something, the Act requires him to be treated as if he were. The word is used at times to introduce artificial constructions which would not otherwise prevail. It must be given full effect to and carried to its logical conclusions, when a person is deemed to be something, the only meaning possible is whereas he is not in reality that something, the Act requires him to be treated as if he were. The word is used at times to introduce artificial constructions which would not otherwise prevail. If this is the meaning that could be given to the words “liable to confiscation” and “deemed to be guilty”, the question to be posed is, as to the stage at which a person could be deemed to be guilty under Sec.14-A of the Act, which in turn depends on the words “liable to confiscation” employed in the same section. Our attention, therefore, has to be necessarily diverted to Sec.14(1) and (2) of the Act. Sec.14(1) of the Act will arise only on the termination of the trial, for that section takes within its fold conviction or acquittal of the offender at which stage the Court decides if anything is liable to confiscation and on that decision confiscation shall be ordered by the Court. This provision correlates to Sec.452 of the Code of Criminal Procedure. At the moment, on instant facts, this section cannot come into operation, for the trial is yet to commence. As far as Sub-sec.(2) of Sec.14 is concerned, it can operate at any previous stage other than the one contemplated under Sub-sec.(1) of Sec.14 of the Act. During the course of the trial, if the court arrives at a decision that anything is liable to confiscation, the court is bound to order confiscation. Even here, the decision of the court is paramount, to arrive at a conclusion that anything is liable to confiscation. At that stage, under the proviso, the court will have to afford an opportunity to the owner or any person claiming any right thereto, that in spite of his having exercised due care in the prevention of such an offence, the crime had been committed, to avoid confiscation. In other words, confiscation is not a must, but it depends upon judicial discretion exercised by the court, on the material placed before it, either during the course of the trial or at the conclusion of the trial. In other words, confiscation is not a must, but it depends upon judicial discretion exercised by the court, on the material placed before it, either during the course of the trial or at the conclusion of the trial. Secs.14 (1) and (2) also prima facie exclude the owner being an accused in a certain set of circumstances, when he can be brought in only under the deeming provision under Sec.14-A, in view of the vehicle owned by him being liable for confiscation, in the opinion of the court. 15. At the risk of repetition, it has to be stated, that the owner of a vehicle, can possibly be prosecuted sans the deeming provision of Sec. 14-A, if during investigation material had been collected to indicate conspiracy to commit the offence or abetment of the offence or similar such material which need not have to be exhaustively listed. But, if the prosecution seeks to connect the owner of the vehicle with the crime, based only on the deeming provision under Sec.14-A of the Act, then it appears to my mind, that it can happen only after the court arrives at a decision, that anything is liable to confiscation, after application of mind to the material placed before it, either during the trial of a case or at its conclusion. If it was the intention of the legislature to invariably prosecute the owner of the vehicle, merely because the vehicle had been used in the commission of an offence under the Act, without anything further, the need for a proviso under Sec. 14(2) of the Act appears to be otiose. It is therefore possible to visualise prosecution of owners of vehicles, in a given set of circumstances right from the initiation showing them as accused in the final report, in the event of material collected during investigation indicating their complicity in the crime. If that stage has passed, the only other stage in which the owner of the vehicle will become liable, will be on the decision of the court to confiscate the vehicle, which leads to a fiction created under Sec.14-A of the Act, by which connected with the liability to confiscation of the vehicle, the owner who is deemed to be guilty is liable to be proceeded against and punished accordingly. Provisions of Sec.14-A of the Act can therefore come into operation only after the Court arrives at a decision either under Sec.14 (1) or (2) of the Act, that anything was liable to confiscation for an offence against the Act. Sec.14-A can be compared with Sec.319 of the Code of Criminal Procedure, where during the course of an enquiry or trial it appears from the evidence that any person, not being the accused, has committed any offence for which such person could be tried together with the accused already arrayed. It is at that stage, relevance of opportunity to the owner of the vehicle, contemplated under proviso Sec.14 (2) of the Act becomes clear. The following words used in the proviso, “that the owner and such person had exercised due care in the prevention of the commission of such an offence” find incorporated in Sec. 14-A of the Act, as well. Therefore, it is very clear that Sec.14(1) and (2) of the Act and Sec.14-A will have to be read together and cannot be dissected. 16. Padmini Jesudurai, J., had occasion to consider the scope for confiscation of vehicles involved in forest offences, in P.C.Pocker v. State P.C.Pocker v. State, 1992 Crl.L.J. 3057. That decision was relied upon by the learned Additional Public Prosecutor, in emphasis of his contentions. But, I do not find, that he can derive any support, from that ruling. Learned Judge has observed as follows: “Since the court has to find out whether the offence of illicit transportation of forest produce had been committed either by the employee of the owner or by someone else without the knowledge or connivance of the owner of the vehicle, a separate enquiry, for the purpose of Sec.43 of the Act is must. In such an enquiry, notice must be given to the owner of the vehicle. An opportunity must be given to him and the State to produce evidence, oral and documentary and on a consideration of the entire material, the court will have to give a finding as to whether the offence was committed without the knowledge or connivance of the owner of the vehicle. An opportunity must be given to him and the State to produce evidence, oral and documentary and on a consideration of the entire material, the court will have to give a finding as to whether the offence was committed without the knowledge or connivance of the owner of the vehicle. Passing an order of confiscation without holding such an enquiry and without giving an opportunity to the owner of the vehicle to satisfy the court that he had no knowledge of the offence and it was committed without his connivance, will be contrary to principles of natural justice. A separate enquiry has to be held only when the owner of the vehicle had not been an accused during trial. The scope of the enquiry, however, will be limited. The court cannot permit the parties to recanvass the issue as to whether or not the vehicle had been used for the commission of the offence. When a vehicle is used by someone other than the owner, there is no presumption that he is using it without the knowledge of the owner. It is, therefore, for the owner of the vehicle to prove that the offence was committed without his knowledge or connivance. Knowledge being a mental state cannot be proved by direct evidence. It has to be inferred from a totality of circumstances. During the trial this aspect of the owners knowledge or connivance would not normally come into the picture since the owner was not an accused, while the courts in a proceeding such as this, would have to ensure that confiscation of the vehicle of an innocent owner is not ordered, courts should also bestow their anxious consideration to see, that the persons who really get the benefit of the crimes do not escape these penal provisions relating to confiscation, by the courts treating these matters lightly. Courts have to bear in mind that the legislation is intended to preserve the forests in the interests of the nation as a whole. The vastness of the area, the difficulty of detection of forest crimes, the risks involved in the detection, render enforcement of the legislation difficult. The transport of forest produce would not normally be done by a driver or a cleaner of a vehicle acting by himself. The vastness of the area, the difficulty of detection of forest crimes, the risks involved in the detection, render enforcement of the legislation difficult. The transport of forest produce would not normally be done by a driver or a cleaner of a vehicle acting by himself. Courts, therefore, have to consider the circumstances under which the vehicle was found carrying forest timber, the quantity of the forest produce carried, the statement made by the driver immediately to the Forest Official, the conduct of the owners of the vehicle and so on. In cases where the circumstances indicate that the offence would not have been committed without the knowledge or connivance of the owner of the vehicle, courts should never hesitate to order confiscation of the vehicles on irrelevant considerations such as the value of the vehicle, the loss to the owner and so on. These will be the broad guidelines which courts have to bear in mind, while passing orders under Sec.43.” The approach of Padmini Jesudurai, J., almost coincides with the view expressed by me earlier in this order, especially regarding the stage at which the owner of a vehicle liable to be confiscated enters into the picture and the opportunity to be afforded to him when he is not shown as an accused in initial stages, on basic material showing his prima facie guilt. 17. Learned Additional Public Prosecutor also relied upon the judgment of the same learned Judge Natarajan IN RE. Natarajan IN RE. , 1992 MLJ. (Crl). 494, where the provisions of Sec.14-A of the Tamil Nadu Prohibition Act have been sought to be interpreted. Learned Judge has observed as follows: “Subsequent to the amendment in 1979 and the introduction of Sec.14-A and interpreting Sec.14(1) and the Proviso in the spirit of the amendment, we cannot read into the section that unless knowledge of the owner of the vehicle about the commission of the crime is established, court can never confiscate the vehicle. In the first place, Sec.14 as it stands, does not require knowledge to be proved. Further importing into Sec.14, the requirement of knowledge of the owner of the commission of the crime, would be contrary to the spirit of the newly introduced Sec.14-A and the amended Sec.14(1) and Proviso. In the first place, Sec.14 as it stands, does not require knowledge to be proved. Further importing into Sec.14, the requirement of knowledge of the owner of the commission of the crime, would be contrary to the spirit of the newly introduced Sec.14-A and the amended Sec.14(1) and Proviso. The object of these changes relating to confiscation is that, it is the duty of the owner of the vehicle to exercise due care to see that his vehicle is not used for the commission of the crime. If he fails to satisfy the court that he exercised due care, he is visited wit* the penally of confiscation of the vehicle. The amendment in 1979 has been made in order to prevent violations of these penal provisions by using fast moving heavy vehicles for these crimes by punishing, not only those who are actually caught in the process of transporting who will mostly be the employees of the owner of the vehicles but also penalise the owner of the vehicles by confiscating the vehicle. In a situation when the employees of the owner of the vehicles have used the vehicle and have committed offences in spite of due care by the owner, it would always be possible for the owner of the vehicle to establish that despite his due care, the offence had been committed. In the context of Sec.14-A and the substituted Sec.14(4) and Proviso, it is not necessary that the knowledge of the owner of the vehicle need be established as a prerequisite for the court to ‘confiscate the vehicle. It may be one of the several circumstances for the court to decide as to whether or not, the owner of the vehicle had taken due care to prevent the commission of the crime. To hold otherwise, would be to defeat the very object of amending the above provisions relating to confiscation of vehicles.” Learned Judge, as I have done, has felt that the provisions of Sec. 14-A and Sec.14(1) and (2) will have to be read together. If that be done, then there can be no difficulty in arriving at a conclusion, that this is not the stage at which the owner of the vehicle could be made liable, due to total lack of evidence of his involvement in this crime, except the attempt made to seek recourse to the provisions of Sec.14-A of the Act. If that be done, then there can be no difficulty in arriving at a conclusion, that this is not the stage at which the owner of the vehicle could be made liable, due to total lack of evidence of his involvement in this crime, except the attempt made to seek recourse to the provisions of Sec.14-A of the Act. In the case decided by Padmini Jesudurai, J., conspiracy was alleged in the transport, and that had made all the difference. 18. Learned Additional Public Prosecutor relied upon the decision of the Supreme Court in Prafulla Kumar Swain v. Prakash Chandra Misra Prafulla, J. T. 1993 (1) S.C. 360 with regard to the deeming clause. Supreme Court has stated thus: “Coming to the deeming clause, that creates a legal fiction, the Court is to ascertain for what purpose the fiction is created. In Justice G.P.Singh, Principles of Statutory Interpretation (fourth edition 1988) at page 208, it is stated thus: “As was observed by James, L.J: When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to”, “When a legal fiction is created”, stated S.R.Das, J. “for what purpose, one is led to ask at once, is it so createde”. It is exactly this approach I have made while construing the deeming clause under Sec.14-A of the Act. 19. One other provision under the Act will also have to be looked into before disposal of these petitions. Sec.24-B of the Act refers to offences by companies. In the event of an offence under the Act having been committed by a company, every person who, at the time the offence was committed, was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be liable to be proceeded against and punished accordingly. This section carries a proviso which enables the person concerned to prove that the offence was committed without his knowledge or that had exercised due diligence to prevent the commission of such offence. This section carries a proviso which enables the person concerned to prove that the offence was committed without his knowledge or that had exercised due diligence to prevent the commission of such offence. Sub-clause (2) of Sec.24-B relates to commission of an offence with the consent or connivance of, or attributable to, any neglect on the part of any director, manager, secretary or other officer etc., who shall be deemed to be guilty. Again under Sec.24-B of the Act, initial onus is on the prosecution to establish that an offence under the Act has been committed by a company. On the material collected during investigation, at this stage, there is nothing to show, that any offence has been committed by the company under (his Act. Hence, merely because the petitioner in Criminal O.P.No.12369 of 1992 happens to be the managing partner and the petitioners in Criminal O.P.No.11371 of 1992 happen to be the partners of the company, they cannot be proceeded against at this stage, due to total lack of basic material, to array them as accused. 20. it will be relevant to refer in this context the decision of the Supreme Court in Delhi Municipality v. Ram Kishan, A.I.R. 1983 S.C. 67:1983 Crl.L.J. 159: (1983)1 S.C.C 1 : (1983)1 S.C.W.R. 249: (1983)1 S.C.J. 228:1983 MLJ. (Crl.) 440: (1983)1 S.C.R. 884 . That was a case where a pending prosecution was quashed by the High Court in exercise of inherent powers in respect of an offence committed under the provisions of Food Adulteration Act by a company, its directors and manager. While upholding the quashing of proceedings by the High Court, in respect of all others except the manager, the Supreme Court stated, that the manager of the company who is directly in charge of its affairs could not fall in the same category as directors. It could not be reasonably argued that no case was made out against the manager, because from the very nature of his duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample. From the very nature of his duties, it can be safely inferred that the manager would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. From the very nature of his duties, it can be safely inferred that the manager would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. while considering this vicarious liability vis-a-vis the directors of the company, the Supreme Court stated as follows: “The complaint was filed against the company, its directors and the manager. So far as the directors are concerned, there is not even a whisper not a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, it can be said that no case against the directors has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed by the High Court.” 21. I have already stated the facts available against the petitioners in the instant prosecution, which squarely fall back on the statement of Thirumalai and Thirumalai alone. If that be so, applying the law laid down by the Supreme Court, I have no hesitation in holding that on the material available, no case against the petitioners has been made out ex facie and therefore, inherent powers of this Court will have to be necessarily exercised to quash the pending prosecution against them. 22. Merely because the prosecution against the petitioners stand quashed at this stage, it cannot be taken to mean, that if evidence is available against them during the course of trial, they will not be liable to be proceeded against. If, in the course of the trial, or at its conclusion, the court arrives at a decision, that the vehicle involved in this offence, is liable for confiscation, then the opportunity contemplated to the owner under the provisions of the Act are to be afforded to him and at that stage the deeming provision contemplated under Sec.14-A of the Act will step in. It is at that stage, on the availability of evidence or otherwise, that the petitioners can be brought in as accused and not at any earlier stage, as has been done in this case, without basic material to array them as accused. It is at that stage, on the availability of evidence or otherwise, that the petitioners can be brought in as accused and not at any earlier stage, as has been done in this case, without basic material to array them as accused. I have to reiterate, that it will always be possible to prosecute the owner of the vehicle as well, even from the initial stages, If material collected during investigation permits such a course. Otherwise, the owner can be prosecuted under the deeming provision only after a decision is arrived at by the Court as contemplated under Sec. 14(1) and (2) of the Act. The Supreme Court also in the case referred to above Delhi Municipality v. Ram Kishan, A.I.R. 1983 S.C. 67: 1983 Crl.L.J. 159: (1983)1 S.C.C. 1 : (1983)1 S.C.W.R. 249: (1983) 1 S.C.J. 228:1983 MLJ. (Crl.) 440: (1983)1 S.C.R. 884 has observed as follows: “Sec.319, Crl.P.C. gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused.” In these circumstances, therefore, if the prosecution can, at any stage, produce evidence and satisfy the Court, that some other accused or those who have been arrayed as accused against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them, to try them along with the other accused. Of course, as observed by the Supreme Court, this is an extraordinary power conferred on Court, which could be used only if compelling reasons exist for taking cognizance. As I have already stated, Sec.14-A read with Sec.14(1) and (2) is akin to the provisions of Sec.319, Crl.P.C. lam satisfied that unless a decision is arrived at by the court under Sec.14(1) and (2) of the Act, on total lack of material in the instant case, petitioners cannot be arrayed as accused. In that view, I allow both these petitions and quash all further proceedings in C.C.No.2722 of 1992 on the file of Judicial Magistrate No.1, Mayiladuthurai, in so far as it relates to the petitioners alone.