Parvathi v. The District Collector, Dharmapuri — 1997 DIGILAW 1554 (MAD)

Judgment 1. Heard both the parties. 2. The above revision is directed against the order dated 31.8.1995 in C.A.No.42 of 1994 on the file of the learned Additional District and Sessions Judge, Dharmapuri at Krishnagiri, confirming the order of confiscation of the District Collector, confiscating the lorry bearing Regn.No.TN-28-Y-1515, belonging to the petitioner, for having transported 375 cases of Indian made Foreign Liquor (hereinafter referred to I.M.F.L.) from Maharashtra to Pondicherry through the State of Tamil Nadu, without a proper permit and thus liable to be confiscated under Sec. 14(4) of the Tamil Nadu Prohibition Act. 3. At the outset, learned Government Advocate fairly brought to my notice that while passing the order of confiscation dated 29.8.1994, the Collector of Dharmapuri, has not complied with Sec. 14(4) of the Tamil Nadu Prohibition Act, even though notice in writing informing the grounds of confiscation as well as an opportunity of making representation against the grounds of confiscation and a further reasonable opportunity of being heard was given to the Petitioner the petitioner was not given an option to pay an amount not exceeding the market price of the vehicle in question. 4. In this connection I am obliged to refer the decision in P.Krishnamoorthy v. District Collector, South Arcot District, Cuddalore and another, Crl.R.C.No.882 of 1993, dated 27.10.1997 wherein I have held as follows: “Under Sec. 14-A of the Act, the knowledge of the owner of the vehicle is totally immaterial. 4. In this connection I am obliged to refer the decision in P.Krishnamoorthy v. District Collector, South Arcot District, Cuddalore and another, Crl.R.C.No.882 of 1993, dated 27.10.1997 wherein I have held as follows: “Under Sec. 14-A of the Act, the knowledge of the owner of the vehicle is totally immaterial. The owner of the vehicle is deemed to be guilty as per 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 be satisfied the court that he had exercised due care in the prevention of the commission of such an offence.” “I am obliged to note that the proviso to Sec. 14(4) of the Act, had been striped out 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 justified for such offence, he may without prejudice to any 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 processed 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 Sec. 14(4) along with the second proviso mentioned thereunder, makes it clear that before passing final orders of confiscation, the confiscation authority is expected to give an option in writing to pay, in lieu of its confiscation, an amount not exceeding the market price of such vehicle of course. ‘It is well-settled in law that when the authorities are expected to exercise the power in a particular manner prescribed under the statute, the authorities should exercise such powers in the same manner as prescribed under the statute without any exception to the manner so prescribed under the statute. A plain reading of the said proviso makes it very clear that the authority is given a discretion to call on the petitioner giving him an option to pay an amount not exceeding the market price when would mean that the authorities has to ascertain the market value and should mention it in the show cause notice and then only, he is expected to given (sic.) an option to the owner of the vehicle or the person from whom the vehicle is seized, to pay the amount mentioned in the show cause notice. In the instant case, while giving an option to the petitioner to pay an amount not exceeding the market price of such vehicle by the said notice dated 15.4.1993, the confiscation authority ought to have mentioned the market price of the vehicle confiscated and also have quantified the amount required to be paid by the owner which should not exceed such market price of the vehicle. But in the instant case, the learned District Magistrate and Collector failed to mention the market price of the vehicle and the amount required to be paid by the petitioner. In the result, the notice dated 15.4.1993 giving an option to pay an amount not exceeding the market price of the vehicle is not sustainable in law for non-mentioning the market price of the impugned vehicle as well as the amount to be paid by the petitioner and therefore, the impugned order of confiscation dated 9.6.1993, as confirmed by the learned District and Sessions Judge are held as illegal and contrary to law. Therefore, the revision petition is allowed and the matter is remitted to the learned District Magistrate and Collector with a direction to give notice to the petitioner, giving him an option to pay an amount not exceeding the market price namely Rs. 17,500 within two weeks from the date of receipt of a copy of this order. The learned District Magistrate and Collector shall also give a minimum period of four weeks to the petitioner and to exercise his option and thereafter a final order shall be passed on merits within two weeks from the date of lapse of four weeks given to the petitioner to exercise his option. 5. In T.Karthik v. State by Inspector of Police, P.E. W. Tambaram, Crl. R. C. No. 130 of 1995,dated 4.11.1997, I have held as follows: “I find both the confiscation authority as well as the appellate authority have overlooked the second proviso to Sec. 14(4) as mentioned above. Even though the confiscation authority has satisfied the procedure, namely, (i) to seize the animal vessel, cart or other vehicle; (ii)to confiscate the animal, vessel, cart or other vehicle and; (iii)to prosecute the owner of such animal, vessel, cart or other vehicle the confiscation authority has not given any option to the petitioner to pay in lieu of confiscation, an amount not exceeding the market price of the vehicle before passing the order of confiscation. Mr.N.R.Elango, learned Government Advocate, contends that the operative portion of the order of confiscation which is referred to above has to be read as an option intended to comply with the second proviso Sec. 14(4) as 10 days time was given to the petitioner from the date of receipt of the order and only thereafter, the order of confiscation was made absolute. I do not agree with the contention of the learned Government Advocate. It is settled in law that when the statute requires that the authorities has to follow the procedure in the manner prescribed under the statute namely, to give an option to the owner of the vehicle to pay an amount not exceeding the market price of the vehicle as provided under the second proviso to Sec.14(4), the authorities are expected to follow the procedure prescribed under the statute without taking any exception to the procedure prescribed under the statute. Therefore, an option sought to be given to the petitioner under the second proviso to Sec.14(4) cannot be merged with the order of confiscation itself as being suggested by the learned Government Advocate, in the instant case. In the absence of any independent option to the petitioner before taking a decision to confiscate the vehicle the impugned order of confiscation shall not satisfy the second proviso to Sec. 14(4) of the T.N.P.Act. In my opinion, when the second proviso contemplates that the owner or the person from whom such vehicle is seized, shall be given an option to pay an amount not exceeding the market price of such vehicle in lieu of its confiscation, such option should be given effect to by an independent proceeding without merging that option with a decision of confiscation itself. Otherwise, a merger of giving an option along with the decision of confiscation would render the very option unworkable and therefore unreasonable and an arbitrary exercise of power for the following reasons: (i)While giving an option as contemplated under second proviso to Sec.14(4) of the Act the confiscating authority is expected to mention (a) the market price of the vehicle as fixed for the purpose of such option and; (b) to mention an amount, not exceeding such market price of the vehicle which is required to be paid by the owner or the person from whom the vehicle was seized. Therefore, by mentioning the said two amounts, namely, the market price as well as the amount required to be paid, the owner or the person from whom the vehicle was seized is provided with another opportunity either to accept or to object the market price if it is arbitrary fixed and/or to make a further request to reduce the amount required to be paid by him. Therefore, an independent option has to be given to the owner or the person from whom the vehicle was seized, before taking a decision of confiscation. (ii)Secondly, under Sec. 14(5), a right to appeal is provided to the owner or the person from the vehicle is seized to challenge the order of confiscation. Therefore, an independent option has to be given to the owner or the person from whom the vehicle was seized, before taking a decision of confiscation. (ii)Secondly, under Sec. 14(5), a right to appeal is provided to the owner or the person from the vehicle is seized to challenge the order of confiscation. By reading the second proviso to Sec.14(4) harmoniously with Sec.14(5) of the Act wherein an appeal is provided as mentioned above, it is apparent that in view of the merger of the option to pay an amount not exceeding the market price of the vehicle seized and to be confiscated with the decision of confiscation itself, as proposed by the proceedings dated 27.5.1994 in the instant case, an implied right provided under the second proviso objecting the market value fixed and/or the amount required to be paid while exercising the option has been taken away arbitrarily. …Since the option contemplated under second proviso to Sec. 14(4) had been merged, with the decision of confiscation itself, as claimed by the learned Government Advocate, the impugned order of confiscation is unreasonable arbitrary and illegal for the reasons mentioned above. The non-compliance of such procedure contemplated under second proviso to Sec. 14(4) vitiates the order of confiscation dated 27.5.1994 which was confirmed in the order dated 23.1.1995 in C.A.No.63 of 1994 on the file of the learned Sessions Judge, Chengai M.G.R. District, Chegalpet, Therefore, the same is set aside and consequently the matter is remitted back to the confiscation authority, namely the Superintendent of Police, Prohibition Enforcement Wing, Chengai M.G.R. Zone, Sabari Nagar-116 to give an option to the petitioner to pay an amount not exceeding the market price of the impugned vehicle, after hearing the petitioner and thereafter to pass an appropriate order within 3 months from the date of receipt of this order. 6. Applying the principles laid down in the above decisions, I am obliged to quash the impugned order of confiscations dated 29.8.1994 for the reason that the Collector has failed to give an option to the petitioner to pay an amount not exceeding the market price of such vehicle as required under Second proviso to Sec. 14(a) of the Act. 7. Therefore, the order of confiscation of the Collector dated 29.8.1994 as confirmed by the learned Addl. 7. Therefore, the order of confiscation of the Collector dated 29.8.1994 as confirmed by the learned Addl. District and Sessions Judge dated 31.8.1995 in C.A.No.42 of 1994 are set aside and the matter is remitted to the confiscation authority namely District Collector, Dharmapuri, at Krishnagiri to pass appropriate orders by following the procedure under Sec.14(4) of the Tamil Nadu Prohibition Act, in the light of the directions issued in P.Krishnamoorthy v. District Collector, South Arcot District, Cuddalore and another, Crl.R.C.No.882 of 1993 dated 27.10.1997 and in T.Karthik v. State by Inspector Of Police, P.E.W., Tambaram, Crl.R.C. No.130 of 1995 dated 4.11.1997 as observed above, within three months from the date of receipt of a copy of this order. 8. The revision is ordered accordingly, However, there will be no orders as to costs.