Judgment:
K.A. Swami, C.J.
1. This appeal is preferred against the order dated 24-3-1994 passed by the learned single Judge allowing W.P. 3314 of 1994 and quashing the order dated 8-6-1993 passed by the Commissioner of Police, Egmore, in proceedings RC No. K2/685/192721/1992, dated 8-6-1993, confiscating the vehicle - auto bearing registration number TSL 9003, under S. 14(4) of the Tamil Nadu Prohibition Act or in lieu of confiscation, to pay Rs. 22,000/- being the market value of the auto, within 10 days from the date of receipt of the order.
2. Learned single Judge has allowed the writ petition on the ground that unless the prosecution is taken out under S. 14A of the Act, confiscation proceedings cannot be taken out. In support of the aforesaid proposition, learned single Judge has relied upon a Division Bench decision of this Court in D. Shanthalakshmi v. State reported in : AIR1983Mad232 .
3. Therefore, the question for consideration is as to whether the power under S. 14(4) of the Act regarding confiscation can be exercised, without launching a prosecution.
4. Sub-secs. (1) to (5) of S. 14 are as follows :
14. Confiscation how ordered :
(1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the Court decides that anything is liable to confiscation such confiscation shall be ordered by the Court.
(2) Where during the trial of a case for an offence against this Act, the Court decides that anything is liable to confiscation, the Court shall order the confiscation.
Provided that no animal, vessel, cart or other vehicle shall be confiscated under sub-sec. (1) or sub-sec. (2) if the Court after hearing the owner of such animal, vessels, cart or other vehicle and any person claiming any right thereto, is satisfied that the owner and such person had exercised due care in the prevention of the commission of such an offence;
(3) 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, the case shall be inquired into and determined by the Collector or other Prohibition Officer in charge of the district or by any other officer authorised by the State Government in that behalf, who shall order such confiscation.
Provided that no such order shall be made until the expiration of fifteen days from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produced in support of this claims.
(4) Notwithstanding anything contained in sub-sec (1) to (3), if the Collector or other Prohibition Officer in charge of the District or any other officer 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 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 fourteens days as may be specified in the notice against the grounds of confiscation; and
(iii) a reasonable opportunity of being heard in the matter. Sub-sec. (1) of S. 14 provides as to how the confiscation can be ordered by the Court. It provides that when the person charged with an offence, alleged to have committed under the Act is convicted or acquitted, it is the Court which has to decide regarding confiscation of the animal, vessel, cart or other vehicle or anything connected with the offence. Thus, it is the Court which has to order for confiscation. Sub-sec. (2) further provides that if, in the course of the trial of the case, the Court decides that anything is liable to confiscation it can order for confiscation of the same. However, no such confiscation can be made, if the owner of such animal, vessel, cart or other vehicle and any person claiming any right thereto, satisfies the Court that he had exercised due care in the prevention of the commission of such an offence. Sub-sec. (3) of S. 14 deals with a case where the offender is not known or cannot be found or when anything liable for confiscation under the Act, and not in possession of any person cannot be satisfactorily accounted for, shall have to be enquired into and determined by the Collector or other prohibition officer in charge of the District, or by any other officer authorised by the State Government in that behalf and who is empowered to order confiscation of such animal, vessel, cart or other vehicle. It also further provides that such confiscation shall not be made until the expiration of 14 days from the date of seizing the things intended to be confiscated or without hearing the persons if any claiming any right thereto and evidence if any which they may produce in support of their claim.
5. Whereas, sub-sec. (4) of S. 14, which opens with a nonobstante clause empowers the Collector or other Prohibition Officer in charge of the District or any other officer authorised by the State Government in that behalf, to order for confiscation of any animal, vessel, cart or other vehicle used in the commission of such offence under the Act, if satisfied that an offence has been committed under the Act, whether or not a prosecution is justified for such offence. Such confiscation would be without prejudice to any other punishment to which the offender is liable under the Act. Sub-sec. (4) of S. 14 overrides the provisions of sub-secs. (1) to (3) thereof, inasmuch as it opens with the words 'notwithstanding anything contained in sub-secs. (1) to (3)'. Therefore, it is clear that for exercising the power under sub-sec. (4) of S. 14 of the Act prosecution of an offender before the Court for the offence committed under the Act is not necessary. The proviso to sub-sec. (4) makes it incumbent upon the Collector or other Prohibition Officer incharge of the District or any other Officer authorised by the State Government in that behalf to issue a notice in writing to the owner or the person from whom such vessel, cart or other vehicle seized, stating the grounds on which it is proposed to confiscate the animal, vessel, cart or other vehicle. The proviso further makes it incumbent upon the aforesaid officers to afford an opportunity to such owner or other person for making representation in writing within a reasonable time not exceeding 15 days as may be specified in the notice. In addition to this, the proviso also further provides that even after affording reasonable opportunity of being heard, if the authority comes to the conclusion that the animal, vessel, cart or other vehicle seized in the case should be confiscated, 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.
6. Sub-sec. (5) of S. 14 gives a right of appeal to any person aggrieved by the order of confiscation passed under sub-sec. (4) and such an appeal can be preferred within one month from the date of receipt of such order before the Court of Sessions having jurisdiction. Whereas S. 14-A, only incorporates the rule of evidence, and it provides under what circumstances, the owner of the animal, vessel, cart or other vehicle canbe deemed to be guilty of such offence, used in the commission of any offence under the Act is liable to be confiscated, the owner of the same shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished according to the provisions of the Act, unless such owner satisfies the Court that he had exercised due care in the prevention of the commission of such offence. Thus, S. 14-A in the circumstances stated therein shifts the burden upon the owner of the vehicle to prove that he had exercised due care in the prevention of the commission of such offence and, therefore, he shall not be proceeded against and punished under the Act.
and in a case where any animal, vessel, cart or other vehicle.
7. A comparison of sub-sec. (4) of S. 14 as it stood prior to substitution by Act No. 24 of 1990, with effect from 22nd May, 1990 and the sub-sec. (4) of S. 14 as it stands after the substitution would make it clear that the decision of a Division Bench of this Court in D. Santhanalakshmi's case which considered old Section 14(4), : AIR1983Mad232 does not hold good for interpretation of sub-sec. (4) of S. 14 as it stands today. There is a vast difference between the two sub-sections. The said provisions are as follows :-
Prior to substitution After Substitution--------------------- ------------------ Notwithstanding anything contained in Notwithstanding anything sub-sections (1) to (3) the Collector contained in sub-section (1) to or other Prohibition Officer in charge (3), if the Collector or other of the district or any other officer Prohibition Officer in charge authorised by the State Government in of the District or any other that behalf, shall detain the animal, officer authorized by the state vessel, cart or other vehicle used in Government in that behalf is the commission of an offence against satisfied that an offence has this Act till the case is disposed of been committed against this act by the Court and notwithstanding anything and whether or not a prosecution contained in the Code of Criminal Procedure, is justified for such offence, 1973 (Central Act 2 of 1974), no interim he may without prejudice to order regarding the disposal of such any other punishment to which property shall be passed by the Court the offender is liable under till the case is disposed of. the Act, order confiscation of any 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.
Thus, it is clear that sub-sec. (4) of S. 14 of the Act, as it stood prior to substitution, subjected the confiscation proceedings by the Collector or other prohibition officer in charge of the District or any other officer authorised by the State Government in that behalf to the result of the prosecution, whereas, the substituted section has removed such an embargo. Consequently, it would now be open to the Collector or other prohibition officer in charge of the District or any other officer authorised by the State Government in that behalf to proceed with the confiscation proceedings if such an officer is satisfied that an offence has been committed against the Act, irrespective of the fact whether or not a prosecution is justified for such an offence. Such a proceeding would be without prejudice to any other punishment to which the offender is liable, be in the prosecution that may be launched in the Court or any other punishment to which the offender is liable under the Act. It also follows that even after the confiscation under sub-sec. (4) of S. 14 of the Act, it will still be open to the Collector or other prohibition officer in charge of the District or any other officer authorised by the State Government in that behalf to prosecute the owner or the person found in possession of the vehicle, animal, vessel or cart used in the commission of the offence. The words, 'whether or not a prosecution is justified for such offence' and the non-obstante clause occurring in the substituted sub-sec. (4) of S. 14 make all the difference between the old and the new sub-sec. (4) which empowers the collector or other prohibition officer in charge of the District or any other officer authorised by the State Government in that behalf to proceed with the confiscation proceeding without launching a prosecution. That being the position we find it very difficult to agree with the view taken by the learned single Judge.
8. It is contended before us that the impugned order cannot be considered to be the one passed under sub-sec. (4) of S. 14 of the Act, and therefore the remedy of appeal is not available. It is also not possible to accept this contention. Firstly, the order itself in specific terms states that it is passed in exercise of the power under sub-sec. (4) of S. 14. Secondly, merely because there is a reference to S. 14-A in the course of the order passed by the 1st respondent, it does not change the character of the order, nor does it cease to be the one passed, confiscating the vehicle in question under S. 14(4) of the Act. As per sub-sec. (5) of S. 14 of the Act, any person aggrieved by an order of confiscation passed under sub-sec. (4) may, within one month from the date of receipt of such order, appeal to the Court of Sessions, having jurisdiction. Thus, the substantial remedy by way of appeal to the Sessions Court has been provided. The Sessions Court is entitled to go into the evidence and on appreciation of the evidence, it can come to the conclusion that the order of confiscation is not warranted on facts and also on law. That being so, in such a case, where a substantial remedy by way of appeal is provided, it is not at all just, appropriate and expedient to exercise the jurisdiction under Art. 226 of the Constitution. We have been pointing out every now and then that jurisdiction under Art. 226 is not intended to bypass the statutory remedy provided by way of appeal, which is a substantial remedy.
9. For the reasons stated above, the appeal is allowed. The order dated 24-3-1994 passed in W.P. 3314 of 1994 is set aside. The writ petition is dismissed, reserving liberty to the writ petitioner to prefer an appeal under sub-sec. (5) of S. 14 of the Act to the Sessions Court, having jurisdiction over the case, within one month from today. Till then, the Commissioner of Police shall not proceed to confiscate the vehicle in question. If it has already been confiscated and not disposed of, it shall not be disposed of, till the expiry of 30 days. However, we make no order as to costs.
If an appeal is filed by the writ petitioner within the aforesaid period, the Sessions Court, having jurisdiction, shall deal with the appeal on merits and in accordance with law, without going into the question of limitation.
10. Appeal allowed.