Where, on the commission of an offence under the ExciseOrdinance, an order of confiscation is made under section 51 of tiieOrdinance, the owner of the thing confiscated should be given anopportunity of being heard against she order; where the ownerhimself is not convicted of the offence,, no order of confiscationshould be made against the owner, unless he is implicated in theoffence which renders the thing liable to confiscation.
PPEAL from an order of the Police Magistrate of Anuradha-pura confiscating the motor car belonging to one Chelliah,
the renter of the arrack rent of the Eastern Province. During theabsence of Chelliah, the driver of the car and one Eamalingam, anemployee of Chelliah, were charged and convicted of havingtransported arrack in the car in breach of section 12 of the ExciseOrdinance. The learned Police Magistrate thereupon ordered theconfiscation of the car. In appeal the case was sent back in orderthat Chelliah might be given notice before the order of confiscationis made. When the case went back, the Magistrate after issuingnotice on Chelliah and hearing; the evidence produced by him madeorder confiscating the car, unless Chelliah paid a fine of Rs. 200.From this order the present appeal was brought.
H. V. Perera (with him Spencer Rajaratnam), for appellant.
Illangakoon, C.C., for respondent.
September 8, 1924. Schneider J.—
One Chelliah was the renter of the arrack rent of the EasternProvince. The evidence proves that he owned a car which was-used in connection with the working of the rent. There is roomin the evidence to suppose that the .par had been sometimes used foi*transporting arrack. During the absence of Chelliah, Ponniah, themanager of his rent at Trincomalee, is said to have dispatchedsome arrack in the car. Besides the driver of the car, the onlyother person in it was one Ramalingam who was also an employee,of Chelliah. The car broke down in the neighbourhood of Mihintale,and the discovery was then made by some Government official thatthe arrack was being transported without a permit. The evidence
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1924. seemed to suggest that the arrack was being conveyed to some areathe Northern Province, where the sale of arrack is not permitted.
J. 'The driver of the car and Ramalingam were then charged, and wereSinnetamby convicted of having transported the arrack in breach of section 12of the Excise Ordinance, No. 8 of 1912, and were punished underRamalingam, sec^on 43 of that Ordinance. The Magistrate also ordered theconfiscation of the car. He did this under the provisions ofsection 52 (1) of that Ordinance. Chelliah was no party to theproceedings which resulted in the conviction .of his chauffeur andservant Ramalingam.' He appealed. The case wag sent back bythis Court in order that Chelliah might be noticed before the orderconfiscating the car was made. Sampayo J. who decided theappeal pointed out in his judgment that, although there was noprocedure laid down in the Excise Ordinance as to how the order ofconfiscation is to be made, in his opinion, the owner of a car orother conveyance should have some sort of notice. He statedin his judgment: “ The Magistrate is given a discretion by section 52either to confiscate the car or conveyance, or to require the ownerto pay a fine. It stands to reason that the owner, if he were presenton the occasion when the question of confiscation was beingconsidered, might sho^ cause which would induce the Court toaward a fine instead of making the serious order of confiscation,especially in the case of such a valuable vehicle as a motor car."There is one passage in his judgment which appears to suggestthat he was sending the case back to the Magistrate only in orderthat the question of an option of fine might be considered.^ Whenthe case went back to the Magistrate, notice was issued on Chelliahand evidence produced by him was heard by the Magistrate. Uponthat evidence the Magistrate came to the conclusion that it wasproved that Chelliah was absent, being in Jaffna, at the timethe arrack was dispatched from Trincomalee. He drew theinference that Chelliah was not altogether innocent in regard to thetransport of the arrack, because Chelliah admitted that Ponniah andRamalingam were both in his employment even at the time he gaveevidence before the Magistrate. The Magistrate then made orderthat the car should be confiscated unless Chelliah paid a, fine ofRs. 200 by the 3rd of July last. From this order Chelliah has nowappealed. The learned Magistrate's order would be unimpeachableif there was evidence to support his finding that Chelliah was notaltogether innocent in regard to the offence committed by hisservants. It seems to me that the-evidence is altogether insufficientto support the finding that Chelliah was in any manner concernedwith the transport of the arrack in his. car. Chelliah produced a“ post card which is in Tamil,* and of which there is no translation.He told the Magistrate that in that post card he had informed hismanager that he was going to get some spare parts for his car,,and asked him not to use it in the meanwhile.. This post card
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•appears, from the Post Office stamp on it, to have been dispatchedfrom the Jaffna Post Office and to have been received at the SohnmdebTrincomalee Post Office. The date is indistinct. It would appear,therefore, that the evidence rather points to the innocence of SinnetambyChelliah than to any complicity On his part with the unlawful act ^am^lngamof his servants. For the purpose of deciding this appeal, it isnecessary to consider the position of the owner of any of the thingswhich are mentioned in section 51 as liable to confiscation in those*cases, where the owner himself is not convicted of any offence.*
Sections 51 and 52 contain no express provision by which theowner could be touched with notice before an order of confiscationis made. In the special case contemplated in section 52 (2), it isprovided that any person claiming to be owner is to be heard.
Our Excise Ordinance was borrowed from the Bengal Excise and.
Licencing Act (VII. B. C. of 1878). Mr. Perera who appearedfor the appellant in this appeal drew my attention to the caseof Oolap Saha v. Emperor.l In that case it was held that theboat in which the excisable* article was carried should not beconfiscated under the provisions of section 75 of the Bengal Act{which corresponds to section 52 of our Ordinance) unless it isfound that the owner of the boat was in some way implicatedin the offence. The learned Judges who decided that case saidin their judgments that although the section empowers- the Courtto confiscate the boat, yet, as a matter of sound judicial discretion,such an order should not be passed in the absence of the owner ofthe boat. If I may say so with all respect, I approve the principleto be deduced from that case, which is that before an order ofconfiscation is made, the owner should be given an opportunity ofbeing heard, and that an order of confiscation should not be made,unless the owner is in some way implicated in the offence whichrenders the thing liable to confiscation.
I would, therefore, set aside the Magistrate’s order that the carshould be confiscated, and direct that the car be delivered to Chelliah.
Set aside.
112 Cal. Weekly Notes 139.