1979 (3) TMI 203 - SC - Central Excise

Bengal Excise Act Section 64(1) makes magistrate bound to choose confiscation or fine after Section 63 conditions proven

SUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS GOVT. WB. Versus ABANI MAITY

SC held that under Bengal Excise Act Section 64(1), when conditions under Section 63 are proven, the word 'may' acquires force of 'must' and magistrate is ... Interpretation of the expressions 'shall be liable to confiscation' used in Section 3(2) and 'may' in sub-section (1) of Section 64 of the Bengal Excise Act - to confiscate the car, or, in lieu of confiscation, to impose a fine at the option of its owner - HELD THAT:- The language of Section 167(12A) and 183 of the Sea Customs Act, is not in pari materia with those of Sections 63 and 64 of the Bengal Excise Act. It was on the language of these provisions, as they then stood, it was held that the penalties prescribed under Sections 167(12A) and 183 are independent and not alternative. The observations, extracted above therefore, are not applicable in their entirety. Nevertheless, they are a useful guide inasmuch as the expression 'shall be liable to confiscation' used in Section 167(12A) in the context of a vessel found in the Customs waters in circumstances that amounted to a contravention of Section 52A, was held to cast on the Customs Authority an imperative duty to confiscate such vessel. We are of opinion that as soon as on proof of the conditions necessary under Section 63, a conveyance incurs the liability to confiscation, the word 'may' used in Section 64(1) acquires the force of 'must', and the Magistrate is bound to abide by either of the two alternatives viz., confiscation of the conveyance or imposition of the fine in lieu thereof in accordance with that Section. Thus, the discretion of the Magistrate is restricted to choice between these two alternatives. This limited discretion, also, is not to be exercised whimsically, but judicially, in a manner which will not emasculate these provisions or debilitate their potency as an instrument for suppressing the mischief which the Legislature had in view. In the circumstances of this case therefore, it was imperative for the Magistrate, to pass, at the conclusion of the trial, in addition to the conviction of the accused-respondent, an order of confiscation of the car by means of which the offence was committed. With this clarification of the law on the point, the appeal stands disposed of. Issues Involved:1. Legality of the Magistrate's order for return of the seized car.2. Interpretation of the terms 'liable to confiscation' and 'may' in Sections 63 and 64 of the Bengal Excise Act, 1909.3. Whether the Magistrate was bound to order confiscation of the car or impose a fine in lieu thereof.Issue-wise Detailed Analysis:1. Legality of the Magistrate's Order for Return of the Seized Car:The Magistrate convicted Abani Maity and Mihir Bose under Section 46(a) of the Bengal Excise Act, 1909, and sentenced each to pay a fine of Rs. 800/- or, in default, to suffer six months' rigorous imprisonment. However, the Magistrate failed to pass orders for the disposal of the contraband Ganja and the confiscation of the seized car. Subsequently, Abani Maity applied for the return of the car and other articles, and the Magistrate, without issuing notice to the prosecution, passed an ex-parte order directing the return of the seized car and other articles to the accused. The State preferred a Revision in the High Court, which affirmed the Magistrate's order relating to the return of the car but directed the confiscation of the Ganja.2. Interpretation of the Terms 'Liable to Confiscation' and 'May' in Sections 63 and 64 of the Bengal Excise Act, 1909:Section 63(1) of the Act states that materials and conveyances used in the commission of an offence under the Act 'shall be liable to confiscation.' Section 64(1) provides that when a Magistrate decides that anything is liable to confiscation, he 'may either order confiscation or give the owner an option to pay, in lieu of confiscation, such fine as the Magistrate thinks fit.' The appellant argued that the words 'shall be liable to confiscation' make it obligatory for the Magistrate to either confiscate the car or impose a fine in lieu thereof. The respondent contended that these words are directory and leave it to the Magistrate's discretion to confiscate or not to confiscate the vehicle.3. Whether the Magistrate was Bound to Order Confiscation of the Car or Impose a Fine in Lieu Thereof:The Supreme Court held that the liability to confiscation of a conveyance under Section 63 is incurred if two conditions are established: (a) the conveyance was used in carrying the contraband intoxicant, and (b) the owner of the conveyance is implicated in the commission of the offence. In this case, both conditions were established as the car was used to transport contraband Ganja, and Abani Maity, the owner, was convicted of the offence. The Court emphasized that the expressions 'shall be liable to confiscation' and 'may' in Sections 63 and 64 were intended to have a compulsive force. The Magistrate, upon proof of the conditions necessary under Section 63, must adopt one of the two alternatives: either order confiscation of the conveyance or impose a fine in lieu thereof. This limited discretion must be exercised judicially and not whimsically, ensuring the provisions' efficacy in combating anti-social activities.The Supreme Court clarified that the Magistrate was bound to pass an order of confiscation of the car or impose a fine in lieu thereof at the conclusion of the trial. Therefore, the Magistrate's failure to pass such an order was erroneous. The appeal was disposed of with this clarification of the law.