TaxTMI 
TaxTMI 
1979 (3) TMI 203
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....d owner of the car, and held a driving licence was himself on the steering wheel. Abani Maity and the three other occupants of the car were arrested. After completing the investigation, a charge-sheet was submitted against Abani Maity and his companions in respect of an offence under Section 46(a) of the Act. During the trial, out of the accused, Robin, died Kalipada absconded; and the case proceeded only against Abani Maity and his coaccused, Mihir Bose. The Magistrate, ultimately, by his order dated August 21, 1970, convicted both the accused persons under Section 46(a) of the Act and sentenced each of them to pay a fine of Rs. 800/-, and, in default, to suffer six months' rigorous imprisonment. The Magistrate, however, failed to pass orders for the disposal of the contraband Ganja, and the confiscation of the seized car. In the course of the trial, it was established by evidence that the respondent, Abani Maity, was the registered owner of the car and he was driving the vehicle at the time of its interception. It was further established that some packets of contraband Ganja were seized from underneath the driver's seat and some from the luggage boot which was opened w....
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....r. In support of this contention, reliance has been placed upon certain observations of this Court in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs & Ors(1). As against this, learned counsel for the respondent, submits that the words "liable to" used in the context of "confiscation", in Section 63(1) of this Act or in some other penal statutes, do not convey an absolute imperative; they are merely directory and leave it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence has been committed. Section 63 of the Act defines the things liable to confiscation, while Section 64 indicates when the order of confiscation is to be passed by the Magistrate or Collector. Section 63 and 64 read as follows: "63 (1). Whenever an offence has been committed which is punishable under this Act, the (intoxicant) materials, steel, utensils, implement and apparatus in respect of or by means of which such offence has been committed shall be liable to confiscation. (2) Any (intoxicant) lawfully imported, transported, manufactured; had in possession or sold along with, or in addition to, any (intoxicant)....
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....nveyance was used in carrying the contraband intoxicant, (b) the owner of that conveyance is implicated in the commission of the offence. In the instant case, both these conditions were established. It has been found by all the courts below that the car in question (WBD 8169) was used in carrying and transporting contraband Ganja and it was being driven by its owner, Abani Maity, who was convicted of the offence of possessing and transporting the contraband Ganja in this car. The liability to confiscation of the car had, therefore, been incurred. It may be further marked that in sub-section (2) of s. 63 the Legislature has used the words "shall be" in the context of "liable to confiscation". Even, in the proviso to sub-section (2) the expression "shall be liable to confiscation" has been reiterated. Once the facts essential for incurring the liability to confiscation are established, the Magistrate has no option but to adopt any of the two alternative courses indicated in sub-section (1) of Section 64, that is to say, he may either order confiscation of that conveyance; or give its owner an option to pay in lieu of confiscation, such fine as the Magistrate thinks fit. The Magistra....
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....statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, "of an ineffectual angel beating its wings in a luminous void in vain". If the choice is between two interpretations", said Viscount Simon L.C. in Nokes v. Doncaster Amalgamated Collieries, Ltd,(1) "the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result". The provisions of Sections 63 and 64 of the Act are to be interpreted in the light of this principle. The language and scheme of the Excise Act, taken as a whole, show that the purpose of this legislation is not only to raise revenue but also to control and restrict the import, export, transport, manufacture and sale of intoxicants. Free and unrestricted use of intoxicants and illicit trade in contraband intoxicants not only means a loss of revenue to the public exchequer but also has a harmful effect....
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....2A in a given case and that it would be unfair to impose the penalty of confiscation. Two penalties are prescribed, one is the confiscation of the ship, and the other is a fine against the master. In regard to the later penalty, it is within the discretion of the Customs Authority to decide what amount of penalty should be imposed; just as in the case of the first penalty it is not open to it to say that it would not impose the penalty of confiscation against the offending ship, so in the case of the second penalty it is not open to it to say that it will not levy any penalty against the master. In its discretion, it may impose a very small fine against the master if it is satisfied that the master was innocent and despite his best efforts, he could not prevent the contravention of s. 52A. If the two penalties prescribed by cl. (12A) had been alternative, the position may have been different, but they are independent penalties, one is against the ship and the other is against the master; and so, there is no scope for contending that the Customs Authority may refuse to impose one penalty and impose the other, or may refuse to impose either of the two penalties. It must be regarded a....