Madras High Court
R.Sanjeevi vs State Of Tamil Nadu on 22 January, 2013
Author: R. Sudhakar
Bench: R. Sudhakar
IN THE COURT OF JUDICATURE AT MADRAS DATED 22.1.2013 CORAM THE HONOURABLE MR. JUSTICE R. SUDHAKAR Writ Petition Nos.21609 to 21611 of 2002 and W.P.M.P.Nos.29891, 29893 and 29896 of 2002 and W.V.M.P.Nos.1052 to 1054 of 2002 R.Sanjeevi, ... Petitioner in all W.Ps. vs. 1.State of Tamil Nadu, represented by The Secretary to Government, Home Department, Secretariat, Fort St. George, Chennai-600 009. 2.The Inspector of Police, Uthangarai Police Station, Uthangarai, Dharmapuri District. 3.The Additional Superintendent of Police, Prohibition and Enforcement Wing, Dharmapuri. 4.M/s.Khoday India Limited, 54, Kannayakana Agrahara, Anjanapura Post, Anekal Taluk, Bangalore 560 062. 5.M/s.New Horizan Sugar Mills Limited, Ariyur, Kandamangalam Post, Pondicherry State, represented by its Director. ... Respondents in all W.Ps. Writ Petition No.21609 of 2002 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in proceedings C.No.06/ADSP/PEW/DPI/2002 dated 20.5.2002 and quash the same as illegal, arbitrary and without jurisdiction and consequently forebear the respondents from in any manner seeking to interfere with the transportation of molasses from any place outside Tamil Nadu to any other place outside Tamil Nadu through the state of Tamil Nadu. Writ Petition No.21610 of 2002 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in proceedings C.No.05/ADSP/PEW/DPI/2002 dated 20.5.2002 and quash the same as illegal, arbitrary and without jurisdiction and consequently forebear the respondents from in any manner seeking to interfere with the transportation of molasses from any place outside Tamil Nadu to any other place outside Tamil Nadu through the state of Tamil Nadu. Writ Petition No.21611 of 2002 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in proceedings C.No.07/ADSP/PEW/DPI/2002 dated 20.5.2002 and quash the same as illegal, arbitrary and without jurisdiction and consequently forebear the respondents from in any manner seeking to interfere with the transportation of molasses from any place outside Tamil Nadu to any other place outside Tamil Nadu through the State of Tamil Nadu. For Petitioner in all W.Ps. : Mr.Rahul Balaji, For Respondents in all W.Ps. : Mr.N.Srinivasan, Additional Government Pleader for R1 to R3 R4 and R5 no appearance. ----- COMMON ORDER
Writ Petition No.21609 of 2002 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in proceedings C.No.06/ADSP/PEW/DPI/2002 dated 20.5.2002 and quash the same as illegal, arbitrary and without jurisdiction and consequently forebear the respondents from in any manner seeking to interfere with the transportation of molasses from any place outside Tamil Nadu to any other place outside Tamil Nadu through the State of Tamil Nadu.
2. Writ Petition No.21610 of 2002 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in proceedings C.No.05/ADSP/PEW/DPI/2002 dated 20.5.2002 and quash the same as illegal, arbitrary and without jurisdiction and consequently forebear the respondents from in any manner seeking to interfere with the transportation of molasses from any place outside Tamil Nadu to any other place outside Tamil Nadu through the State of Tamil Nadu.
3. Writ Petition No.21611 of 2002 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in proceedings C.No.07/ADSP/PEW/DPI/2002 dated 20.5.2002 and quash the same as illegal, arbitrary and without jurisdiction and consequently forebear the respondents from in any manner seeking to interfere with the transportation of molasses from any place outside Tamil Nadu to any other place outside Tamil Nadu through the State of Tamil Nadu.
4. The relief sought for in all three writ petitions is one and the same. By consent, all three writ petitions are taken up together for final disposal.
5. Heard Mr.Rahul Balaji, learned Counsel appearing for the petitioner and Mr.N.Srinivasan, learned Additional Government Pleader appearing for the respondents in all three cases.
6. The brief facts in these three cases are as follows:- On 10.4.2002 three Tata Benz Lorries owned by the petitioner, namely, TN.32/Y-9549, KA-01/B-5149 and TN.32/Y-9959 respectively were stopped by the Inspector of Police, Prohibition and Enforcement Wing, Krishnagiri, at the Special Checkpost near Santhi Theatre, Uthangarai Town on Uthangarai-Thiruvannamalai Main Road. In all three lorries, it was found that Molasses was carried from Pondicherry to Karnataka through the State of Tamil Nadu. The respondent authority came to the conclusion that the Molasses was being transported illegally without valid import/export permits and without ML-5 permit issued by the Collector, Dharmapuri. Therefore, as per the impugned orders, three cases were registered by the Uthangarai Police Station under Rule 7(G)(v) of Tamil Nadu Molasses Control and Regulation Rules, 1958 read with Section 24 of the Tamil Nadu Prohibition Act, 1937 and Section 4(1-A) of the Tamil Nadu Prohibition Act, 1937 and Section 194 read with Section 133 of Motor Vehicles Act. It is an admitted case that the molasses are being transported from the Union Territory of Pondicherry to the State of Karnataka. The Inspector of Police arrested the driver and cleaner. The vehicles were seized and samples were taken.
7. A show-cause notice dated 25.4.2002 was issued to the owner of the vehicles, namely, the petitioner, in each one of the cases on the allegation that they had transported molasses from Pondicherry to Karnataka without ML-5 permit issued by the Collector of the District concerned. Reply dated 29.4.2002 was submitted stating that there is no violation of law. The third respondent Additional Superintendent of Police, however, in his final order dated 20.5.2002 came to conclusion that the owner of the vehicles allowed the lorries to transport molasses in contravention of Rule 7(G)(v) of the Tamil Nadu Molasses Control and Regulation Rules, 1958, besides contravening other provisions of law as stated above. He ordered confiscation of the lorries with an option to pay certain amount in-lieu of confiscation. On deposit of such amount it was stated that the vehicles can be redeemed or released forthwith. Challenging the said final order the three writ petitions have been filed.
8. Mr.Rahul Balaji, learned counsel for the petitioner contends that the entire exercise by the respondent authority is contrary to the provisions of the Tamil Nadu Prohibition Act, 1937 and Tamil Nadu Molasses Control and Regulation Rules, 1958. The respondent authority has no jurisdiction to seize the vehicles which were carrying Molasses from Pondicherry to Karnataka. The said goods are not liable for seizure or confiscation. As the goods were in transit, there is no requirement for taking license much less ML-5 Licence as contended.
9. At the outset, the Tamil Nadu Molasses Control and Regulation Rules 1958 provides the procedure for grant of licence and permit under various categories as set out in Rule 4 and it reads as follows:-
4.Licence and permit: (1)The licences and permits prescribed in these rules are-
(i) Form ML-2 for the possession and sale of molasses;
(ii) Form ML-4 for the possession and use of molasses;
(iii) Form ML-5 for the import or export of molasses; and
(iv) Form ML-6 for the transport of molasses within the State; None of the said Forms is applicable in the case of transport of molasses from Pondicherry to Karnataka in transit via the State of Tamil Nadu. In other words, the requirement for taking licence under any of the Forms mentioned under Rule 4 of the Tamil Nadu Molasses Control and Regulation Rules 1958 does not arise in such transport.
10. According to Section 3(19-A) of the Tamil Nadu Prohibition Act, 1937, the word transit means to move through the territory of the State of Tamil Nadu from any place in India outside the State of Tamil Nadu to any other place in India outside the State of Tamil Nadu. According to Section 3(20) of the Tamil Nadu Prohibition Act, 1937, the word transport means to move from one place to another within any local area to which this Act applies.
11. The respondent authority has referred to a provision, namely, 7(G)(v) of the Tamil Nadu Molasses Control and Regulation Rules, 1958 which is not there in the Rule itself. In any event, assuming that it may relates to Rule 7(2), Import Export Licenses in Form ML-5 which reads as under:
7. Procedure for the grant of licences and permit:-
(1) Licences in Form ML-2 and ML-4 .....
(2) Import Export licence in Form ML-5:- (a) Every dealer or consumer holding a licence in Form ML-2 or Form ML-4 as the case may be, desiring to import molasses from places outside the State and every dealer desiring to export molasses outside the State shall apply to the Collector of the district for a licence in Form ML-5 for the import or export of molasses. The application shall be affixed with a Court fee label of the value of one rupee and fifty paise and shall contain the following particulars:-
(i) Name and address of the applicant;
(ii) Description of licence held him;
(iii) Quantity of molasses allowed for possession under the licence;
(iv) Quantity of molasses proposed to be imported/exported;
(v) Name and address of person from/he whom it is proposed to import/export the molasses;
(vi) Mode of conveyance and route;
(vii) The date by which it is proposed to complete the import/export.
Each import/export shall be covered by a separate import/export licence and a separate application shall be made for the purpose. there is nothing to show that it covers the circumstance where there is a transport of molasses in transit.
12. A counter affidavit has been filed reiterating the stand taken in the order under challenge. Para 5 of the counter reads as follows:-
5) Further in TNP Act the word liquor is defined U/s.3(9) as follows: Liquor includes toddy, arrack, sprit (or) wine, denatured spirits, Beer and all liquor consisting of or containing alcohol. Hence as per the definition given above in the Act Molasses contains alcohol and as such any person who transports or imports (or) exports Molasses within the territory of the Tamil Nadu shall possess valued license issued by the Competent authority of Tamil Nadu State under the Act. But in this case the petitioner being the transporter (contractor) in possession of huge quantity of Molasses in this tanker lorry No.TN-32/Y-9959 did not make any application to the State of Tamil Nadu or obtaining license for the transport or possession or import or export of Molasses within the State of Tamil Nadu. Further it is submitted that under Sec.6A of the TNP Act Sub Sec.1, 2, 3 have dealt with the Control and Regulation of Molasses and also laid down that for the Import, Export, sale or possession of Molasses within the territory of Tamil Nadu license shall be obtained from the competent authorities of the Government of Tamil Nadu and it is also stated that No person shall import, export, transport, sell or have in his possession any quantity of Molasses without license or permit issued by the Competent authorities and any violation of this Section is punishable under TNP Act and the owner of the vehicle is deemed to be guilty for the Commission of the Offence under TNP Act U/s. 14(A) of TNP Act and the above tanker lorry used for committing an offence in violation of Sec. 6(A) of TNP Act and by violating the rules and regulations made under Tamil Nadu Molasses Control and Regulation Rules 1958 and therein he must have been in possession of license issued under Form ML5 for Import/Export of Molasses within the territory of Tamil Nadu and thereby the petitioner also figurers as an accused in this case being the owner and the Contractor who abetted the other co-accused under Section 7 of TNP Act to Committing offence under TNP Act and the vehicle used bearing Tanker Lorry Regn.No.TN-32/Y-9959 is liable to confiscation under Sec. 14(A) of TNP Act. Further a reading of 14(A) would say that the object of this section is to make the owner of the vehicle liable to be punished under TNP Act and also deemed to be guilty of the offence on par with other co-accused and the vehicle is liable for confiscation in this connection. I also relieve upon the discussion of the High Court of Madras in the case of Natarasan and another vs. State Reported in 1992 MLJ (Criminal) Page No.494 and 497 in which it is observed that U/s.14(A) of TNP Act when a vehicle is liable for Confiscation, it is the owner of the vehicle who has to satisfy the court that he had exercised due care in the prevention of the commission of the offence. It is immaterial whether the offender is convicted or acquitted. It is not mandatory on the part of the court to order Confiscation all the cases. But the owner has primary duty to see that his vehicle is not used for the Commission of any offence under TNP Act. Hence, it is submitted that in this case the petitioner and also that the owner of the Tanker Lorry or having very clear knowledge well in advance about the transportation of Molasses within the territory of Tamilnadu from Pondicherry in violation of TNP Act and Rules made under. Further in the above circumstances neither the petitioner nor the owner of the tanker lorry has taken due care in preventing the commission of Crime under TNP Act by transporting Molasses within the State of Tamil Nadu without proper license or permit as enunciated under TNP Act and thereby the petitioner is liable to be prosecuted under TNP Act along with other accused and the lorry and the liquor are liable to be confiscated as per TNP Act. Further Ignorance of law (TNP Act and Rules Made thereunder) is not a ground for excusing the offender. To hold otherwise it would defeat the very object of amending the above provisions relating to confiscation of vehicles. The reasons stated in the counter-affidavit is not the basis on which the impugned order has been passed. Reference is made to section 6(A) of Tamil Nadu Prohibition Act 1937.
13. Section 6(A) of Tamil Nadu Prohibition Act, 1937 reads as follows:-
6-A. Control and regulation of molasses: (1) Except as otherwise provided in sub-sections (2) and (3), no person shall import, export, transport, sell or have in his possession any quantity of molasses.
(2) The State Government may, by general or special order, authorise any officer to grant licences for the import, export, sale or possession of molasses.
(3) The State Government may also authorise any officer to grant permits for the transport of molasses. Section 6-A of the TNP Act deals with restriction on import, export, transport, sale or have in possession any quantity of molasses except under a licence issued by an officer as authorised by the State Government by general or special order to grant licences in this regard. The said control and regulation of molasses only deals with molasses insofar as it relates to import, export, transport, sale or have in possession any quantity of molasses within the State of Tamil Nadu. In accordance with the provision of the Tamil Nadu Prohibition Act, 1937, the Tamil Nadu Molasses Control and Regulation Rules, 1958 has been formulated and Rule 4 deals with four circumstances, namely, ML-2 relates to possession and sale of molasses; ML-4 relates to possession and use of molasses; ML-5 relates to import or export of molasses and ML-6 relates to transport of molasses within the State. None of the four contingencies contemplated under Rule 4 is attracted in the present case as it is clear from the impugned proceedings itself that the Molasses is being transported from Pondicherry to State of Karnataka through Tamil Nadu in transit. Therefore, the question of licence or permit does not arise in this case.
14. Rule 7(2) of the Tamil Nadu Molasses Control and Regulation Rules, 1958, is relatable to Import or Export licence in Form ML-5 from the State of Tamil Nadu. It does not deal with the situation on transit between two different States other than State of Tamil Nadu. This situation is clarified on a reading of Section 6-B of the Tamil Nadu Prohibition Act, 1937 which regulates the transit of liquor. Section 6-B of the Tamil Nadu Prohibition Act, 1937 reads as follows:-
6-B. Regulation of transit of liquor:- (1)Except as otherwise provided in sub-section (2), no person shall transit any liquor.
(2) Subject to the control of the State Government, the Collector or any officer not below the rank of a Deputy Collector empowered by him in this behalf may issue permit for the transit of any liquor in such form and subject to such conditions as may be prescribed. Every application for transit permit shall be made within such time as may be prescribed and shall be accompanied by copies of the export and import permits issued by the concerned States from which, and to which, the liquor is in transit.
(3) The following shall be conditions of every permit issued under sub-section (2):-
(a) that the transit of liquor shall be made along the route or routes specified in the permit; and
(b) that the transit shall be under police escort at such scale as may be prescribed provided by the prescribed authority at the cost of the person who transits liquor. From the above provision, it is distinct and clear that if molasses is being transported in transit through the State of Tamil Nadu, the requirement of a licence or permit does not arise and therefore, the seizure by relying upon the said provision is bad. The entire exercise stems from a misconception that molasses even in transit will fall within the purview of Rule 4 of the Molasses Control and Regulation Rules 1958, which argument cannot be countenanced. Rule 4 of the Tamil Nadu Molasses Control Regulation, 1958 deals with only in relation to a licence or permit on the 4 contingencies referred to in Rule 4 and that is not attracted in the present case. Therefore, the seizure itself is bad and contrary to the above provision and the Molasses Control and Regulation Act, 1958.
15. It is also to be noted that the word liquor has been defined under Section 3(9) of the Tamil Nadu Prohibition Act, 1937 as follows:-
(9) liquor includes toddy, arrack, spirits or wine (denatured spirits), spirits, wine, beer, and all liquid consisting of, or containing alcohol; The word Molasses has been separately defined under Section 3(11-A) of the Tamil Nadu Prohibition Act, 1937 and it reads as follows:-
(11-A) molasses means the heavy dark coloured residual syrup drained away in the final stage of the manufacture of gur or sugar containing, in solution or suspension sugars which can be fermented and includes any produce formed by the addition to such syrup of any ingredient which does not substantially alter the character of such syrup; but does not include any article which the State Government may, by notification, declare not to be molasses, for the purposes of this Act; The above two definition makes a distinction between the liquor and the molasses.
16. As a result, it is clear that in the instant cases when the molasses are transported from Pondicherry to Karnataka in transit, the seizure is per se bad. Consequently, the confiscation of vehicles is bad and consequent levy in-lieu of confiscation is also bad. Accordingly, the impugned orders are liable to be set aside.
17. In view of the above, the impugned orders are set aside and the vehicles, if they have not already been released, are directed to be released forthwith. The three writ petitions are allowed as above. No costs. Consequently, connected miscellaneous petitions are closed.
22.1.2013
Index: No
Internet: Yes
ts
To
1.The Secretary to Government,
Home Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The Inspector of Police,
Uthangarai Police Station,
Uthangarai,
Dharmapuri District.
3.The Additional Superintendent of Police,
Prohibition and Enforcement Wing,
Dharmapuri.
R. SUDHAKAR,J.,
ts
Common Order in WP Nos.21609 to 21611 of 2002
22.1.2013