Judgment

SARKARIA, J.:- This appeal by special leave is directed against a judgment, dated March 5, 1971, of the High Court of Calcutta. The facts are as follows:

2. Abani Maity, respondent herein, and three other persons were tried by the Magistrate, First Class, Alipore, District 24 Parganas, in respect of a charge under S. 46 (a) of the Bengal Excise Act 1909 (hereinafter referred to as the Act).

3. In the night of July 29, 1963, at about 7.30 p.m., the Excise staff intercepted Motor Car No. WBD 8169 at village Rajpur, Police Station Sonarpur. The car was searched and thereupon 199 kgs. 700 grams contraband Ganja was recovered from inside the car. The respondent, Abani Maity, who was the registered owner of the car, and held a driving license, 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 S. 46 (a) of the Act.

4. During the trial, out of the accused, Robin, died, Kalipada absconded; and the case proceeded only against Abani Maity and his co-accused, Mihir Bose.

5. The Magistrate, ultimately, by his order dated August 21, 1970, convicted both the accused persons under S. 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.

6. 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 drivers seat and some from the luggage boot which was opened with a key produced by the respondent. Thus, the evidence on record indubitably established that the car (Registered No. WBD 8169) was used for the transport of this contraband Ganja by its owner, Abani Maity, respondent.

7. After his conviction, on Nov. 16, 1970, Abani Maity made an application to the Magistrate, praying for return of the car and the other articles seized by the Excise Staff. On the same day, the Magistrate without issuing any notice to the prosecution, passed an ex parte order directing return of the seized car and other articles to the accused-respondent.

8. Against that order, dated November 16, 1970, of the Magistrate, the State preferred a revision in the High Court, which was finally heard by a Division Bench, who, by an order dated March 5, 1971, affirmed the Magistrates order relating to the return of the car to the accused-respondent, but directed confiscation of the Ganja.

9. Mr. Chatterjee, appearing for the appellant-State, does not now request the Court to pass an order of confiscation of the aforesaid car, obviously because the passing of such an order after a lapse of about 16 years from the date of its seizure, will be an exercise in futility. The learned counsel, however, submits that this Court should, for the guidance of the courts below, clarify the law on the point so that the efficacy of the provisions contained in Ss. 63 and 64 of the Act as an instrument for combating and preventing such anti-social crime is not undermined due to misinterpretation or misunderstanding in regard to their import, nature and application.

10. It is contended that as soon as Abani Maity, the owner-driver of this car was found guilty of using this car for transport of contraband Ganja, the Magistrate was bound, in addition to the conviction of Abani Maity for that offence, to pass an order for confiscation of the car, or to give its owner, Abani Maity, an option to pay in lieu of confiscation, a fine, as the Magistrate thought fit. The point sought to be made out is that the words "shall be liable to confiscation" occurring in S. 63 (1) read with sub-sec. (