1970 P Cr (PLP)

A Truck No. LEE 8359 belongirn to Mohd. Nawaz 'v. petitioner, has been allegedly involved in the transport of 90 bags State r of Basmati rice from Khankah Dogran Distt. Sheikhupura to M. A. Sukheki District Gujranwala, in violation of the provisions contained in section 3 of West Pakistan Supplementary Paddy and Rice Control Order, 1958, which is made punishable under section 6(I) of the West Pakistan Foodstuffs Control Act. Bashir Ahmad, its Driver, and Aziz, the Cleaner, who were caught by the Police Party on picket duty near Sukheki Railway crossing on the night between the 7th and 8th of August 1968, were challaned by the Police and were convicted by the learned Magistrate vide his order dated 31-3-69. In the concluding paragraph of the judgment an order was also made that Truck No. LEE 8359 belonging to the petitioner stood forfeited to the Government.

2. The two convicts, namely, Bashir Driver and Aziz Cleaner who were sentenced to two years' R. I. each, filed an appeal before the learned Additional Sessions Judge which was dismissed by his order d 15-5-1969.

3. However, during the pendency of this appeal Mohd. Nawaz petitioner filed two applications before the Additional Sessions Judge claiming temporary custody of Truck Superdari in the first instance till the decision of the appeal and for its permanent custody challenging the very legality of the order of forfeiture. It appears, that i19e Additional Sessions Judge did not pass any fern-sat order on these applications while dismissing the appeal filed by the convicts, namely, Bashir Driver and Aziz Cleaner.

4. Feeling aggrieved Mohd. Nawaz has filed the present Cr. Revision in this Court. it is contended on behalf of the petitioner that no order for the confiscation of the Truck could be section 6(2) of the West Pakistan Foodstuffs Control Act, unless he has owner could be deemed to have been posted with the knowledge as or had reasons to believe that his truck was used in this committed contravention.

5. There is obviously considerable force in the contention used by the learned counsel. The relevant provision contained in section 6(2) reads as follows: - "(2) The owner of any vessel, conveyance or animal carrying any property in respect of which an order under section 3 is contravened, shall, if the carrying is part of the transaction involving the contravention and if he knew or had reason to believe that the contravention was being committed, be deemed to have contravened the order, and, in addition to the punishment to which he is liable under subsection (1), the vessel conveyance, or animal shall when the order provides forfeiture of the property in respect of which the order is contravened, be forfeited to the Government."

6. From the above provision it is abundantly clear that in order to justify the forfeiture of the Truck three legal requirements had to be fulfilled; firstly, that the truck should be established to have been used in the transportation of rice in contravention of the law; secondly, that the impugned carrying should form a part of the transaction involving the contravention; and thirdly that the owner of the truck should have the knowledge or reason to believe that a contravention was being so committed through the employment of his truck. When these three legal requirements are satisfied, two consequences would flow there from; firstly, the owner even though not personally present at the spot of being directly involved in the illegal transport of rice would b notionally deemed to have committed an offence and would be, liable under subsection (1) of section 6; secondly, in addition to this punishment his truck would also be liable to forfeiture.

7. In the instant case admittedly the petitioner was not sent up by the Police either as having been directly involved in using his truck in the illegal transport of rice from the controlled area to another controlled area or having beers deemed to be posted with the necessary knowledge or belief that through the employment of his truck such a contravention was being committed. Again no finding to this effect was made by the learned trial Magistrate. It would, thus, inevitably be clear from this that the order regarding the confiscation of the truck was patently illegal and without jurisdiction. 1f an authority is needed, Saeed Khan v. The State (1), which appears to be directed with full force with the facts of the instant case, may be cited in point.'

8. The upshot of the discussion, therefore, is that the order regarding the forfeiture of the truck is set aside and it is directed that the same be handed over to Mohd. Nawaz petitioner who is admittedly its owner. Revision allowed.