The opinion of the court was delivered by: SMITH
This is a civil proceeding under Sections 781 to 788 of Title 49 U.S.C., 49 U.S.C.A. §§ 781 to 788, to enforce the forfeiture of a motor vehicle heretofore seized by the agents of the Narcotics Division of the Bureau of Internal Revenue. The libel charges that the vehicle was used to transport and to facilitate the the transportation of 'contraband,' to wit, narcotic drugs, in violation of Section 781 of the said Act. The right of the libelant to enforce the forfeiture is challenged by the owners of the vehicle, Carmen Tino and Edward Pesa, hereinafter identified as the Claimants. The only question raised is one of law.
The Claimants were engaged in the business of renting 'motor vehicles, without a driver,' under the laws of New Jersey, R.S. 45:21-1 et seq., N.J.S.A. 45:21-1 et seq. Pursuant to written agreements between them and one Walter Krenkiewicz, the motor vehicle here in question was rented to the latter on several occasions prior to November 28, 1948, and on each occasion, except the last, was returned upon completion of the rental period or shortly thereafter.
The motor vehicle was rented to the said Krenkiewicz on November 20, 1948 and remained in his possession until the night of November 28, 1948, when he was arrested by the local police on suspicion of burglary. The investigation thereafter conducted revealed that earlier on the same night Krenkiewicz had unlawfully entered the Clinton Pharmacy, East Orange, N.J., and had stolen therefrom $ 1,100 and a quantity of narcotic drugs.
When questioned by the agents of the Division of Narcotics Krenkiewicz admitted the theft and informed the agents that he had transported the stolen merchandise to his home in the vehicle in question. The agents thereafter, with the consent of Krenkiewicz, searched the cellar of his home and discovered the narcotic drugs, which they seized. The seizure of the motor vehicle was then made.
(1) It is admitted by Krenkiewicz, who was called as a witness by the libelant, that the vehicle in question was used not only on the night of November 28th but on several occasions prior thereto, when he burglarized other places of business. There is no evidence, however, that he used the vehicle to transport or facilitate the transportation of 'contraband articles,' as defined by the statute.
The right of the libelant to seize and enforce the forfeiture of a motor vehicle used in violation of the law is statutory. 49 U.S.C.A. §§ 781-788. Its right in the instant case is governed by the Act of August 9, 1939. Section 1(a) of the Act, 49 U.S.C.A. § 781(a), declares: 'It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any * * *, vehicle, or * * *; (2) to conceal or possess any contraband article in or upon any * * *, vehicle, * * *; or (3) to use any * * *, vehicle, * * * to facilitate the transportation, carriage, conveyance, * * *, possession * * *, of any contraband article.' Section 2 of the Act, 49 U.S.C.A. § 782, provides: 'Any * * *, vehicle * * * which has been or is being used in violation of any provision of section 781 of this title, * * * shall be seized and forfeited'. The exceptions contained in this section are not pertinent here and are therefore omitted.
The statute is penal in its nature and therefore must be strictly construed; it may not be extended by implication to cover situations not clearly within its express provisions. It is our opinion that the term 'contraband article' did not embrace the mere possession of narcotic drugs acquired by theft, especially where, as here, the packages bore 'appropriate tax-paid internal-revenue stamps as required by law'. We are willing to concede, however, that if narcotic drugs thus acquired were thereafter possessed 'with intent to sell' of were 'sold or offered for sale' in violation of ...