TMI Blog1993 (11) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... the said car could not produce any legal documents in support of licit possession/importation of the said contraband Hasish Ganja, the same alongwith the apprehended car collectively valued at Rs. 7,07,000/- were seized under the Customs Act, 1962 read with Section 43 of the N.D.P.S. Act, 1985 for violation of the provisions of Section 11 of the Customs Act, 1962 read with section of the N.D.P.S. Act, 1985 under a reasonable belief that the contraband Hasish, Ganja the apprehended car are liable to confiscation under Sections 111(d) and 115(2) of the Customs Act, 1962. Sri Mahesh Sahni, driver of the car was also arrested under Section 104 of the Customs Act, 1962 and was forwarded to the Chief Judicial Magistrate, Motihari, who remanded him to judicial custody. 3. Sri Mahesh Sahni in his statement under Sections 107 and 108 of the Customs Act, 1962 stated that on 16-4-1988 one person named Lala (full name address not known) met him at Balua Taxi Stand paid Rs. 25/- and asked to bring the seized car from Chakia by toechaining and he accordingly brought the said car at Motihari and parked the same at Prakash Auto Service Garage, Motihari. He further stated that two persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act. The appellant filed a reply and after personal hearing the impugned order was passed. 8. The learned Advocate Shri A.K. Roy Chowdhury contended that there is no evidence to show that the appellant was in any way concerned with the smuggling of the Hashish and that the imposition of penalty is not in accordance with law. He also contended that the appellant is the owner of the car as could be seen from the registration certificate produced by him in this case. He submitted that his driver was one Rajkishore Singh. On 2-9-1987 the driver Sh. Rajkishore Singh came with one Sipahilal Saha and took the car and thereafter he did not return it. Hence he filed an F.I.R. in Gopalganj Police Station in Crime No. 226/87 dated 3-10-1987 against Rajkishore Singh under 408 I.P.C. Hence during the material time he was not in possession of the car and therefore it is proved that the carrying of contraband goods, was without his knowledge or his agents knowledge and thus the car is not liable to be confiscated. 9. The learned Departmental Representative Shri N.K. Mandal drew our attention to the impugned order and stated that the reasonings therein are based on the evidence. He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that he had the necessary knowledge about the smuggling of the goods and he was a person concerned in the same. In that view of the matter, his findings are [not] tenable. Accordingly, we set aside the penalty imposed on him under Section 112 of the Customs Act. 11. The next point for consideration is whether the applicant is the owner of the car and same is liable for confiscation. It is seen that the applicant claimed the car by filing an application on 22-4-1988. He had also produced a copy of the F.I.R. filed before the Gopalganj Police Station stating that his driver Sh. Rajkishore Singh who took away the car on 20-9-1987 and did not return up. A case was registered in Crime No. 226/87 under Section 408/IPC on 3-10-1987. It is further seen that he had produced the registration certificate showing the registration of the car in his name. These facts prove that he is the owner of the car. Further no one else had claimed the car in this case. Accordingly, he is the owner of the car. Even in the adjudication order there is no specific finding to the effect that he has not proved that he is the owner of the car. 12. Hence we hold that there is sufficient evidence to show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person in charge of the vehicle. 15. It is now seen that the car was intercepted on 17-4-1988. The case of the appellant is that this car was taken away by his driver on 20-9-1987. It is not known as to why the car could not be traced by the appellants for such a long period. In spite of the fact that the complaint was registered on 3-10-1987. However, the fact remains that the driver of the appellant had taken away the car with his consent only. He is not able to prove that the car was used for smuggling of the goods without the consent of his agent or the person in charge of the vehicle as was required in terms of the proviso of Section 115 clause 2 of the Customs Act, 1962. The expression the persons in charge of the conveyance used in Section 115(2) is wide enough to cover Shri Rajkishore Singh who was the driver of the appellant and who took away the car with his consent for the purpose of plying the same as a taxi. There is no evidence produced by appellant to prove that the car was used without the knowledge of his agent or without the knowledge of the person in charge of the conveyance. On the whole, the case set up by the appellant seems to be highly doubtful. How ..... X X X X Extracts X X X X X X X X Extracts X X X X
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