TMI Blog1986 (3) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... ns unloading some bundles from a lorry bearing registration No. TNT 276 at Ariyakulam cross Road near Palayamkottai and loading them in a van TNI 5058. There were 8 bundles in the lorry and two in the van, and Sultan, the owner of the goods, on interrogation by the authorities admitted that the goods were Indian textiles valued at Rs. 50,000/-, meant for illicit export out of India. The goods were seized under mahazar as per law attested by witnesses and the proceedings instituted against the appellant and others, after due investigation, eventually resulted in the impugned order now appealed against. 3. The learned Counsel for the appellant submitted that Section 115(2) of the Act would not apply to the facts and circumstances of this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng goods, as in the instant case, confiscability of the vehicle in question would follow automatically as a matter of sheer legal consequence. Finally the learned SDR resubmitted that the appellant has not proved to have taken reasonable precautions as enjoined on her under Section 115(2) of the Act. 5. I have carefully considered the submissions of the parties herein. The important question that arises for my determination in this appeal is whether the vehicle in question is confiscable in the facts and circumstances of this case. It would be relevant and proper to extract Section 115(2) of the Act which would have a bearing on the issue arising for determination in this case. Section 115(2) reads as under : 115."(2) Any conveyance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyance used as a means of transport in the smuggling of any goods would become liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any and the person in charge of the conveyance and that each of them had taken all such precautions against such use and for the time being specified in the rules. In the instant case, under the impugned order the adjudicating authority himself has categorically found that neither the owner nor the driver had any knowledge of the conveyance being used as a transport in the smuggling of the goods under seizure. Therefore, consistent with his finding, in my opinion, the vehicle should have been released with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement has been recorded from him. Therefore in the context of the admitted finding by the adjudicating authority under the impugned order that neither the appellant nor the driver had any knowledge about the alleged attempted smuggling, and when Kattuva Maideen, the person who used to look after the vehicle as and when time permitted has not been examined during investigation, there is absolutely no ray or scintilla of evidence to bring it within the mischief and ambit of Section 115(2) of the Act. The adjudicating authority under the impugned order has observed as follows : . . . . it was always used at the instance of her brother Kattubhava, who acted as agent, and knowingly had allowed the use of the lorry under the directions of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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