TMI Blog1969 (7) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the car was used as a means for transport in smuggling of goods to Pakistan. 3.The contention of the Customs Authorities was that on April 9, 1967, the said car along with another car bearing No. WBC-36 were intercepted on Jessore Road near Bongaon from which place an unauthorised route leads to East Pakistan. The said two cars were brought to the Customs Office for rummaging. On search of the said car No. WBB-9308 textile goods and other miscellaneous goods including three wrist watches and a pair of gold ear-rings were recovered. The passenger of the car one Kamaruddin claimed ownership of all the goods and also claimed that he had hired both the cars, Car No. WBB 9308 from the respondent No. 3 and the other car from one Jagat Narayan Singh and the fare was fixed at Rs. 85/- for each car. The said passenger also stated that he came to India on April 8, 1967 through an unauthorised route. Statements were made by the drivers of the two motor cars to the Customs Authorities as to the manner in which the car was engaged and the loading of the goods and certain currency notes. The Customs Authorities seized the goods and the currency notes on the ground that they were being e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be." The other section is section 125(1) which is as follows : - "(1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon." It was argued that under section 125(1) the general power to confiscate goods the importation or exportation of which were prohibited and in the case of any other goods was create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of confiscation. 7.On behalf of the Respondents it was firstly argued that the petitioner was not the owner of the vehicle at all as the stand taken by him in his reply to the show cause notice was that he was a financier only and not the owner. In support of the contention that the financier in a hire purchase agreement is not the owner and that the ownership vests in the hirer reliance was placed on a decision of this Court reported in A.I.R. (1967) Cal. 256. The next contention on behalf of the respondent was that the proviso to sub-section (2) of section 115 had no application, as the car was not used for hire. It was argued that in order to use a car for hire it must be lawfully used for such hire upon a licence or permit being obtained from the appropriate authorities under the Motor Vehicles Act. This point was developed by contending that an illegal hire could not have been in the contemplation of the legislature in enacting the proviso to sub-section (2) of the Act and that the sub-section contemplated only a lawful hire of a conveyance, and if it was a motor car a permit or licence was needed for using a motor vehicle for hire. 8.It was next argued that section 125 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 1 that the petitioner was the owner of the vehicle and that the respondent No. 3 was only the hirer. The petitioner contention was that it was the owner and in support of this argument he relied on the hire-purchase agreement. But, even assuming that the petitioner was not the owner, the ownership must vest in either the petitioner respondent No. 3 and in either case the order for confiscation of the vehicle without giving the option or paying a fine in lieu of such confiscation cannot be upheld. I must therefore hold that the order of confiscation made by the respondent No. 1 is not according to the provisions of the Act. 11.But there is, however, one other objection raised on behalf of the respondent No. 1 which seems to me to be fatal. Under section 126 of the Act an order of confiscation once made has the effect of vesting the goods so confiscated in the Central Government. In this case an order of confiscation has been made and until quashed or set aside it has the effect of vesting motor vehicle confiscated in the Central Government. But the Central Government has not been impleaded as a party in this application and in my view in the absence of the Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the impugned order has been made by the Collector of Customs and therefore the petitioners under S. 128 (1) of the Act could have preferred an appeal to the Central Board of Revenue, but it has preferred no such appeal, and at any rate there is no material before me to show that there was a pending appeal. In that view of the matter I cannot accept Mr. Bose's contention that the order of confiscation has not become final. I should not, however, that Mr. Bose also referred to sub-section (2) of section 126 which prescribes that the officer adjudging confiscation shall take and hold possession of the confiscation goods. It was argued that sub-section (2) of section 126 made it clear that possession of the confiscated goods was to be held by the Officer making the order of confiscation and therefore the vesting was not final. I cannot accept this contention. Custody and possession is one thing and title arising out of a statutory vesting is a different thing altogether. Sub-section (2) of section 126 merely gives the officer making the order of confiscation the power to seize the goods forthwith, upon making of the order of confiscation. The vesting of the title in the goods tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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