ORDER
T.P. Nambiar, Member (J)
1. Being aggrieved by the orders passed by the learned Additional Collector of Customs, Indo-Nepal Border, Muzaffarpur vide No. 14-Cus-89 dated 16-1-1989, the appellant has come up in appeal before this Tribunal.
2. The facts of the case in brief are that on 7-8-1988 on information, Customs officers, Raxaul, signalled one tractor with trailer to stop near Gamharia Canal on Raxaul Motihari Road. The driver of the tractor stopped the tractor at a distance and he along with one occupant of the tractor jumped down from the tractor and started running in order to evade interception. After a hot chase the occupant of the tractor could be intercepted. The driver managed to escape. On examination of the tractor and trailer in presence of two independent witnesses and the said occupant recognising himself as Amin Miyan, 8 Kgs. of Nepali Charas/Hashish secreted beneath Tarpaulin in a gunny bag along with one bicycle were recovered. Recovered goods along with tractor and trailer were seized by the Customs officer, Raxaul under Section 110 of the Customs Act after observing necessary formalities because Amin Miyan could not produce any document in support of legal possession/importation/transportation of the said hashish/charas into India. After interrogation, Amin Miyan was arrested and forwarded to judicial custody. In follow-up action it was learnt that the said tractor bearing registration No. BRE 9597 with trolly bearing No. BRE 403 is owned by Shri Laxmi Sahani, the present appellant, and the driver’s name is Shri Sant Sahani. In their interrogatory statement as well as in their defence reply they pleaded their ignorance of the importation and transportation of said Hashish/Charas and prayed for personal hearing.
3. The case of the appellant is that he is a poor farmer and he was not in the knowledge of this importation. It was also contended that the vehicle in question is not liable for confiscation.
4. We have heard both the sides.
5. The learned Advocate appearing for the appellant contended that the learned Collector was not justified in confiscating the tractor, trailer and tarpaulins of the petitioner without any material on record to substantiate that the said tractor, trailer and tarpaulins were used as transports in the smuggling of the goods. It was also contended by him that there was no material to show that the appellant being the owner of the vehicle had connived with the accused in getting these contraband goods carried in the said vehicle. It was also contended that the petitioner is innocent of the offence and his tractor and trolly and tarpaulins could not have been confiscated. It was his contention that the tractor and trailer are used by the appellant for carrying the agricultural produce for sale at different markets including Raxaul market. It was also contended that on the day of the incident he had sent garlic and chilli to the market in that trolley and trailer. It was also contended that one Amin Miyan stopped the trolley while his driver was driving it and the driver allowed him a free and temporary lift on humanitarian grounds and on the way the Customs officers stopped the same and arrested the said person and the contraband goods were removed from the cycle of that person. It was also his contention that since no rules were found under section 115(2) of the Customs Act with respect to the precautions that are to be taken by the owner, the confiscation of the trolley and the trailer in question is not justifiable. In this connection, he relied on a decision of the CEGAT reported in 1984 (15) ELT 375. Garware Shipping Corporation Ltd. and Anr. v. Rishi Vishwamitra and Anr..
6. The learned JDR, on the other hand, contended that the driver of the vehicle is an agent of the owner. It was also contended by him that when the Customs officers stopped the vehicle, the driver immediately ran away from the vehicle which shows his complicity in the offence. It was also contended that for about two months the driver was absconding and if he was innocent he would have really told the facts, to the Customs officers without running away and this conduct of the driver goes to prove that he was also in the knowledge of the contraband goods being carried in the trailer and trolley. It was, therefore, contended that the owner of the trolley is liable in view of Section 115(2) of the Customs Act. In this connection, he drew our attention to a decision of the CEGAT reported in 1988 ECR page-610.
7. We have heard both the sides in detail. In order to appreciate the respective contentions of the parties, it is necessary for us to reproduce Section 115(2) of the Customs Act, 1962, which reads as follows :-
“115. Confiscation of conveyances –
(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation unless the owner of the conveyance or animal 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 or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules:
Provided that where 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.”
8. From a perusal of Section 115 (2) it is seen that if any conveyance is used for smuggled goods being transported the same shall be 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. Therefore, it is not sufficient to prove that the owner himself was not in the knowledge of the contraband goods being taken in the vehicle. He should also prove that it was without the knowledge of his agent that the same was taken in the trailer and the trolley. The driver of the appellant is an agent of the appellant. Therefore, it was necessary for him to prove that the agent, that is the driver, was also not in the knowledge of the contraband goods being carried in the trolley and the trailer. It should also be shown that each of them, i.e. the appellant or his agent had taken all such precautions against such use as are specified in the rules. It is no doubt true that in the decision reported in 1984 (15) E.L.T. Page-375, it was held that in the absence of framing any such rules this condition is not valid. But that decision was not followed in the decisions of the CEGAT later. In a decision reported in Shri Muk Tin FUI v. Collector-1986 (25) E.L.T. Page 982 (Tribunal), the Western Regional Bench of the CEGAT had held that under Section 115(2) of the Customs Act, no mens rea is required. In the same decision reported in 1986 (25) E.L.T. Page 982 the Tribunal referred to the decision of the Bombay High Court in the case of Garware Shipping Corporation reported in 1984 (15) E.L.T. Page 375 and observed that the said judgment was super-ceded by the decision of a Division Bench of the Bombay High Court in the case of Mogul Lines Ltd. and Ors. v. A.K. Dutta and Anr in Appeal No. 57/1979 dated 5-10-1982. It was in view of that Division Bench decision, the Western Regional Bench in 1986 (25) E.L.T. 962 held that the absence of the rules being framed under Section 115 (2) is not material and on that ground the confiscation cannot be held to be illegal. This decision was also followed by the ERB of the Tribunal in a decision reported in 1988 (18) ECR 610, Regent Travels Company v. Collector of Customs.
9. In view of the above mentioned reasonings, we are of the opinion that merely because no rules are framed under Section 115(2) of the Customs Act, it cannot be said that the confiscation of the trailer and the trolley are not legal.
10. Coming to the next point, we observe that under Section 115(2) of the Customs Act, it was for the appellant to show that either himself or his agent has taken all such precautions against such use of this vehicle for using it as a carrier of the contraband goods. In the facts and circumstances of this case it is now seen that the driver of the vehicle immediately ran away from the spot when the Customs officers intercepted the vehicle and he was absconding for a period of two months. The conduct on the part of this driver in running away from the spot establishes that he had not taken the precautions mentioned in Section 115(2) of the Customs Act. On the contrary, it shows that he was in the knowledge of the nature of the goods which was carried by the persons viz. Amin Miyan who stopped the truck and got into it. In this circumstances, the driver the agent of the appellant has not taken the precautions as an ordinary and prudent man should have taken in the circumstances of this case. That being so, under Section 115(2) of the Customs Act, the appellant also becomes liable and mens rea is not an essential ingredient to fix up the liability on the appellant. It has been contended by the learned Advocate for the appellant that even in the order passed by the learned adjudicating authority it was mentioned that the act of carrying contraband goods was without the knowledge of the owner of the vehicle and the mischief was done by the driver and his accomplice Amin Miyan. It is no doubt true that the learned adjudicating authority has held in the order that this appellant had no knowledge of the same but as already held by us, mens rea is not an essential part. For the actions of the agent, i.e. the driver this appellant is vicariously liable in view of the plain meaning of Section 115(2) of the Customs Act. That factor was taken into consideration by the learned adjudicating authority and no fine was imposed on this appellant. But that fact itself will not absolve the vehicle, i.e. the trailer and the tractor being confiscated under the Act.
11. The next contention put forth by the learned Advocate was that the tractor should not have been confiscated absolutely. We find force in this argument put forth by the learned Advocate. Under Section 115(2) in the proviso it is stated that if any such conveyance is used for the carriage of goods or passengers for hire, the owner of such conveyance shall be given an option to pay in lieu of the confiscation 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. It is now the case of the appellant that this trailer and the trolley and the tarpaulins are used for carrying vegetables and goods to the Raxaul market. Therefore, this conveyance is used for the purpose of carrying goods like vegetables etc. It is also his contention that he had incurred debts in purchasing these trailer and trolley and that he is an old man. In such circumstances, the learned adjudicating authority should have given an option to the appellant to redeem the same on payment of a redemption fine not exceeding the amount of the smuggled goods, the value of which, as seen from the records, is Rs. 1,60,250/-.
12. In our view, taking into consideration the totality of the circumstances that the appellant is a poor man engaged in agricultural activities and also in supplying of vegetables to the market through this trailer and trolley and also taking note that he is an aged man and has incurred debts for the purchase of the trailer and trolley in question, and this being the source of his livelihood, a sum of Rs. 25.000/- would meet the ends of justice as redemption fine. Accordingly, we uphold the order of confiscation of the trailer and the trolley and the tarpaulins in question. But we give the appellant an option to redeem the same on payment of a redemption fine of Rs. 25,000/- (Rupees twenty-five thousand) only within three months from the date of receipt of this order, on such extended period which may be granted by this Tribunal on application. The appeal is thus partly allowed in the above terms.