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TMI Blog1989 (10) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 superceded by the decision of a Division Bench of the Bombay High Court in the case of Mogul Lines Ltd. and others v. A.K. Dutta and another 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 abovem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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