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TMI Blog1995 (6) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... anaged to escape from the spot and the other two passengers, namely, S/Shri Mohd. Zamal and Mohd. Islam, were arrested by the Police. Truck was found to carry goods of foreign origin like cloves, cameras and crockery, etc., totally valued at Rs. 6,52,000/-. Pursuant to Show Cause Notice issued to the owner of the truck Sh. Satwant Singh and the two passengers found travelling in the truck, the proceedings culminated in confiscation of truck and imposition of penalty of Rs. 25,000/- on the Appellant, Sh. Satwant Singh, the owner of the truck, and penalty of Rs. 5,000/- among others on Mohd. Islam, the second appellant. The truck was allowed to be redeemed on payment of redemption fine of Rs. 1,00,000/- 3. Arguing for the appellants, the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave made necessary enquiries in regard to driver before entrusting his truck to him. The very fact that the driver who at the material time was in charge of vehicle and, therefore, was the agent of the owner, ran away would prove his clear knowledge about the illicit nature of the goods. 6. I have considered the submissions made by both sides. From the Order of the Collector it is seen that the driver of the truck was employed by the appellant s father only a week before the seizure. The statement reveals that the driver when he was deputed to perform the functions of a driver, in absence of regular driver, was given a specific assignment; he did not turn up again. Subsequent investigations reveal that even the address of the driver was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner had the requisite knowledge of goods. On the other hand, as held by Tribunal in case of Laxmi Sahni v. Addl. Collector (Customs) (supra) that mens rea is not an essential part in this matter and that for the action of the agent, i.e., the driver, the appellant is vicariously liable in view of the plain meaning of the Section 115(2) of the Customs Act. The fact that owner had no knowledge and was not himself in the truck when it was intercepted was, while upholding the order of confiscation, taken only as an extenuating factor in converting absolute confiscation to redemption fine of Rs. 25000/-. 7. In regard to penalty under Section 112 of the Customs Act, however, the case of the appellant, the owner, stands on a differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while upholding confiscation set aside the orders related to penalty under Section 112 of the Customs Act, on the ground that there was no evidence that the appellant was concerned with the smuggling of ball bearings in question from Nepal to India. In case of Sh. Raghbir Singh Baba v. Collector (Customs), New Delhi, 1984 ECR 2326 (T),the confiscation of the car was upheld since there was clear evidence that driver had engaged this car in transporting contraband goods. Keeping in view that the owner was held to have no relation with the goods, the car was allowed to be redeemed on payment of fine. 7.2 In regard to penalty on the first appellant, Shri Satwant Singh, who is the owner of the truck, Collector only refers to negligence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory provision in that behalf. The Hon ble Court further held that where it was not held as to which of the Clauses of Section 112 of the Customs Act, 1962, was relevant and would be attracted, it could be said that there was a failure to apply one s mind. The Court relied on the Judgment of the Hon ble Apex Court in case of Gian Chand v. State of Punjab, AIR 1962 SC 496, where in the context of the Section 167 of the Sea Customs Act, 1878, the Hon ble Court held that in absence of any valid statutory provision in that behalf the onus of establishing the essential ingredients under the provision necessary to bring home the offence to an accused is on the prosecution. Obviously, the stress was on the essential ingredients which go to make up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sh. Mohd. Islam, show cause notice as well as Orders of Collector only indicate that he along with the other persons was travelling in the truck at the material time. A discrepancy in the two statements regarding place from where he was coming has been made the basis of the Collector s findings holding him guilty. Investigations made have not disclosed any connection of the appellant, who is said to have been a hawker only, with the goods. This is not the evidence such can establish a charge against the appellant. The appellant had denied any connection with the goods right from the beginning. The only person who could have thrown light on this matter was the driver who, however, escaped. There is no evidence, no even such circumstantial e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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