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TMI Blog1972 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit No. 818 of 1969 in the Original Side of this Court for a declaration that he was owner of the car and for recovery of possession, alternatively for a decree of Rupees 15,000/- being the market value of the car against respondents Nos. 5 and 6. In this suit a Receiver was appointed but upon the application of the petitioner a further order was made on May 15, 1970 which inter alia authorised the Receiver to take possession of the car only if the Customs should release it. It is alleged that although the Customs Authorities were not parties in this suit, they were duly intimated by the petitioner and they also took inspection through their Solicitors of records. Thus in spite of having knowledge that the petitioner was the owner of the car the authorities without giving any notice to the petitioner completed the adjudication proceeding and passed an order on August 18, 1970, imposing a fine of Rs. 4,000/- and also confiscated the car with an option to the owner to redeem it on payment of fine of Rs. 4,000/- within a month from the date of the order. That is how, in short, the petitioner felt aggrieved and obtained the present Rule. 4. Quite a large number of grounds were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 goods which are sought to be smuggled or the smuggled goods, as the case may be. 6. The only other section which is material for the present purpose is Section 124 which is in these terms : Issue of show cause notice before confiscation of goods, etc. - No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the car, of being served with a notice to show cause against the proposed order of confiscation or imposition of penalty as contemplated under Section 124 of the Act. I think the question of waiver does not strictly speaking arise in this case. The word waiver in its legal sense often creates difficulties. In one of the earliest decisions of this Court reported in Dhanukdhari Singh v. Nathima Sahu, (1907) 6 Cal. LJ 62, it was explained to mean intentional relinquishment of known right and it may be proved by express promise or declaration not to enforce such right as may be inferred from the conduct of parties. In later years the Judicial Committee in 62 Ind App 100 = (AIR 1935 PC 79), Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish, in clarifying the distinction between waiver and estoppel has laid down that waiver is contractual and may constitute the cause of action; it is an agreement to release or not to assert a right whereas estoppel is not a cause of action but it is a rule of evidence which comes into operation where (a) a statement of acceptance of a fact is made by the defendant or an authorised agent to the plaintiff or some one in his behalf (b) with the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be valid, nor a thing declared so to be invalid can be valid by mere consent of the parties for failure to plead or argue the point. See Surajmull Nagarmull v. Triton Insurance Co. Ltd., 29 Cal WN 893 = (AIR 1925 PC 83). This then being the position in law it is difficult to see how the Customs Authorities could escape the performance of their obligation coupled with duty under the Statute and pass an order of penalty and confiscation (which in absence of compliance with such duty would be invalid), just because the petitioner long before the impugned orders were passed came to know of the adjudication proceedings but did not participate or prefer any objection in such proceedings. In my view having regard to the mandatory provision of Section 124 even if the petitioner was aware of such adjudication proceeding the duty to serve notice upon the petitioner and to adjudicate the question of confiscation and imposition of penalty in the manner indicated under Sec. 124 of the Act could not be shaken off. A mere plea of constructive notice is not a sufficient answer either to such non-compliance with statutory duty. 10. It may be that different consideration might possibly arise i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that when any person is expressly or impliedly authorised by owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall without prejudice to the lability of the owner, importer or exporter be deemed to be the owner, importer or exporter of such goods for such purpose. I do not think, this provision has any application to the facts of the present case. Firstly, there is nothing on record to show that the petitioner expressly authorised the respondent No. 5 to be his agent in respect of the car. Secondly, from the hire purchase agreement between the respondent No. 5 and the petitioner it cannot be said that there was any implied authorisation by the owner of the respondent No. 5 to be his agent in respect of the car for the purposes of the Customs Act. Under a hire purchase agreement it may be that a hirer is put into possession of the car and acquires certain rights and obligations relating to possession and use of the car but those rights and obligations cannot relegate the hirer into position of an agent of the owner for the purpose of the Customs Act unless such a status as that of an agent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain release of the car up to at least November, 1970 without being told by the Customs Authorities at any time that the car stood already confiscated in lieu of payment of penalty of Rs. 4,000/-. It, thus, appears that although the petitioner came to this Court almost after about one and a half years it cannot be said that there is no sufficient cause for the delay. I cannot say on the facts of this case that there was negligence or want of diligence on the part of the petitioner in moving the writ petition in this Court. The last point raised by Mr. Pyne therefore, also fails. 13. Before I part with this case I must mention here that the learned Advocate for the petitioner informed me that the suit instituted by the petitioner in his case ended in a decree in favour of the petitioner. That again is a point which goes against the respondent. 14. For the reasons however, already given, the result is, the petition succeeds. The impugned adjudication proceeding and the orders are quashed. I make no order as to costs. 15. The Rule is, accordingly, made absolute. I, however, make it clear that nothing in my judgment will prevent the respondents Nos. 1-4 to start proceedings afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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