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TMI Blog1994 (12) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... along with its two occupants were arrested. 3.According to the case of the petitioner, the driver namely, Chandeshwar Mahto, had gone to Muzaffarpur for some repair works of the vehicle and registration certificate and other relevant papers were in the jeep when the same was seized by the respondents. The petitioner, according to his case, did not receive any notice from the respondents for a pretty long time informing him on the grounds on which the vehicle was seized and was proposed to be confiscated under the provisions of the Act. The contention of the learned counsel for the petitioner was that since no notice, as contemplated by the provision of Section 124 of the Act, was issued and served on the petitioner who is the owner of the jeep within six months the jeep has to be released to the petitioner in view of the provision of sub-section (2) of Section 110 of the Act, and that though the petitioner also sent an application (a copy of which is Annexure-2) on 26-3-1994 to respondent No. 1 [the Collector of the Customs] praying for release of the vehicle, but there was no response, despite a reminder [a copy of which is Annexure-2 (1) of the writ application]. 4.A counter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion they were seized". Since the petitioner is not the person from whose possession the vehicle was seized he, according to her contention, cannot have legal right to take back the vehicle. Relying on the decisions reported in 1982 Excise Law Times 72 (Hemant Bahadur Theppa v. Union of India) and 1988 Excise Law Times 448 (Lal Gianmal Ji v. Union of India and Others), she contended that the confiscation proceeding can continue under Section 124 of the Act and that provision is independent of the provision of Section 110 of the Act. So even if no notice as contemplated by Section 124 of the Act is issued within six months, confiscation proceeding may still continue and it cannot legally be questioned. 7.Besides the aforesaid cases, decisions reported in 1983 (13) E.L.T. 1477 (SC) = AIR 1972 SC 689 (Asst. Collector of Customs v. Charan Das Malhotra) and the decision of the Kerala High Court in O.P. No. 2108 of 1971 were also cited, and the learned counsel for the petitioner relied upon the decision of the Kerala High Court and said that notice to the owner is also necessary. 8.An important point which arises for consideration in this case is whether in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Clause (a) and the representation referred to in Clause (b) may, at the request of the person concerned be oral." 11.Now it will appear from the provisions of Section 124 that no confiscation could be made of any goods which includes vehicle, unless the owner of the goods or such person is given notice in terms of sub-sections (a), (b) and (c). It will further appear that it contemplates notice either to "the owner of the goods" or "to such person". As the wordings of the section stand, notice may be given to the owner of the goods or such person which includes person from whose possession goods (which of course includes vehicle) has been seized. The conjunction used in the section is `or' and not `and', and ordinarily it will imply that notice on any one of the two the owner or the concerned person, would satisfy the legal condition for proceeding to pass appropriate order with regard to confiscation. 12.But a crucial question, which falls for consideration, is whether the owner even [if] his identity has been known and whose property is sought to be confiscated, can be deprived of opportunity to say whatever he has to say in the matter. Of course, if there is no way to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been controverted in the counter-affidavit, and if the respondents intended to confiscate the vehicle, it was obligatory on their part to issue notice to the owner also, so that he might show that the conveyance was being used at the time when it was seized, without his knowledge or connivance, for the purpose of smuggling foreign goods or he could exercise his option in terms of proviso to Section 115(2) of the Act. 15.It is an admitted fact that the notice was not served on the petitioner, the owner of the vehicle it, however, appears from the stand taken by the respondents in the counter-affidavit that the notice had been served on the driver, Chandradeo Mahto. A copy of the notice (Annexure-A) had been attached with the supplementary affidavit and a perusal of content shows that it is in accordance with the terms of Section 124 of the Act. To be sure in the counter-affidavit it is not specifically mentioned as to when (i.e. on what date) the notice was served on the driver. Because of this omission, learned counsel for the petitioner contended that since specific mention of the time or date of service of notice has not been mentioned in the counter-affidavit, nor has serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond six months in terms of the proviso to sub-section (2) of Section 110 of the Act. Extension of the period beyond six months under that proviso can be done "only on sufficient cause" being shown to the Collector of Customs, and it was held that extension could be given only after issue of notice to the concerned parties. I do not think that ratio of the aforementioned three cases has any application to the facts of the instant case. 18.In the light of observations made and reasons given above I am of the opinion that the petitioner cannot get relief of return of the jeep in question which has been sought for by him in this writ application. Since the jeep seems to have been seized quite a long time back, on 9-9-1993, and since it was contended during the course of hearing that condition of the jeep which is lying uncared for has been deteriorating, the respondents are directed to conclude the confiscation proceeding as early as possible, and in any case within four months from the date of receipt/production of a copy of this order and while passing order relating to confiscation they may consider various representations which the petitioner seems to have filed although belat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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