Baksha Ram Vs. Collector of Customs

1. Facts, relevant for the purpose of deciding this appeal, are that Police intercepted one Jonga Jeep bearing No. RSN 8385. The occupants managed to escape and on search the jeep was found loaded with bales and gunny bags containing some contraband goods. On inquiry, the jeep was found to be belonging to the appellant. His statement was recorded under provisions of Section 108 of the Customs Act, 1962 wherein he said that he has sold this jeep to one Shri Jeevan Lal and he produced a photostat copy of the Affidavit in support of his contention. He also gave address where Shri Jeevan Lal was working. Summons were sent at the said address, but they were returned with the remarks that 'nobody with such name was working there'. So, as stated in the impugned order para 2, contention of Shri Baksha Ram that he had sold the vehicle, could not be verified or established. Show cause notices were issued to the appellant and also to Shri Jeevan Lal and on adjudication, goods and the vehicle were ordered to be confiscated absolutely and personal penalty of Rs. 1,000/- was imposed on the appellant. Charges against Shri Jeevan Lal were dropped. Aggrieved by this order, the appellant has preferred this appeal.

2. The appellant did not remain present, but sent written submissions accompanied by the original Affidavit.

3. We heard Sh. R.M. Ramchandani, Id. S.D.R. for the respondent. Shri Ramchandani reiterated the arguments advanced in the impugned order.

4. In para 8 of the impugned order, the Additional Collector has referred to defence reply of Shri Jeevan Lal. Surprisingly, in para 2 of the impugned order, the Additional Collector has observed that as said, Shri Jeevan Lal could not be traced at the address given by appellant, the contention of the appellant that he has sold the vehicle, in question, to said Shri Jeevan Lal, could not be verified.

Admittedly, Shri Jeevan Lal did file his defence reply and it was incumbent upon the adjudicating authority to enquire from him about the said contention of the appellant. Much more so, when the appellant had produced photostat copy of the affidavit (Halfnama) wherein said Shri Jeevan Lal is declared to have purchased the vehicle for Rs. 12,000/- on 4-3-1981 and that he had already obtained possession of the vehicle and had agreed that from that date onwards, he, i.e. Shri Jeevan Lal would be liable to pay all the taxes, etc. and would be liable for all the consequences that might arise out of any accident, etc. The Additional Collector does not appear to have confronted said Shri Jeevan Lal with the said Affidavit. He has stated that the appellant had not produced the original Affidavit, but then the Collector could have called upon the appellant to produce it. The Additional Collector verified the signature of the said Shri Jeevan Lal on the photostat copy of the Sale Deed (in the form of Affidavit) and he came to the conclusion that the signature of Shri Jeevan Lal on the said Sale Deed do not tally with the signature of his reply to the show cause notice.

Apart from that the Additional Collector observed that the registration of the seized vehicle, at the time of seizure, was still in the name of the appellant. Position of law is very clear that owner could be liable only if it could be shown that either he had used the vehicle for transporting contraband goods or that he had allowed it to be so used or that he connived at such use of the vehicle. There is absolutely no evidence to this effect on record. So, assuming for the sake of arguments that the vehicle belonged to the appellant and was not transferred to Shri Jeevan Lal, as contended by the appellant, then also that fact, by itself, would not justify implicating the appellant with the act of transporting the contraband goods and would not justify imposition of any penalty on the appellant. In the circumstances, the appeal is required to be allowed. So, we pass the following final order : The appeal is allowed and the impugned order is modified to the extent that penalty imposed upon the appellant is set aside with consequential relief to the appellant.