Tata Engineering and Locomotive Co. Ltd. Vs. the Union of India (Uoi) - Court Judgment

Nain, J.

1. Petitioner No. 1 is Tata Engineering and Locomotive Co. Ltd. It manufactures and deals in motor trucks. It also gives motor trucks on hire-purchase system. Petitioner No. 2 is a director of petitioner No. 1, and petitioner No. 3 is its shareholder. Both the petitioners Nos. 2 and 3 are citizens of India, Respondent No. 1 is the Union of India. Respondents Nos. 2, 3 and 4 are Central Excise Authorities in Bombay. (Respondents Nos. 1 to 4 are hereinafter referred to as 'the respondents'). Respondent No. 5 is the hirer of motor truck No. MRS 9548 from petitioner No. 1 under a hire-purchase agreement dated September 7, 1968 which is exh. 'A'. The amount originally payable under the hire-purchase agreement was Rs. 55,236.95 P. which was payable by certain instalments mentioned in the agreement. These were to be payments by way of hire. Until full payment was made in respect of the said truck, the truck was to remain the absolute property of petitioner No. 1. The due performance of the agreement, including payment of all amounts due thereunder, was guaranteed by Fakhruddin Abdulhussein, who has executed the agreement, exh. 'A', as a guarantor. In case of default, petitioner No. 1 had a right to terminate the contract of hire and recover possession of the truck. It is not in dispute that on January 30, 1969 respondent No. 5 was in arrears of hire charges.

2. On January 30, 1969, the police searched the office of Kapadia Transport Company at 37, Bhandari Street, Bombay, and recovered 61 packages of Nylon Flat Crape made in Japan. Inquiry revealed that these 61 packages were unloaded from truck No. MRS. 9548 which had arrived at 8.30 a.m. The truck was found parked outside the office of Kapadia Transport Co. and was found partly loaded with Mangalore roof-tiles. Neither the driver nor the cleaner of the truck was present. The police seized the truck, the textile goods and the roof-tiles. The police handed over the goods to the Excise Department who took the view that the textile goods were smuggled and the roof-tiles were used for concealing them. Notices were issued, inter (Ma, to petitioner No. 1 and respondent No. 5. They were heard. The textile goods were confiscated by an order dated April 14, 1971 and the truck was confiscated by an order dated March 8, 1972 under Section 115 of the Customs Act, 1962 (hereinafter referred to as 'the Customs Act'). The order gives an option to petitioner No. 1 to redeem the truck on payment of a fine of Rs. 15,000 in lieu of its confiscation. This order is exh. 'I' to the petition. The said order states that from the circumstances and evidence therein set out it was conclusively established that the 61 packages of textiles were unloaded from truck No. MRS. 9548 and that the driver and the cleaner had deliberately absconded as they had knowledge about the contraband nature of the goods carried in the truck. The authorities concluded that the allegation that the truck was used for the carriage of the goods under seizure was proved and the truck was liable to confiscation. The authorities further found that petitioner No. 1 had failed to prove that the truck had been used for transporting smuggled goods without the. knowledge or connivance of the person in charge of the truck and that it had also failed to prove that the person in charge of the truck had taken necessary precautions against the use of the truck for transporting contraband goods. Petitioner No. 1 contended before the authorities that it had no knowledge about the use of the truck for transporting smuggled goods and that the driver of the truck was not in its employ or under its control. The authorities did not consider this contention sufficient for releasing the truck from confiscation.

3. The petitioners have filed the present petition for quashing the decision dated April 16, 1971 and the order of confiscation of the truck dated March 8, 1972 and for an order directing the authorities to restore the truck to petitioner No. 1 or to respondent No. 5. The facts leading to this petition are not in dispute.

4. At the outset, Mr. Sorabjee for the petitioners stated that, having regard to the scope of a petition under Article 226 of the Constitution of India, he did not press grounds (a) and (e) in para. 17 of the petition.

5. At the outset, Mr. C.J. Shah on behalf of the respondents took a preliminary objection to the maintainability of the petition. He contended that petitioner No. 1 was a company incorporated under the Companies Act, 1956 and was not a citizen of India. Its contention is that the impugned order of confiscation of the truck violates the fundamental right of a citizen under Article 19(1) of the Constitution. This right was not available to petitioner No. 1 who was a company and therefore was not a citizen of India. He relied upon the judgments of the Supreme Court in the cases of 8. T. Corpn. of India v. Commrcl. Tax Officer A.I.R. [1968] S.C. 1811 and Tata B. & L, Co. Ltd. v. State of Bihar : [1964]6SCR885 wherein the Supreme Court had expressed the view that a Corporation was not a citizen within the meaning of Article 19 and, therefore, could not invoke that article. In the Bank Nationalisation case (B.C. Cooper v. Union of India : [1970]3SCR530 the Supreme Court held the statute to be void for infringing the rights of a citizen under Article 19(7)(f) and (g) of the Constitution. The petitioner in that case was a shareholder and director of the company which was acquired under the statute. The Court took the view that a shareholder was entitled to the protection of Article 19 and that his individual right was not lost by reason of the fact that he was a shareholder of the company. The Bank Nationalisation case has, therefore, established the view that the fundamental rights of shareholders and citizens are not lost when they associate to form a company. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected. Subsequently, in the case of B. 0. & Go. v. Union of India : [1973]2SCR757 the Supreme Court referred to the earlier cases on the point and held that the locus standi of the shareholders-petitioners in that case was beyond challenge after the ruling of the Court in the Bank Nationalisation case and that the presence of the company was not a bar to the grant of relief. In the present case, a shareholder and a director of petitioner No. 1 company are parties. The order of confiscation puts petitioner No. 1 company to financial loss which affects every shareholder. Petitioner No. 3 being a citizen of India would not in my opinion be disentitled to maintain the present petition.

6. Before I deal with the main contentions of the petitioners, a reference to the relevant provisions of law will be necessary. Section 115(2) of the Customs Act reads as tinder:

115(2) Any conveyance or animal used as n 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 :....

Section 2(9) provides that 'conveyance' includes a 'vehicle'. Section 2(31)(d) provides that 'person-in-charge' means in relation to any other conveyance (other than a vessel Aircraft or railway train), the driver or other person-in-charge of the vehicle.

7. It will be seen that Section 115(2) provides that any conveyance 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 proves the following things.-

(1) That the conveyance was used in the carriage of smuggled goods without his knowledge or connivance.

(2) That he had taken all such precautions against such use as are for the time being specified in the rules

(3) That the conveyance was so used without the knowledge or connivance of the person incharge of the conveyance, viz. the driver or other person in charge of it, and

(4) That the person in charge of the conveyance, viz, the driver or other person in charge of it, had taken all such precautions against such use as are for the time being specified in the rules.

Points Nos. 3 and 4 have also to be proved by the owner in respect of an agent, if any, but as there is no agent in this matter, I have omitted reference to the agent. In this case there is no dispute about the fact that petitioner No. 1 is the owner of the truck. There is no allegation that the truck was used for carriage of smuggled goods with the knowledge or connivance of petitioner No. 1. The truck has not been confiscated on the ground that it was so used with the knowledge or connivance of petitioner No. 1. It was contended on behalf of the respondents that petitioner No. 1 had not proved that it had taken all necessary precautions against the use of the truck for transport of smuggled goods. I am afraid, there is not the least substance in this contention, of the respondents. The precautions to be taken by the owner are to be specified in the rules made tinder the Customs Act. The petitioners allege that no such rules have been framed specifying the precautions. The respondents have not been able to point out any such rules. There is, therefore, no question of petitioner No. 1 taking any precautions against the misuse of the truck as there are no such precautions specified in any rules made under the Customs Act.

8. On a plain reading of Section 115(2), petitioner No. 1 must further prove that the truck was used for transport of smuggled goods without the knowledge or connivance of the driver and further that the driver had taken all such precautions against such use as are for the time being specified in the rules. In my opinion, the petitioners have not discharged the burden of proving that the truck was used for transport of smuggled goods without the knowledge or connivance of the driver. The authorities have found as a fact that the truck was used for carriage of smuggled goods by the driver himself with full knowledge that he was carrying smuggled goods. The authorities have inferred this from evidence and also the fact that the driver is absconding. Failure to prove absence of knowledge or connivance of the driver would on the plain reading of the provision of law make the truck liable to confiscation. The petitioners have further contended that as there are no precautions specified in any rules made under the Customs Act, they could not prove that the driver had taken, all such precautions against the misuse of the truck. It is true that there are no rules specifying the precautions with regard to the person in charge of the conveyance, but on a plain reading of Section 115(2) such precautions, if specified in the rules, would pertain to the misuse of the truck by persons other than the driver himself. In this case it is found as a fact that the truck was used by the driver himself for carriage of smuggled goods. The absence of rules specifying precautions to be taken on his part, therefore, makes no difference. In view of the fact, however, that petitioner No. 1 has failed to discharge the onus with regard to the knowledge or connivance of the driver of the truck, in my opinion the truck would be liable to confiscation for that reason alone.

9. I have taken the above view on the elementary rule of construction that the words and phrases of Section 115(2) are used in their ordinary meaning. There is no ambiguity about the words and, therefore, the literal construction in this ease is a safe rule of construction. The language of Section 115(2) is plain and admits of but one meaning. The task of interpretation can hardly be said to arise. 'Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced how-over harsh the result may be unless a fundamental right is contravened.

10. Mr. Sorabjee on behalf of the petitioners, however, contended that Section 115(2) of the Customs Act is a penal provision and ought to be construed strictly. It ought not to be construed in a manner which leads to injustice and undue harshness and it should be read down to mean not any person who physically drives the car but a driver who is legitimately in charge of the vehicle and over whom the owner of the vehicle sought to be confiscated can reasonably be expected to exercise control or supervision. Mr. Sorabjee contended that the liability of petitioner No. 1 to have its vehicle confiscated is a vicarious liability, the primary liability being1 of the driver himself, and this liability cannot arise if the driver was not legitimately in charge of the vehicle or the driver was not an employee of petitioner No. 1 and petitioner No. 1 could not reasonably be expected to exercise control or supervision over the driver.

11. This is not a case where the absconding driver was not legitimately in charge of the vehicle. It is not alleged that he was a thief who had stolen the vehicle and used it for transport of smuggled goods. It stands to reason that misuse by a person who is not legitimately in charge of the vehicle may not make the owner liable to have his vehicle confiscated. The person in charge would, in my opinion, refer to a person legitimately in charge. In this case, petitioner No. 1 had given the vehicle on hire to respondent No. 5. Respondent No. 5 had given it in charge of the driver. The driver was, therefore, a person legitimately in charge of the vehicle. It is true that he was not an employee of petitioner No. 1 and petitioner No. 1 had no control or right of supervision over the driver, but when petitioner No. 1 gave the vehicle on hire-purchase to respondent No. 5, it was fully in its contemplation that the vehicle may be driven by a person other than the hirer. This was not an unexpected event. If by the clear and unequivocal language of Section 115(2) the owner is made liable to have his vehicle confiscated on account of the misuse of it by a person who was legitimately in charge of the vehicle but over whom the owner had no control or right of supervision, I am afraid, the legislation must be enforced.

12. Mr. Sorabjee argued that such confiscation would put an end to the business of hire-purchase and that it would put petitioner No. 1 and other persons engaged in the business of giving vehicles on hire-purchase to a loss. I am afraid, if this is the result of clear and unequivocal language of the section, this result cannot be avoided, I am, however, not impressed by the fact that petitioner No. 1 would suffer any financial loss or that such interpretation would put an end to its business. I find that (respondent No. 5 has given an indemnity in the agreement, exh. 'A', to petitioner No. 1 against the loss1 of the vehicle and the guarantor has guaranteed all payments due under the agreement and the due performance of the terms of the contract. There will be no loss to petitioner No. 1 if the vehicle is confiscated. However, I am not taking this aspect of the matter into consideration in interpreting the provision in the manner I am doing.

13. In the case of Amba Lai v. Union of India [1961] A.I.B.S.C. 264 the Supreme Court held that the relevant provisions of the Sea. Customs Act, 1878, which provided for an order of confiscation of goods, were penal in character. Mr. Sorabjee cited the case of Shanti Prasad v. Director of Enforcement : [1963]2SCR297 wherein the Supreme Court observed that proceedings under Section 23D of the Foreign Exchange Regulation Act, 1947 were quasi-criminal in character. I am, however, not prepared to apply this analogy to the Customs Act. In the same judgment, the Supreme Court observed that foreign exchange has features and problems peculiarly its own and it forms a class in itself. There is, however, no doubt that the provision with regard to the confiscation of vehicles is penal in character. Based on this, Mr. Sorabjee argued that normally and naturally the person who is liable for wrong is he who does it. The modern civil law recognises vicarious liability. For example, master is responsible for the acts of his servants done in the course of their employment. The liability of the master for the acts of the servant has its origin in the legal presumption, that all acts done by a servant in and about his master's business are done by his master's express or implied authority and are, therefore, in truth the acts of the master for which he may be justly held responsible. Mr. Sorabjee argued that as petitioner No. 1 did not employ the driver of the vehicle, which is the subject-matter of this petition, and had no control or right of supervision over him, it will be harsh to presume that the acts of the driver are done by the express or implied authority of petitioner No. 1 and are, therefore, in truth its acts for which it may be justly held responsible. I am afraid, Mr. Sorabjee's arguments would apply to the vicarious liability of the master for the acts of his servant in tort. We are dealing with a case where the liability of petitioner No. 1 to have its vehicle confiscated is created by a statute. This liability cannot be determined by reference to the principles of law of tort, but must be determined on the interpretation of the statute itself. Unless the statute violates one of the fundamental rights of a citizen, it must be given effect to if its language is clear and unequivocal.

14. Mr. Sorabjee cited a passage from the judgment in the case of Gardner v. Akeroyd [1952] 2 Q.B. 743 which reads as under (pp. 747-748) :.It may seem, on the face of it, hard that a man should be fined, and, indeed, made subject to imprisonment, for an offence -which he did not know that he was committing. But there is no doubt that the legislature has for certain purposes found that hard measure to be necessary in the public interest. The moral justification behind such laws is admirably expressed in a sentence by Dean Roscoe Pound in his book 'The Spirit of the Common Law, at p. 52: see The Law Quarterly Review, Vol. 64, p. 176. 'Such statutes', he says, 'are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or moials.' Thus a man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organizations up to the mark. Although, in one sense, the citizen is being punished for the sins of others, it can be said that, if he had been more alert to see that the law was observed, the sin might not have been committed. But if a man is punished because of an act done by another, whom he cannot reasonably be expected to influence or control, the law is engaged, not in punishing thoughtlessness or inefficiency, and thereby promoting the welfare of the community, but in pouncing on the most convenient victim.

In the above case, the Court was dealing with the doctrine of a master's criminal responsibility for his servant's breach of- an absolute duty or prohibition imposed by a statute. It was held that the doctrine does not extend to make the master vicariously liable for his servant's attempt to commit or his servant's act preparatory to the commission of an offence against the Defence Regulations. In this case, petitioner No. 1 is not charged with the criminal offence committed by another. What is sought to be done is to confiscate the vehicle used for transporting smuggled goods. The Legislature has found such measure to be necessary in the public interest. The principles of vicarious criminal liability cannot be imported into this case.

15. Apart from Section 115 of the Customs Act, there are or have been provisions in other Acts which provide for confiscation of vehicles or other modes of conveyance used for certain offences. Section 168 of the Sea Customs Act, 1878, provided that any vehicle or conveyance used in the removal of any goods liable to confiscation shall in like manner be liable to confiscation. Section 11 of the Opium Act, 1878, provides that conveyance used for transporting illicit opium shall be liable to confiscation. Sections 98(2) and 99 of the Bombay Prohibition Act, 1949, provide for confiscation of vehicles and conveyances which are used for the transport of intoxicants or materials out of which intoxicants are manufactured. Section 99 provides that no such vehicle or conveyance shall be confiscated if the owner satisfies the Court that he had exercised due care in preventing the commission of the offence. Section 28 of the Central Excise Act, 1944, also provides for confiscation of vehicles. But the language of all these enactments is different from that of Section 115(2) of the Customs Act, which undoubtedly casts a difficult burden on the owner of a vehicle to prove the innocence of or precautions taken by a person over whom he has no control. In my opinion, the doctrine of vicarious liability for criminal or tortious acts of others cannot be introduced in the interpretation of Section 115(2). The liability of a vehicle to confiscation must be determined on the plain words of the section itself, unless it violates a fundamental right. It is only from that view-point that the reasonableness of the measure must be examined.

16. Mr. Sorabjee cited the case of Abdul Bahmcm v. Emperor (1910) 12 Cr. L.J. 103 wherein a Division Bench of the Calcutta High Court held that no one can be liable because his servant made use of his private carriage as a depositary for his private stock of opium and, therefore, an order confiscating a boat in which some opium had been found should not have been made. Another judgment cited was in the case of Maruthamuthu [1967] I M.L.T. 142 decided by a single Judge of Madras High Court. Section 14 of the Madras Prohibition Act provided that an order of confiscation would not be made if the owner of the vehicle satisfies the Court that he had exercised due care in preventing the commission of the prohibition offence. The learned Judge took the view that it did not follow that in every case where the owner was not able to so prove, the car should be confiscated even though there is no evidence to prove that the owner had knowledge that a prohibition offence was going to be committed by using his car. Another case cited was the case of In re G.N. Chakrapany Chettiar. (1942) 44 Cr. L.J. 136. This was under Section 11 of the Opium Act and the learned Judge of the Madras High Court took the view that the conveyance ought not to be confiscated unless the owner knew or had reason to believe that his vehicle was likely to be used for the purpose of transporting contraband articles. I am afraid, these judgments have no application to the facts of this case, because under Section 115(2) of the Customs Act the owner had to prove the absence of knowledge and connivance of the driver and there is a finding of fact that the vehicle was used for transport of smuggled goods by the driver himself with full knowledge of what he was doing. I have to decide the case on the language of Section 115(2).

17. I shall deal with the case of State of M.P. v. Azad Bharat Finance Co. : 1967CriLJ285 in considerable detail, because Mr. Sorabjee placed great reliance on this case. This was a case under Section 11 of the Opium Act, as applicable in Madhya Pradesh, which provided that a vehicle used for transport of contraband opium 'shall be confiscated' instead of the words 'shall be liable to be confiscated.' The truck was taken on hire-purchase agreement from Azad Bharat Finance Co. by Harbhajan Singh and he was not present in or near the truck when the contraband opium was taken possession of by the Excise Officer. The company applied 'to the trial Magistrate for release of the truck. The driver was acquitted by the Magistrate, but he ordered that the truck be confiscated to the State. The Magistrate was of the opinion that Section 11 of the Madhya Bharat Act showed clearly that the truck in which the opium was carried had to be forfeited in all circumstances. In appeal, the Sessions Court upheld the said decision. Azad Bharat Finance Co. filed a revision application in the High Court. The High Court took the view that the word 'shall' was not mandatory and it meant 'may', and that it conferred discretion on the Court to confiscate the conveyance provided it belonged to the offender, but as it was not so and the owner of the truck had neither authorised the offender to transport opium nor was there any reason to believe that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because confiscation in such circumstances would be tantamount to punishing one, who had not committed any offence under the Opium Act. The State appealed to the Supreme Court. The Supreme Court held that the High Court was correct in reading Section 11 of the Madhya Bharat Act, as being permissive and not obligatory. The Supreme Court further held that the statute was penal and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. The Supreme Court also observed that if Section 11 had been mandatory, it 'may have to be struck down as imposing unreasonable restrictions under Article 19 of the Constitution.' The Supreme Court dismissed the appeal. Mr. Sorabjee placed great emphasis on the observation that a penal statute should be construed in such a way that a person who had not committed or abetted any offence should not be visited with a penalty. Be contended that in this case, petitioner No, 1 had not committed or abetted any offence and its vehicle should not be confiscated. In my opinion, this argument forgets that Section 115(2) of the Customs Act casts a burden on the owner of a vehicle to prove certain things and if he fails to prove them, the vehicle becomes liable to confiscation. The words of Section 115(2) of the Customs Act are different from the words of Section 11 of the Opium Act. Mr. Sorabjee also laid considerable stress on the observation of the Supreme Court that if Section 11 of the Opium Act in its application to Madhya Bharat had been mandatory, it may have to be struck down as imposing unreasonable restriction under Article 19 of the Constitution. In the case before the Supreme Court, it was found that Section 11 was not mandatory but was permissive and there was no occasion for it to strike down that section. Therefore, a casual observation that the provision may have had to be struck down will not help the petitioners.

18. Mr. Sorabjee contended that the provisions of Section 115(2) are mandatory and, therefore, must be struck down as imposing unreasonable restrictions under Article 19 of the Constitution. But I do not find any substance in this contention. Mr. Sorabjee invited my attention to a judgment of D.N. Sinha J. in the case of E. 0. Line Incorporated v. Jasjit Singh : AIR1959Cal237 . Section 167(12-A) of the Sea Customs Act, 1878 provided that 'Such vessel shall be liable to confiscation'. The learned Judge of the Calcutta High Court held that on true interpretation the confiscation was not obligatory but permissible. In the appeal from the above decision, the Supreme Court took a contrary view. (See Indo-China Steam Navigation Co, v. Jasjit Singh. : 1964CriLJ234 . This view of the Supreme Court would appear to be contrary to the view of the Supreme Court in the subsequent case in State of M.P. v. Azad. Bharat Finance Co., where even stronger language like 'shall be confiscated' was held to be permissive and not obligatory. In my opinion, the words used in Section 115(2) 'shall be liable to confiscation' are permissive and not mandatory or obligatory as contended by Mr. Sorabjee. There is, therefore, no question of striking down Section 115(2) as an unreasonable restriction under Article 19 of the Constitution. This is apart from the fact that the Supreme Court did not actually decide that such a mandatory provision was an unreasonable restriction under Article 19 of the Constitution and merely observed that if the provision had been obligatory it 'may have to be struck down', I am sure, if the occasion had arisen, there would have been more arguments before the point was decided.

19. Mr. Sorabjee wanted me to read down Section 115(2) of the Customs Act, so that the section read with Section 2(57) should mean not any person who physically drives the car but a driver who is legitimately in charge of the vehicle and over whom the owner can reasonably be expected to exercise control or supervision. There is ample authority for the proposition that in appropriate eases the Court could limit the application of a provision of law, as it did in the cases of B.M.D.C. v. Union of Indian : [1957]1SCR930 Kedar Nath v. State of Bihar : AIR1962SC955 and B.L. Arora v. State of Uttar Pradesh. A.I.R. [1984] S.C. 1230 It has been observed by the Supreme Court in 0. Narayanaswami v. G. Pownerselvam : [1973]1SCR172 that Courts should interpret in a broad and generous spirit the document which contains the fundamental law of the land or the basic principles of its Government. However, the rule of 'plain meaning' or 'literal' interpretation, which is 'the primary rule' could not be altogether abandoned in interpreting any document. The object of interpretation and of 'construction' is to discover the intention of the law-makers in every case. This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted to only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of interpretation as well as of construction processes which, from the point of view of principles applied, coalesce and converge towards the common purpose of both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. Where the meaning of a statute is clear and sensible, either with or without words, interpolation is improper since the preliminary source of the legislative intent is in the language of the statute. I see no occasion to limit the use of the language by the Legislature in the manner suggested by Mr. Sorabjee.

20. The last argument of Mr. Sorabjee is that Section 115(2) violates Article 19(1)(f) and (g) of the Constitution, because it imposes an unjust penalty on an innocent owner and the restriction is unreasonable and unduly harsh. He argues that judicial expositions of provisions of law which are in pari materia to Section 115(2) lay down that knowledge or connivance on the part of the owner of the vehicle is necessary in order to incur confiscation. In so far as Section 115(2) provides for knowledge or connivance of the owner, it gives effect to the legal position as judicially pronounced. If the law materially attributed the act of the owner's agent or servant to the owner, it would create vicarious liability within recognised limits, but if Section 115(2) is so construed that the owner becomes liable for the acts of the persons over whom he has no control or right of supervision, the position of the owner becomes worse than what it was before the pre-Constitution laws and the section far from mitigating the rigour casts an impossible burden on the owner. I have already observed that the provisions of other laws providing for confiscation of vehicles are differently worded. I do not think that the intention of the Legislature in enacting Section 115(2) was to mitigate the rigour cast on the owner. It does cast a heavy burden on the owner to prove the absence of knowledge and connivance and the precautions taken by a person over whom he has no control. But we have to see whether such harsh measure is justified. If it is not justified, it would undoubtedly be an unreasonable restriction under Article 19 of the Constitution. The Supreme Court observed in the case of Harakchand v. Union of India : [1970]1SCR479 that the principle which underlies the structure of the rights guaranteed under Article 19 of the Constitution is the principle of balancing of the need for individual liberty with the need for social control in order that the freedoms guaranteed to the individual subserve the larger public interests. It would follow that the reasonableness of the restrictions imposed under the impugned Act would have to be judged by the magnitude of the evil which it is the purpose of the restraints: to curb or eliminate. The test of reasonableness wherever prescribed should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. I do not refer to this case for any other purpose, because it deals with vicarious criminal liability, Mr. Sorabjee also cited to me the judgment of the Supreme Court in Badri Prasad v. Collector, Central Excise : AIR1971SC1170 where confiscation under Section 71 of the Gold Control Act appeared to the learned Judges to be unduly harsh and, therefore, was an unreasonable restriction on the right of a person to acquire, hold and dispose of gold articles or gold ornaments. The Court held that the section may be applied indiscriminately and cannot, therefore, be upheld as saved by Clauses (5) and (5) of Article 19 of the Constitution. But, as stated by the Supreme Court in the earlier case referred to by me, the test of reasonableness should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.

21. Mr. Shah on behalf of the respondents cited the case of Collector of Customs v. Sampathu Chetty : 1983ECR2198D(SC) . The judgment disposed of a number of appeals from various High Courts. It was argued that Section 178-A of the Sea Customs Act, 1878 cast an unreasonable burden of proof on an individual and was, therefore, ultra vires Article 19 of the Constitution. This case will have great bearing on the case before me, because the Customs Act has replaced the Sea Customs Act, 1878 and the provisions of Section 178-A of the Sea Customs Act, so far as the burden of proof is concerned, are similar to those in Section 115(2) of the Customs Act. The Court observed that the test of ascertaining the reasonableness postulated of the restrictions in Article 19 should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The decision in Harakchand v. Union of India reiterated the principles laid down in the case of Sampathu Chetty. The judgment proceeds to state that adopting the test to Section 178-A of the Sea Customs Act, which operates to cast the burden of proof on the person from whose possession gold is seized to establish that the goods are not smuggled, the impugned legislation (Section 178-A) cannot be said to have overstepped the limits of reasonableness in imposing restraint on the freedom guaranteed by Article 19(1)(f) and (g) and the provision was not constitutionally invalid on that ground. The judgment observes that it was apparent that Section 178-A will include in several cases, persons who are concerned in and are charged with being concerned in the act of illicit importation. In their case, such a provision would be reasonable and so constitutionally valid, though undoubtedly it might be possible for the State to prove its case even without the aid of presumption raised by Section 178-A. Again, there might be some cases where goods are seized from a person who is unable to account satisfactorily for his ownership or possession. In such cases also, it cannot be suggested that the shifting of the burden of proof would be unconstitutional. The deleterious effects of wide-spread smuggling in commodities like gold, which constitutes not only a loophole for escaping duties but also a threat to the effective fulfilment of the objectives of foreign trade control, are real and it is not in dispute that the prevention and eradication of smuggling is a proper and legally attainable objective and that is sought to be achieved by the relevant law. If, therefore, for the purpose of achieving the desired objective and to ensure that the intentions of Parliament shall not be defeated, a law is enacted which operates somewhat harshly on a small section of the public, taken in conjunction with the position that without a law in that form and with that amplitude smuggling might not be possible of being effectively checked, the law cannot be held to be violative of the freedom guaranteed by Article 19(1)(f) and (g) as imposing an unreasonable restraint. That the restrictions are in the interest of the general public is beyond controversy. The social good to be achieved by the legislation is not so disproportionately small that on balance it could be said that it has proceeded beyond the limits of reasonableness. Acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. I think, the remarks apply with great force to the case before me. In the judgment, the Report of the Taxation Enquiry Commission 1953-54 (p. 320) is quoted in support of the fact that the evil of smuggling was widespread in the country. In the present case, Section 115(2) does cast an unreasonable burden on the owner of a vehicle, but it must be remembered that in most cases of hire-purchase, the owner will be an innocent party. If the vehicle is exempted from confiscation for that reason, all that the smugglers will do is to transport smuggled goods in vehicles taken on hire-purchase to save the vehicles from confiscation. Such an interpretation may even lead to smugglers acquiring vehicles benami or entering into bogus hire-purchase agreements to enable the ostensible owner to claim back the vehicle. This will lead to wide-spread evasion of the law and will facilitate smuggling. In my opinion, Section 115(2) imposes reasonable restrictions on the fundamental rights guaranteed by Article 19(1)(f) and (g).

22. Mr. Sorabjee also argued that as no precautions have been specified in any rules made under the Customs Act, there can be no confiscation of a vehicle. I have already dealt with this point and observed that I am assuming in this case that the smuggled goods have been transported in the vehicle without the knowledge or connivance of the owner and that he has taken all necessary precautions to see that the vehicle is not used for transport of smuggled goods. But the matter does not end there. The owner has also to prove that the transport was done without the knowledge or connivance of the driver. In this case, there is a finding of fact that the driver was transporting smuggled goods with full knowledge. Precautions to be taken by him to see that the vehicle is not used for transporting smuggled goods can only relate to transportation by others and not by himself. The absence of rules in this respect does not affect the matter. Mr. Sorabjee cited the case of Narendra Kumar v. The Union of India [1960] 21 S.C.R. 375 in support of his contention that where no rules are framed the provision of law cannot be enforced. But I find that the said case has no application to the facts of this case.

23. In the result, the petition fails and is dismissed with costs.