VIJAYAN Vs. ASST EXCISE CUMMR CANNANORE

JUDGEMENT

(1.) The Preventive Officer and party of the Excise Range Office, Manantoddy, on search found in the Suit Case of a passenger travelling in a bus belonging to the petitioner 20 half bottles of foreign liquor, and 3 half bottles of similar liquor in a packet with him. The passenger admitted that he was illicitly transporting them and compounded the offence. The Conductor, the Driver and the Cleaner of the bus denied that they knew about such illicit transport of foreign liquor by the passenger or that they in any way connived in it. According to them, they had taken all reasonable and necessary precautions against the use of the bus to carry contraband articles. The petitioner also contended that he in no way knew of the user of the bus for clandestine and illicit transport of contraband articles and he in no way connived ia it; and that he too had taken all reasonable and necessary precautions against such user of the bus. The Preventive Officer and party seized the bus. The first respondent before whom the bus on seizure was produced took the view that in the absence of any rule or law which prohibits the employees of a bus verifying the contents of a packet or a suit case carried by a passenger in the bus, they ought to have checked and verified the same, but they failed to do so and therefore they had not taken all reasonable and necessary precautions against the user of the bus for illicit transport of contraband articles. The bus was, as a result, ordered to be confiscated. The second respondent who is the appellate authority confirmed the order of confiscation and fixed a fine of Rs. 4000/- for release of the vehicle in lieu of confiscation. These orders, Exts. P6 and P8, are questioned in this Writ Petition.

(2.) The respondents seem to have approached the question involved in this case from a wrong angle. No doubt, under S.67C(2) of the Abkari Act, 1077 (hereinafter: the Act) the onus is on the owner to prove to the satisfaction of the authorised officer that the bus was used in carrying the contraband articles without his knowledge and conveyance and also without the knowledge and connivance of his agent, if any, and of the person in charge of it; and he has to prove further that each of them had taken all reasonable and necessary precautions against such use. What would amount to reasonable and necessary precautions would, in the absence of a provision like: all such precautions against such use as are for the time being specified in the rules' in S.115(2) of the Customs Act, 1962 and of rules prescribed in that behalf, vary from case to case. Unlike the Customs Act, 1962, the Act, instead of providing for prescription of rules specifying the precautions to be taken against such use of a conveyance, appears to have left the matter to the prudence and the discretion of the owner, the agent and the person in charge of the conveyance; they have to take 'reasonable and necessary precautions against such use', or in other words, precaution which, tested by the standards of an ordinary and prudent owner, agent or the person in charge of the conveyance, are necessary and sufficient. If there be any rule specifying the nature of precautions to be taken by them, and if any one of them fails to comply with such a rule, then, perhaps, it would be possible to argue that the rule in De Keyser v. British Railway Traffic and Electric Company Limited (1936 (1) KB 224) may govern the case, for it can be said of a case falling under such a statute and rules:

(3.) The above quoted rule was stated by Lord Hewart C. J. with reference to the Customs Consolidation Act, 1876 and was relied on by the Calcutta High Court in Ananda v. T. C. Seth ( AIR 1956 Cal. 553 ) in a case falling under S.168 of the Sea Customs Act, 1878; both the statutes mentioned above did not contain a provision like sub-s.2 of S.115 of Customs Act, or sub-s.2 of S.67C of the Act. This strict liability theory seems to proceed on the basis that the conveyance forms part of the contraband goods, and the contraband goods including the conveyance themselves become the offender wherefore mens rea of the owner of the goods and of the conveyance and the person in charge of it is an irrelevant consideration. The Act makes a departure from this rule and enables the owner of a conveyance, and him alone, to prevent its confiscation by proving to the satisfaction of the authorised officer that the conveyance was used for carrying the contraband goods, as already, pointed out, without his knowledge and connivance as also without the knowledge and connivance of his agent and the person in charge of it, and further that each of them had taken all reasonable and necessary precautions against such use, thereby requiring an element of guilty mind (mens rea) to constitute the offence, but casting the burden of proof of absence thereof on the owner. So, even in case where guidelines have been prescribed by rules as regards what all precautions are to be resorted to by the owner of a conveyance, his agent, and the person in charge of it, it could be contended (and it was so held by my learned brother Poti J. with reference to S.115(2) of Customs Act, 1962) that: