BANWARILAL PASARI Vs. D R KOHLI

JUDGEMENT

(1.) The petitioner in this application challenges the order of confiscation of a motor vehicle seized by the customs. The order was passed on 28th August, 1967. According to the petitioner, the petitioner by an agreement in writing had hired oat to the respondent No. 3 an Ambassador Motor Car bearing No. GED 7173 upon a hire-purchase agreement. The said car was seized near Krishnagar Division on the ground that the car was used as a means of transport of smuggling goods to the then Indo-Pakistan border. A show cause notice was issued and it was alleged that the car was liable to be confiscated under Section 115 (2) of the Customs Act. The petitioner showed cause. Thereafter personal hearing was granted and the respondent No. 1, the Collector of Customs on the 28th August, 1967 passed an order and the order was received by the petitioner on the 9th November, 1967. The respondent No. 1 found that the car had been utilised on several occasions for the alleged smuggling of goods and transporting of passengers to the then Indo-Pakistan border. In the aforesaid view the respondent No. 1 directed confiscation of the car absolutely under Section 115 (2) of the said Act. The petitioner contends in this application that the petitioner should have been given an option in terms of the proviso to Section 115 (2) of the said Act. Section 115 (2) of the Act provides as follows :--

(2.) The petitioner made an application to this Court which came up for hearing before B. C. Mitra, J. and by a judgment delivered on the 17th July, 1969 his Lordship was pleased to discharge the Rule on the ground that the Union of India in whom the title of the said motor vehicle had vested on confiscation had not been made a party to the said proceeding. The petitioner thereupon made this application under Art. 226 of the Constitution making the Union of India a party respondent to this application.

(3.) It was urged that inasmuch as it was held in the decision of B. C. Mitra, J. in the case of Vaishali Finance Corporation v. D. R. Kohli, Matter No. 18 of 1968 (Cal.), that under the proviso to Section 115 (2) of the said Act an option should have been given to the owner before making the order of confiscation and as in this case no opportunity for exercising any option had been given to the petitioner the order was liable to he set aside. It has been further contended that the defect which was there in the previous application had been remedied.