MANU/MH/0166/1973

Equivalent Citation: 1974(76)BOMLR675

IN THE HIGH COURT OF BOMBAY

O.C.J. Miscellaneous Petition No. 339 of 1972
Decided On: 12.06.1973
Appellants: Tata Engineering and Locomotive Co. Ltd.
Vs.
Respondent: The Union of India (UOI)
Hon'ble Judges/Coram:
J.L. Nain, J.
Case Note:
Customs Act (LII of 1962), Sections 115 (2), 2 (9), 2 (31)(d)--Truck given
on hire-purchase by company--Truck used for carriage of smuggled goods--
Company whether to discharge burden of proof cast by Section 115(2),
Customs Act--Knowledge of hire-purchaser's driver and cleaner, effect of--
Construction of statute-Use of clear and unambiguous language--Principle
of law of torts, whether applicable in construing Section 115(2), Customs
Act--Doctrine of vicarious liability, applicability of--Words "shall be liable to
confiscation" in Section 115(2), whether permissible or obligatory--Section
115(2) whether hit by Article 19 (1)(f), (g), Constitution of India--
Shareholder, right to impugn order of confiscation passed against company.
Where the authorities have found as a fact that a truck was used for
carriage of smuggled goods by the driver himself with full knowledge that
what he was carrying was smuggled goods, then failure on the part of the
owner to prove absence of knowledge or connivance of the driver would, on
a plain reading of the provisions of Section 115(2) of the Customs Act,
1962, render the truck liable to confiscation. The absence of rules
specifying precautior's to be taken, on the driver's part can make no
difference in a case where the truck is used by the driver himself for
carriage of smuggled goods.
Where, by the use of clear and unambiguous language capable of one
meaning only, anything is enacted by the Legislature, it must be enforced
however harsh the result may be unless a fundamental right is
contravened.
In every case, the object of interpretation and of construction is to discover
the intention of the law-giver. That object can be best achieved by first
looking at the language used in the relevant provisions. Other methods of
extracting meaning can be resorted to only if the language used is
contradictory, ambiguous or leads really to absurd results. Where the
meaning of a statute is clear and sensible, interpolation is improper.
R.M.D.C. v. Union of India [1957] A.I.R. S.C. 628, s.c. 59 Bom. L.R. 973
Kedar Nath v. State of Bihar [1962] A.I.R. S.C. 955 B.L. Arora v. State of
Uttar Pradesh [1964] A.I.R. S.C. 1230 and O. Narayanaswami v. 6.
Pannerselvam [1972] 3 S.C.C. 717 referred to.

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 Though the provisions with regard to confiscation of a vehicle under
Section 115(2) of the Customs Act, 1062, is penal in character, yet when
such a liability is created by the statute, it must be determined on the
interpretation of the statute itself and not with reference to the principles
of law of torts.
Amba Lal v. Union of India [1061] A.I.R. S.C. 264 and Shanti Prqsad v.
Director of Enforcement [1962] A.I.R. S.C. 1764 referred to.
There is no scope for the introduction of the doctrine of vicarious liability
for criminal or tortious acts of others in the interpretation of Section 115(2)
of the Customs Act, 1962.
Gardner v. Akeroyd [1952] 2Q.B. 743 referred to.
As the words "shall be liable to confiscation" used in Section 115(2) of the
Customs Act, 1962 are permissible and not mandatory or obligatory, there
can be no question of striking down Section 115(2) as an unreasonable
restriction under Article 19 of the Constitution of India.
Indo-China Steam Navigation Co. v. Jasjit Singh [1964] A.I.R. S.C. 1140
and State of M.P. v. Azad Bharat Finance Co. [1967] A.I.R. S.C. 276 referred
to.
In most cases of hire-purchase where trucks are used for carriage of
smuggled goods, the owners will be innocent parties. But if for such a
reason vehicles are exempted from confiscation, the smugglers will
transport smuggled goods in vehicles taken on hire-purchase or acquired by
bogus hire-purchase or benami, thus leading to wide-spread evasion of law.
So, even though in the case of owners of vehicles given on hire-purchase
the provisions of Section 115(2) of the Customs Act cast a heavy burden to
prove the absence of knowledge and connivance and the precautions taken
by a person over whom they have no control, yet regard being had to the
fact that the prevention and eradication of smuggling is a proper and
legally attainable objective, it must be held that the provisions impose
reasonable restrictions on the fundamental rights guaranteed under Article
19 (1)(f) and (g) of the Constitution of India.
Harakchand v. Union of India [1970] A.I.R. S.C. 1453 relied upon.
Badri Prasad v. Collector, Central Excise [1971] A.I.R. S.C. 1170 and
Collector of Customs v. Sampathu Chelty [1962] A.I.R. S.C. 316 referred to.
Fundamental rights of shareholders and citizens are not lost when they
associate to form a company. Where, therefore, a shareholder of a company,
against which a confiscation order had been passed was a party to a
petition, it was held that as the order of confiscation would put the
company to financial loss which affected every shareholder, the
shareholder, being a citizen of India, was entitled to maintain the petition
on the allegation that the order infringed fundamental rights guaranteed to
him under Article 19 (1) of the Constitution of India.
R.C. Cooper v. Union of India [1970] A.I.R. S.C. 564 and B.C. cfc Co. v.
Union of India [1973] A.I.R. S.C. 106 relied upon.

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 S.T. Corpn. of India v. Commrcl. Tax Officer [1963] A.I.R. S.C. 1811 and
Tata E. & L. Co. Ltd. v. State of Bihar [1965] A.I.R. S.C. 40 referred to.
JUDGMENT
J.L. 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 installments 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.

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 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 MANU/SC/0036/1964 : [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 MANU/SC/0011/1970 :
[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 MANU/SC/0038/1972 :
[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

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 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,

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 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 case 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.
1 0 . 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.

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 13. In the case of Amba Lal 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 MANU/SC/0250/1962 :
[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.
1 4 . 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

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 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).
1 7 . I shall deal with the case of State of M.P. v. Azad Bharat Finance Co.
MANU/SC/0089/1966 : 1967CriL J285 in considerable detail, because Mr. Sorabjee
placed great reliance on this case. This was a case under Section 11 of the Opium

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 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 MANU/WB/0060/1959 : 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. MANU/SC/0094/1964 : 1964CriL J234 . 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

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 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 cases 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
MANU/SC/0020/1957 : [1957]1SCR930 Kedar Nath v. State of Bihar
MANU/SC/0074/1962 : 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 MANU/SC/0362/1972 : [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

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 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 MANU/SC/0038/1969 : [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 MANU/SC/0466/1971 : 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 MANU/SC/0089/1961 : 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

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 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.

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