B.K.Rathi - (1.) -The petitioner is a Transport Company. Its truck was carrying 340 bags of tea, which was loaded from Tinsukia on behalf of M/s. Rossell Industries Ltd., and was to be taken to Tundla in the godown of M/s. Hindustan Lever Ltd. It is contended that Kamla Singh, driver of the truck, out of sheer greed, probably loaded some contraband material in the truck during the journey. That the said truck was intercepted by the customs authorities on 23.10.2000 and it is alleged that 250 kgs. of Nepali Ganja was recovered from the truck which was concealed in the tea bags. The truck along with the goods were, therefore, seized. The statement of the driver Kamla Singh was recorded under Section 107/108 of the Customs Act.
(2.) THE petitioner being a transporter moved an application for release of 340 bags of the tea. It is contended that the above tea was being transported after obtaining gate pass and invoice for removal of excisable goods No. 116 dated 14.10.2000. That the tea is a perishable item. That truck was transporting the tea with proper papers and authority. That there is no fault of the petitioner and he had no knowledge that the driver loaded the Nepali Ganja in the truck. That therefore, the tea should be released in favour of the petitioner. The application for release was rejected by the Special Judge, N.D.P.S. Act, Azamgarh by order, dated 4.4.2001, Annexure-6 to the petition. Therefore, the petitioner has approached this Court under Section 482, Cr. P.C. I have heard Sri Manish Tiwary, learned counsel for the petitioner and Sri S. K. Singh, learned counsel for the opposite party No. 2.
(3.) IT is contended by the learned counsel for the petitioner that the pe-titioner is a transport company having contracts with various multi-national companies. That the goods of M/s. Rossell Industries Limited were being transported to M/s. Hindustan Lever Limited. Both of them are multi-na-tional companies. IT is contended that there were valid papers, gate pass and invoices for removing of exisable goods. IT is further argued that statement of the driver Kamla Singh was recorded under Section 107/108, Customs Act, in which he stated that during the journey he took one passenger who put the contrabaned Ganja in the truck without his knowledge. That, therefore, according to his statement, there was no fault on the part of the petitioner and it was in the truck without the knowledge and consent of the petitioner. That, therefore, the tea should be released as it is a perishable item. As against this, it has been argued by Sri S. K. Singh learned counsel for the Union of India that Section 119 of the Customs Act, 1962 provide for the confiscation of the goods used for concealing of smuggled goods. It has been argued that the tea bags were used for concealment of the Ganja and, therefore, they are also liable to be confiscated. It is further contended that notice regarding confiscation under Section 124 of the Customs Act has been issued to the petitioner of which no reply have been submitted. It is further contended that Section 451, Cr. P.C. does not apply, and the Court has no jurisdiction to release the goods seized by the customs authorities.;