C.M. VIJAYAN Vs. ASSISTANT EXCISE COMMISSIONER AND ANR.

JUDGEMENT

(1.) THE Preventive Officer and party of the Excise Range Office, Manantody, on search found in the suitcase 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 in 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 suitcase 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. 4,000 for release of the vehicle in lieu of confiscation. These orders, Exts. P -6 and P -8, 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 Section 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 connivance 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 Section 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 the 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 Kevser v. British Railway Traffic and Electric Co. Limited, 1966 (1) K.B. 224 may govern the case, for it can be said of a case falling under such a statute and rules:

(3.) A decision of the Supreme Court, State of M.P. v. Azad Bharat Finance Co. : 1967 (1) S.C.W.R. 111 : A.I.R. 1967 S.C. 276 can with advantage be referred to here. Construing the following provisions of the Opium Act, 1878 as amended by the Opium (Madhya Bharat Amendment) Act, 1955 - -