VEERASWAMI, J.The petitioner is said to be the owner of a lorry, M.D.S. 4105. The lorry loaded with bundles of tamarind, samai and veppakottai was stopped and checked by the Deputy Commercial Tax Officer, Dharmapuri, at about 3 p.m., on 17th September, 1962, at the junction of Pennagaram Road and Salem-Bangalore Road within Dharmapuri town limits. The trip sheet showed the consignor's name as one Rangiah Chetty and the consignee as "self". The driver had no delivery notes or sale bills with him for the consignment. Contrary to instruction by the checking officer, the driver drove away the vehicle towards Salem and returned to the spot at 10 p.m. The explanation of the driver was that out of fear he had driven away and after seeing the owner of the lorry he had come back. In lieu of confiscation, a penalty of Rs. 750 was levied which the driver paid on the spot. The Tribunal dismissed the petitioner's appeal.

The only point urged before us is that under the terms of section 42(3) with the provisos read with rules 36(2) and 35 penalty in lieu of confiscation can only be imposed on the dealer or the owner of the goods, and that in the absence of a finding that the petitione