2017 (11) TMI 1012 - HC - Customs

Principles of natural justice - petitioners were denied a right of cross-examination of the witnesses of the prosecution by the customs authorities - Held that - Although the petitioners have statutory alternative remedy, the petitioners have chosen to apply under Article 226 of the Constitution of India impugning the order-in-original. Existence of a statutory alternative remedy is not a complete bar to the maintainability of a writ petition. Despite existence of a statutory alternative remedy, the writ petition is maintainable if it is demonstrated that the impugned order suffers from jurisdictional error or has been passed in breach of principles of natural justice or is vitiated by bias or malice or is perverse - The petitioner was denied an opportunity to cross-examine the witnesses - the impugned order suffers from breach of principles of natural justice - petition allowed - decided in favor of petitioner.

Summary

Issues:
Denial of right to cross-examination of prosecution witnesses in an order-in-original, breach of principles of natural justice, applicability of statutory alternative remedy under Article 226 of the Constitution of India.

Analysis:
The petitioners challenge an order-in-original citing a breach of natural justice principles due to denial of the right of cross-examination of prosecution witnesses. The advocate for the petitioners argues that the denial of cross-examination violates natural justice principles and refers to specific paragraphs in the impugned order. The authority's reliance on past judgments to deny cross-examination is contested, emphasizing the necessity of cross-examination for a fair trial. The respondents argue that witness statements were recorded, and the order was based on documentary evidence, justifying the denial of cross-examination.

Despite the availability of a statutory remedy, the petitioners chose to file a writ petition under Article 226, asserting jurisdictional errors and breach of natural justice. The adjudicating authority's denial of cross-examination is highlighted as a breach of natural justice. The authority's rejection of cross-examination based on past judgments is examined, including cases like AIR 1967 Cal 80, AIR 1967 SC 122, AIR 1972 SC 2136, AIR 1984 SC 273, and AIR 1976 SC 1686, which are distinguished from the present case.

Referring to the Supreme Court's stance in Andaman Timber Industries case, the importance of allowing cross-examination to maintain fairness and justice in proceedings is emphasized. The impugned order, detailing witness depositions and denying cross-examination, is deemed to violate natural justice principles. Consequently, the order is set aside, allowing the adjudicating authority to proceed lawfully against the petitioners. The case is disposed of without costs, with provisions for urgent certified copies of the order upon request by the parties.