2023 (11) TMI 427 - HC - Customs

Violation of principles of natural justice - appellant's request for cross-examination of parties, whose statement has been relied upon, has not been considered - Opportunity of hearing not granted - Article 14 of the Constitution of India - HELD THAT - While the submission is agreed that cross-examination is also a part of/ facet of natural justice, however, there is no absolute right for cross-examination, for it would depend on the facts of each case. As found by the learned Judge, whether the appellant was granted personal hearing or not, turns out to be a disputed question of fact. The examination of such disputed question of fact is normally an exercise, which is beyond the realm of writ jurisdiction - It is also found that when there is an alternate remedy that is available, Courts would exercise restraint in entertaining the writ petitions. Further, entertaining the writ petitions is a matter of discretion and such discretion having been exercised by the learned Judge by rejecting the writ petition on the ground of existence of alternate remedy, this Court in appeal would normally be loathe in interfering with exercise of such discretion. There are no reason to interfere with the order of the learned Judge - this court permits the appellant to file appeal before the Appellate Authority, within a period of 30 days from the date of receipt of a copy of this judgment - appeal disposed off.

Summary

Issues involved:
The judgment deals with the issues of violation of principles of natural justice, denial of cross-examination, and failure to grant a personal hearing in a case involving a Customs Officer accused of involvement in gold smuggling.

Violation of Principles of Natural Justice:
The appellant challenged the order-in-original dated 12.07.2022, alleging a violation of principles of natural justice. The appellant contended that the rejection of the request for cross-examination of involved parties and the failure to grant a personal hearing amounted to arbitrariness violating Article 14 of the Constitution of India. The appellant argued that the denial of the right to cross-examine and the absence of a personal hearing impeded the fair adjudication of the case.

Request for Cross-Examination:
The appellant, a Customs Officer, requested to cross-examine various personnel and parties involved in the case, including the Investigating Officer, Shift Officers, passengers, and others. The appellant's repeated requests for cross-examination were allegedly ignored, leading to the denial of a crucial aspect of natural justice in the adjudication process. The rejection of the cross-examination request was based on the perception that it was a delay tactic, disregarding the appellant's right to challenge the evidence presented against him.

Failure to Grant Personal Hearing:
The appellant also raised concerns regarding the failure to grant a personal hearing as mandated under Section 122 A of the Customs Act, 1962. The appellant argued that the absence of a personal hearing deprived him of the opportunity to present his case effectively and address the allegations against him. However, the impugned order claimed that multiple personal hearings were offered to the appellant, which he allegedly did not utilize, leading to a dispute over the actual fulfillment of the requirement for a personal hearing.

Judicial Analysis and Disposition:
The High Court, while acknowledging the importance of cross-examination as a facet of natural justice, emphasized that the right to cross-examine is not absolute and depends on the circumstances of each case. The Court noted that the question of whether the appellant was granted a personal hearing was a disputed factual issue, typically beyond the purview of writ jurisdiction. The Court highlighted the availability of alternate remedies and the need for judicial restraint in entertaining writ petitions when such remedies exist.

Appellate Authority's Role:
The Court declined to interfere with the lower court's decision, citing the existence of an alternate remedy through an appeal process. The appellant was granted permission to file an appeal before the Appellate Authority within 30 days. The Appellate Authority was directed to consider the appeal without raising issues of limitation and to provide an opportunity for a personal hearing to the appellant, ensuring a fair and expeditious review of the case.

Conclusion:
The writ appeal challenging the lower court's order was disposed of without costs. The appellant was allowed to file an appeal before the Appellate Authority within a specified timeframe. The judgment emphasized the importance of procedural fairness, including cross-examination and personal hearings, in upholding principles of natural justice in legal proceedings related to customs violations.