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TMI Blog1966 (3) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued to him within six months of the seizure of the goods. But there is a proviso to that sub-section which authorises the Collector of Customs to extend that period of six months by a further period not exceeding six months on sufficient cause being shown. (4) On September 19, 1963 a communication was despatched by the Collector of Customs to both the petitioners which purported to be an order of extension made under the proviso to S. 110(2) of the Act extending the period within which the notice required under S. 110(2) could be issued, till February 20, 1961. this notice was followed up by a show cause notice issued under Section 124(a) bearing the date December 19, 1963. (5) These writ petitions were presented on January 9, 1964 in which we are asked by the petitioners to quash the order by which the Collector of Customs extended the period within which the show cause notice could be issued till February 20, 1964 and also the show cause notice issued on December 19, 1963 and to issue a writ to prohibition restraining the Collector of Customs from proceeding with the proposed enquiry. We are also asked to issue a Writ of Mandamus directing the return of the gold to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date when the gold was seized. In support of this submission more than one argument was presented. The first was that the order made by the Collector of Customs under the proviso to Section 110(2) extending the period within which a notice under Section 124(a) could be issued, was not really made on August 18, 1963 which is the date it bears, but was made after the period of six months referred to in Section 110(2) had expired. It was urged that the Collector made an order of extension after the expiry of that period of six months, and antedated it so as to make it appear that the extension was made during the currency of the period of six months to which Section 110(2) refers. In support of this submission, our attention was firstly asked to the fact that the communication by which the order of extension was communicated to the petitioners, was posted only on September 19, 1963. It was submitted that if really the extension had been ordered on August 18, 1963 as it purports to have been done, there was an inexplicable delay over a period of a month and a day in the communication of that order in the petitioners. (10) Now the petitioners received the copy of the order by whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the notices which were sent to the petitioners through their Advocate in October 1963, there was no suggestion that the notices which they received respectively on September 20 and September 21 1963, were antedated notices. Those notices bore the date August 18, 1963. Although they were posted on September 19. 1963, they were received by the petitioners on September 20, 1963 in the one case and on September 21, 1963 in the other. (14) The Advocate's letters were addressed more than a month after the receipt of those notices, but nevertheless, beyond stating that the Deputy Superintendent made an attempt to secure acknowledgments from the petitioners in a restaurant, the petitioners did not allege that the Collector himself had antedated his orders. The allegation that he inserted fictitious dated on his orders was made for the first time in the affidavits produced by the petitioners in which it was stated that the notices served on the petitioners and the orders made by the Collector were antedated. (15) In an affidavit produced on behalf of the respondents of which the dependent is the Superintendent of Central Excise in Bangalore, the allegation that Mr. Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n October 27, 1963, which were themselves issued after inordinate delay, nothing was stated about any such antedating having been made the Collector. The allegation was for the first time made in the writ petitions which were presented on January 9, 1964. (22) Mr. Keshava Iyengar, the learned Government Pleader, has produced before us the original order made by the Collector and we find that the Collector, when he made his order affixing his signature to it, also mentioned the date on which he made his order. That date is August 18, 1963. (23) The mere fact that a copy of that order was not despatched to the petitioners until September 19, 1963 could not, in our opinion, constitute a ground for our believing the allegation that the order must have been made after the expiry of the period of six months specified in Section 110(2). It is true that that period of six months expired on August 21, 1963 since the seizure was made on February 21, 1963. But the submission that the despatch of the order of extension was deferred until September 19, 1963 can justify the belief that the order of extension was made sometime after August 21, 1963, rests, in our opinion, upon extremely sle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (25) What is clear from these observations made by the Supreme Court is that, although it is both necessary and proper on the part of the person against whom an allegation of mala fides is made to deny the allegation or to state his own version of the matter, the fact that he does not do so does not necessarily lead to the conclusion that the allegation is true. What the Court has to do is to judge the veracity of the allegations on tests of probability. (26) In another part of their judgment their Lordships made it clear that even if a person against whom an allegation of mala fides is made does not himself produce an affidavit repudiating the truth of that allegation, such repudiation may emanate from someone who knows personally about the truth of those allegations. This is what the Supreme Court said in that context :-- There has been no denial by the Chief Minister nor an affidavit by any person who claims or can claim to know personally about the truth about these allegations. The Secretary to the Home Department one Mr. S. A. Iyengar has filed a counter-affidavit in which the allegations we have set out earlier have been formally denied . But the Supreme Court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation. It would surely be a very unusual and inconvenient thing for the Collector at that stage to call upon the person from whom the goods were seized to show cause why the delay should not be condoned or to reveal to him the difficulties which were encountered during the investigation and which were responsible for its non-completion within the prescribed period. Disclosure of these grounds to the person from whom the goods were seized would be against public interest and would be utterly detrimental to the completion of the investigation. We therefore take the view that the petitioners had no right to be heard at the stage when the Collector ordered the extension. (32) We do not also think that it was the duty of the Collector to state in his order the grounds for such extension. For the same reasons for which we took the view that the petitioners have no right to be heard, we also reach the conclusion that, in the order of extension, the Collector need not specify what exactly were the reasons which prompted the view that time should be extended. Their disclosure at that stage, besides being improper, is harmful to the investigation which remains to be completed. (33) We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision should rest upon factors such as the purpose of the law, the mischief sought to be averted or prevented by it and the commensurateness or otherwise of the restriction imposed in the context of these two factors. (37) Mr. Government Pleader has also asked us to say that we should also take into consideration the status of the authority who is the repository of the power to perform the act which is challenged as an unreasonable restriction, the availability of remedies by way of appeal or otherwise and also the nature of the power and its ambit. (38) Now the purpose of the Customs Act among others is the prevention of smuggling and the punishment of the smuggler. The seizure of the goods believed to have been smuggled in authorised by Section 110(1), if there be reasons for believing that they have been smuggled. Section 124(a) directs that such seizure should be followed up by the issue of a notice to the person from whom the goods were seized informing him of the grounds on which it was proposed to confiscate the goods. Clause (b) of that section makes it imperative for the authority conducting the enquiry into that matter to afford an opportunity to that person of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a case is one which falls within the proviso and whether he should therefore extend the period of investigation. This authority has to consider all the circumstances and the attendant facts to form a judgment in his own mind whether there was sufficient cause for non-service of the notice within the first six months. Parliament has confided to him the power to extend the time over a further period not exceeding six months in a special case for exceptional reasons, such as non-completion of the investigation or the inability to gather all the materials and evidence supporting the charge, so that the purpose of the Act may not be defeated by efflux of the first period of six months to which sub-section (2) refers. (42) The impugned proviso makes it clear that the Collector of Customs cannot extend the time beyond a further period of six months. he has also the discretion to limit the extension of the time to a period less than six months. (43) These being the features of the proviso and having regard to its purpose and the circumstances in which it was the legislative intent that the Collector should exercise his power and also the fact that the power is entrusted to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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