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TMI Blog1959 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... employed by the Pakistan International Airways. He was interrogated. Whilst referring to previous transactions in which he was concerned, he admitted that he had brought a similar consignment containing gold from a Pakistan international Airways plane which had arrived from Pakistan on 7th September 1957 and that he had handed it over to one Julio Lobo. Julio Lobo when questioned admitted having received the said consignment. Julio Lobo stated that it consisted of 100 tolas of gold. He further stated that this gold was sold by him to a goldsmith by name Bansal Sagar-mal Porwal. Bansilal Sagarmal Porwal in his turn admitted having purchased this gold. Bansilal Sagar-mal Porwal stated that he got the said! gold melted adding base metal to it and converted it into a patla or bar bearing No. M-1565, which weighed 103 tolas and 29 vals. He sold this bar of gold to one Choksi Chimanlal Purshottam. Choksi Chi-manlal Purshottam admitted the purchase of this gold and stated that he had sold the same to the Petitioners. The Petitioners admitted having purchased the said gold bar bearing No. M-1665 on 11th September 1957. It is the case of the Petitioners that they were the purchaser for va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise. Department carried out a raid in the petitioners' Pedhi and seized the aforesaid two bars of gold weighing 452 tolas and 17 1/2 vals. They also seized the aforesaid bar of gold weighing 133 tolas and 13 1/4 vals from Messrs. Mohanlal Bhagwandas Choksi and Co. They seized a bar of gold weighing 109 tolas and 32 vals from Messrs. Gokuldas Mohanlal and Co. the same being the bar into which the aforesaid bar weighing 92 tolas and 8 vals was converted. 4. On 21st November 1957 the Petitioners, the said Gokuldas Mohanlal Co. and the said Mohanlal Bhagwandas Choksi and Co. were called upon by the Collector of Central Excise, Bombay, to show cause why the aforesaid gold bullion should not be confiscated under Section 167 (8) of the Sea Customs Act. On 26th, November 1957 the Petitioners' attorneys requested the Collector of Central Excise, Bombay, to furnish to them certified copies of the statements of witnesses which were proposed to be relied upon by the Collector of Central Excise, Bombay. On 7th January 1958 a reminder was sent in this connection to the Collector of Central Excise, Bombay. On 10th March 1958, the Collector of Central Excise sent three statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 183 ibid to pay the following fines in lieu of such confiscation: (a) 2 bars seized from M/s. Valimohamed Gulamhusain Sonavala ₹ 8,000 (b) 1 bar seized from M/s. Mohanlal Bhagwandas Choksi and Co. ... ₹ 2,350 (c) 1 bar seized from M/s. Gokuldas Mohanlal and Co. ... ... ₹ 1,650 It is the validity of this order which has been challenged by the petitioners in the present petition. 6. There are various grounds advanced in support of the petition. It is complained that the statements made by Bansilal Sagarmal Porwal, Dina Mangtu and Julio Lobo have been relied upon by the 1st respondent without any opportunity being given to the petitioners to cross-examine them. It is admitted that the statements of these three persons viz. Bansilal Sagarmal Porwal, Dina Mangtu and Julio Lobo were taken prior to the seizure of gold from the hands of the petitioners. At the date when these statements were made, no inquiry had been instituted against the petitioners. The petitioners claim that if these statements are to be used against them, they must have an opportunity of cross-examining the persons who made these statements and that as such opportunity was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man was justified. One of the reasons given by the Tribunal for holding that the dismissal was not justified was that proper procedure had not been followed. In the course of his judgment, Wanchoo, J. who delivered the judgment of the Supreme Court observes at p. 1113 as follows: The Manager's test money shows that the witnesses who were present at the enquiry were not examined in the presence of Das, It also does not show that copies of the statements made by the witnesses were supplied to Das before he was asked to question them. Further his evidence does not show that the statements which had been recorded were read over to Das at the enquiry before he was asked to question the witnesses. It is true that the statements which were recorded were produced on behalf of the company before the Tribunal; but the witnesses were not produced so that they might be cross-examined even at that stage on behalf of Das. The question is whether in these circumstances it can be said that an enquiry as required by principles of natural justice was made in this case. We may in this connection refer to. That was a caw relating to the dismissal of a public servant and the question was wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10a. My attention was also called to another unreported decision of the same Judge delivered on 8th October 1959 in Misc. Application No. 1 of 1959 : Jal Hormusji Khajotia v. T. C. Shetb. That was also a case under the Sea Customs Act, the inquiry being held in respect of an offence under the provisions of Section 167(8) of that Act. In that case, however, the statements in respect whereof a complaint was made by the petitioners that they had no opportunity of cross-examining the person who made them, were statements of persons to whom a reference had been made by the petitioners themselves so that the investigating officer may inquire of them about the case. In the words of the learned Judge, the persons who made the statements were indicated by the petitioners as persons from whom the department should gather information which would prove truth of the case of the petitioners. The learned Judge held that they were not the witnesses of the department and that they were going to be, if at all, the witnesses of the petitioners in that case. The learned Judge did not in that case think it right to set aside the order not because he did not affirm the principle that under the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (1915) AC 120 (138) in which the Court said 'that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation'; and again in the Board of Education v. Rice (1911) AC 179, 182, the Court said: They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view'. It is obvious from the record in this case that the plaintiff had ample opportunity to correct or contradict any statement prejudicial to his view which had been recorded ..... The Court upheld the order of the Court below which had held that the plaintiff could not legitimately urge that witnesses were not examined in his presence or that he was not allowed to examine them and consequently the proceedings were illegal. 12. The second judgment is an unreported judgment of a Division Bench of this Court consisting of Chagla, C. J. and Tendolkar, J. delivered on 5th October 1956 in Appeal No. 75 of 1956 (Misc. Appln. No. 184 of 1956), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Court of law undoubtedly a party has a right to be orally heard. The law may require that a certain tribunal should hear parties orally or a tribunal may frame its own rules of procedure which would give a right to a party to be orally heard. But in this case it is not suggested that there is any provision of law which entitles the petitioner to be heard orally. The section under which the order is made is Section 182 of the Sea Customs Act which talks of adjudication by the Excise Officer and by reason of that section undoubtedly the order passed by the Deputy Collector becomes a quasi-judicial order. Therefore there is an obligation upon the Deputy Collector to act judicially and by reason of that obligation he is bound to hear the petitioner.... 13. This decision has been very strongly relied upon for the purpose of showing that even the right to be heard orally was not available to a person where the inquiry was being held under the provisions of the Sea Customs Act which may result in the confiscation of goods. It is urged that if there is no right to a personal hearing, there could not possibly be a right to have the evidence of witnesses recorded in the presence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ventive Detention Act, 1950. the learned Chief Justice of India thereafter proceeds to observe as follows : A right to lead evidence against facts suspected to exist is not essential in the case of preventive detention. Article 22(6) permits the nondisclosure of facts. That is one of the clauses of the Constitution dealing with fundamental rights. If even the non-disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the non-inclusion of such procedural right could make this Act invalid. 14a. In the case , it has been observed by the Supreme Court at p. 236 as follows : x x x it has got to be observed that the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary. In that case, a question had arisen in connection with a police report which had been furnished to the Appellate Authority under the Motor Vehicles Act in connection with applications for the issue of a stage carria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples of natural justice liable to be observed by quasi-judicial tribunals. 16. In this view of the matter, I must hold that in the case before me, the principles of natural justice have not been observed inasmuch as the statements of the three witnesses Bansilal Sagarmal Porwal. Dina Mangtu and Julio Lobo taken in the absence of the petitioners were relied upon without producing the witnesses for cross-examination and the right of cross-examination has been in terms denied. 17. It is next urged by the learned Advocate-General, who appears for the petitioners, that the principles of natural justice have not been observed in this case, inasmuch as the well-settled rule of prudence, which has now become a rule of law, that evidence of an accomplice cannot be relied upon against an accused unless corroborated in material particulars has not been observed. It has been strenuously urged on behalf of the respondents that this principle has no application to proceedings before a quasi-judicial tribunal. In the case before me, the petitioners arc innocent purchasers for value of gold without notice that the gold was tainted with the vice of smuggling. Proceedings under the Sea Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 49 vals of gold was smuggled gold, the responsibility of mixing the same with the other gold was that of the petitioners and they cannot take advantage of their own wrong . The first respondent has sought to confiscate the gold under the provisions contained in Section 167(8) of the Customs Act. That section provides as under; If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to Such prohibition or restriction ..... such goods shall be liable to confiscation..... Acting under this provision the first respondent has purported to confiscate 103 tolas and 29 vals of gold out of a total quantity of about 694 tolas of gold. Having seized a much larger quantity of gold, it would be his duly to separate the smuggled gold which he had confiscated from the unsmuggled gold and to return to the lawful owners the unsmuggled gold. Having realised the impossibility of Separating the smuggled gold from the unsmuggled one, he has retained all the quantity of gold and has given the option of payment of fine, which he was under an obligation to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 168 of the Sea Customs Act, 1878, in support of the order. That section runs as follows: 168. The confiscation of any goods under the Act includes any package in which they are found and all the other contents thereof. It is urged that when smuggled gold is mixed in the crucible with unsmuggled gold and the two are Fused so as to constitute a bar the whole should be treated as a package within the meaning of Section 168 and that as that package contains smuggled gold, that package is liable to be confiscated. The word package has been used at several places in the Act. The word package finds its place is Section 167(37). The provisions in that connection are as follows: 167(37). If it be found, when any goods are entered at, or brought to be passed through, a custom-house, either for importation or exportation, that (a) the packages in which they are contained differ widely from the description given in the bill of entry or application for passing them; or xxx (c) the contents of such packages have been misstated in regard to sort, quality, quantity or value; or (d) goods not stated in the bill of entry or application have been concealed in, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to state it in another way, just as they came from the works. I confess I do not see how I can hold that there is any package to which the clause can refer. Package must indicate something packed. It is obvious that this clause cannot refer to all cargoes that may be shipped under the bill of lading; for instance, on a shipment of grain it could apply to grain shipped in sacks, but could not, in my opinion, possibly apply to a shipment in bulk, x x x While I hope I am not giving an unduly narrow construction to the clause, I do not feel that I can hold that a motor car put on a ship without a box, crate or any form of covering is a package, without doing violence to the English language. 21. Mr. Justice Dixit and Mr. Justice Shelat of this Court had occasion to consider the meaning of the word package in Special Civil Application No. 1304 of 1957, decided on 1st August 1957. In the course of his judgment Mr. Justice Shelat observes as follows : The word package has not been defined in the Sea Customs Act, and, therefore, it cannot be said that the word package ' has any peculiar or unusual meaning attached by the legislature. We must, therefore, treat the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid in law. I have referred to this fact inasmuch as it has urged by the learned Advocate General that if the respondents were permitted to rely upon the provisions of Section 178-A of the Sea Customs' Act, he would rejoin by saying that Section 178-A itself was invalid having regard to the fundamental right guaranteed under Article 19(1)(f) and (g) of the Constitution. 24. In view of what I have stated above, the petitioners are entitled to a writ of certiorari setting aside the order of the first respondent, dated 13-6-1959, and I order accordingly. 25. Mr. Peerbhoy, having stated that the gold in question is in the possession of the third respondent, a writ of mandamus will issue against the third respondent for restoring possession of the seized gold weighing 452 tolas and 17 1/2 vals to the petitioners. 26. One month's time is given to the 3rd respondent to restore possession of the gold. 27. So far as the Union of India is concerned, the Petitioners have not pressed their petition against the Union of India. The Petition against the Union of India will stand dismissed. 28. The matter was of considerable importance and has gone on before me for nearly 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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