9911796707
TMI Blog1991 (5) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... he vessel was being used as a conveyance for disposal of foreign imported prohibited articles, exercised his power under Section 110 of the Act and at the same time on 7-4-1976 started rummaging operation which continued up to 4 p.m. on that day. On the same day he issued notice to the Master of the Vessel with the copies to both the petitioners. Petitioner V.L. Choudhury was further informed that he should ensure that no clearance was given from his side unless the Port clearance was granted by the Superintendent of Customs, Paradip Port. A copy of the notice was also sent to the petitioner B.D. Naygandhi for the purpose of information. The notice mentioned that during the rummaging operation on 7-4-1976, the Assistant Collector of Customs had recovered goods of foreign origin worth Rs. 40,000/- as per the list attached to the notice. By the notice the Master of the Vessel was directed not to sail the vessel from the port except with the previous permission of the competent customs authority. It is alleged that both the petitioners, in spite of such direction, shifted the vessel towards the deep sea which obstructed the rummaging operation and thereby facilitated the smugglers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court by their judgment dated 8-8-1990 held that the order of the Collector of Customs itself was passed ex facie under the provisions of Section 117 of the Act and on perusal of the impugned judgment of this Court, their Lordships did not find any discussion as to the fact of obstruction, if any, caused by the petitioners and, therefore, their Lordships thought it appropriate to remand the case for a fresh disposal in accordance with law in the light of the observations made by their Lordships in the Judgment and this is how the matter is again before this Court. 4. Mr. P.K. Choudhury, learned counsel for the petitioners, during the course of his argument submitted the same argument that the imposition of penalty on the petitioners by Collector of Customs is illegal and is not sustainable in the eye of law. He urged the same argument as was done previously that the provisions of Section 133 of the Act provide that such a punishment can be imposed only by a common court of law and not by the Collector of Customs. His second contention was that, the petitioners could not have been construed as officers coming within any of the clauses from (a) to (e) of Section 151 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under other provisions of the Act 'over and above the prosecution and punishment provided under Section 135'. While discussing the provisions under Sections 111 to 127 under Chapter XIV (which sections deal with confiscation of goods, imposition of penalties, adjudication with regard to confiscation etc.) their Lordships held that there will be no double jeopardy if for the 'same transaction, act or occurrence' there is an order of confiscation or award of penalty under the relevant provisions of the Act and also infraction of any of the provisions of any section under Chapter XVI of the Act or any other law. In respect of Section 117 of the Act (the section under which the petitioners were made liable to pay penalty) their Lordships held that in a proper case of infraction of any of the provisions of the Act where no express penalty has been provided for such act or omission, a penalty upto Rs. 1000/- can be imposed under this section. Thus their Lordships held that for the same act which constitutes an offence under Chapter XIV and at the same time constitutes a contravention, abetment of contravention, failure to perform any duty prescribed under the Act and non-compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether petitioners either directly or indirectly caused such obstruction to the customs officers in discharging their duties. 8. In this regard it will be profitable to go through some portions of the writ application with regard to the admitted case of both the petitioners. In the writ petitions they admitted that on 7th April, 1976 the Assistant Collector of Customs and Central Excise forwarded the copy of his order on that day which was addressed to the Master of the Vessel M.V. JAG DARSHAN stating therein that there was contravention of the provisions under Section 115 of the Act since it was used as a means of conveyance and for concealing certain contraband goods of foreign origin and that the vessel was being rummaged by the customs officers on the same day upto 4 p.m. and certain goods of foreign origin were recovered. This notice, copy of which was admittedly received by the petitioners, has been annexed to the writ petition as Annexure-2. The notice by the Assistant Collector of Customs and Central Excise (Annexure-2) clearly indicates that rummaging operation had commenced on 7-4-1976 upto 4 p.m. and goods of foreign origin worth Rs. 40,000/- had by then been recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that this shifting was at the instance of both the petitioners and this was done when both the petitioners had been intimated that the vessel had already been subjected to a rummaging operation and smuggled articles had already been recovered and that the rummaging operation was still to continue. The two petitioners could have possibly thrown the entire burden on the Master of the vessel. But in their reply to show-cause both of them admitted that for convenient placing of the vessel in the appropriate berths, it was within their competency, as the port authorities, to shift the vessel. They have assumed this responsibility by admitting that they were the persons competent to direct the shifting. But the crux of the point, that is, the bona fides of the two petitioners in shifting the vessel can hardly be accepted. So far as mere placing of the vessel M.V. JAG DARSHAN for the purpose of double banking with the vessel M.V. OGDON AMAZON at the Iron Ore Berth was concerned, the action could have been said to be a bona fide one, but shifting the vessel from that berth to a place deep into the sea which was accessible only by a sailing vessel amounted to obstruction to the rummag ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
