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TMI Blog1992 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter : Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be Oral." 3. It is argued that the proviso enabling the authority to dispense with the issue of a written notice and the making of a written representation at the request of the person concerned and to give oral notice and accept oral representation is unconstitutional as it violates Articles 14, 21 and 300A of the Constitution of India. It is urged that the proviso is vague, uncertain, unfair, unjust and arbitrary inasmuch as it does not prescribe any guidelines for the invocation thereof. It is argued that the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or imposing any penalty on him is made under the Chapter. Chapter XIV, which comprises of Sections 111 to 127, deals with confiscation of goods and conveyances and imposition of penalties. Section 111 describes the goods brought from a place outside India, which are liable for confiscation. Section 112 of the Act provides of imposition of penalty for improper importation of goods etc. Section 115 of the Act relates to confiscation of goods attempted to be improperly exported. Section 114 of the Act relates to penalty for attempt to export goods improperly. Section 115 of the Act provides for confiscation of conveyances while Sections 116 and 117 of the Act deal with penalties for not accounting for goods and for contravention of any provision of the Act. Sections 118 to 121 of the Act deal with confiscation of packages and their contents, goods used for concealing smuggled goods, smuggled goods in spite of change in form etc., and sale of smuggled goods. Section 122 of the Act prescribes the adjudicating authorities with reference to confiscation and penalty. Section 123 of the Act deals with burden of proof in certain cases. Section 125 of the Act provides for an option to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that different officials may be handling different situations, some of whom may be junior officials who may not know all the provisions of the Act, Rules and Notifications. No such presumption can be made with reference to statutory authorities and on that ground no provision of the statute can be invalidated. The contention that the cases to which the proviso is applicable are not specified and therefore, the proviso is vague is also not acceptable. The proviso will apply to all cases in which order of confiscation of any goods or imposition of penalty is proposed to be made irrespective of the value of the goods. 7. Learned Counsel strenuously contends that a provision for oral notice is inherently bad and unconstitutional as according to him, oral communication is no communication at all. Reference is made to the meaning of the word 'informing' in New Webster's Dictionary. According to learned Counsel, 'informing' means 'to communicate' and any communication which is not in writing is not a communication at all. Reliance is placed on the rulings of the Supreme Court under Article 22(5) of the Constitution of India. In the said Article, it is provided that when any perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can read, if he is a literate person." 9. That judgment has been followed in Hadibandhu Das v. District Magistrate, Cuttack (A.I.R. 1969 S.C. 43), Raziya v. Union of India, (AIR. 1980 S.C. 1751), Nainmal Pertab Mal Shah v. Union of India (A.I.R. 1980 S.C. 2129) and Surjeet Singh v. Union of India (A.I.R. 1981 S.C. 1143). In all the above cases, the grounds of detention were in a language which could not be understood by the detenu and it was, therefore, held that sufficient opportunity was not given to them as contemplated by Article 22(5) of the Constitution of India. The rulings will have no hearing on the question whether a provision in a statute enabling the person concerned to opt for oral notice and oral representation is unconstitutional. If the oral notice is in a language which can be understood by the person concerned and if the said notice satisfies the requirements of the law, in that it informs the person concerned of all the grounds for the proposed order, then it is sufficient compliance with the law and it gives a reasonable and fair opportunity to the person concerned. It cannot be said in such cases that he is deprived of an opportunity to know the grounds pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing the mode of such notice. The principle that a fundamental right cannot be waived by a person has no applicability to cases falling under the proviso. 14. Reliance is placed by the learned counsel on the ruling in Basheshar Nath v. Commissioner of Income-tax, Delhi Rajasthan (A.I.R. 1959 S.C. 149), in which it was held that it was not open to a person to waive his fundamental right conferred by part III of the Constitution of India. My attention is drawn to similar observations found in the judgment in Olga Tellis v. Bombay Municipal Corporation (A.I.R. 1986 S.C. 180). It was held in that case that there can be no estoppel against the Constitution the provisions of which are conceived in public interest and intended to serve a public purpose. Reference was made in that case to the judgment in "Basheshar Nath" (A.I.R. 1959 S.C. 149). In "Olga Tellis" (A.I.R. 1986 S.C. 180), the question was whether Section 314 of the Bombay Municipal Corporation Act, which prescribed a procedure for removal of encroachment of footpaths and pavements was violative of Article 21 of the Constitution. The Court answered the question in the negative and upheld the validity of the section. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid. 45. It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (Hear the other side) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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