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TMI Blog1959 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... and March 1957 the 1st petitioner was through brokers attempting to sell of the sovereigns and had sold 76 sovereigns in the first week of April 1957. On April 5th, 1957 with intent to sell 1124 sovereigns the 1st petitioner was travelling by the motor car No. BML 8268 and while he was so travelling with them certain Customs Officers stopped the car and 1124 sovereigns were recovered from the 1st petitioner and seized by the officers of the Central Excise Department. The remaining 720 sovereigns were then lying in possession of the 3rd petitioner, the adoptive father of the 1st petitioner. On that day these 720 sovereigns were also seized by the Officers of the Central Excise Department. The 1st petitioner claims to be the bona fide purchaser for value of all these sovereigns seized by the Department. The 1st petitioner was served with a show cause notice dated June 28, 1958 and thereby informed that it appeared that 1124 and 720 gold sovereigns had been imported without permission as required under notifications dated August 25, 1948 and February 27, 1951 mentioned in the notice and that the 1st petitioner was concerned in the offence mentioned in Section 167(8) of the Sea Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, 1958 finally intimated to the petitioners' attorneys to give their reply within ten days from the date of the receipt of the letter and that in defaults the case would be decided on the basis of evidence on record. 2.As the petitioners had not led any further evidence in support of their contentions after receipt by them of these copies of the 14 statements the 1st respondent made the impunged order dated November 25, 1958 for confiscation of the sovereigns and the motor car. The only two grounds on which the petitioners have contended before me that the order dated November 25, 1958 is illegal and not binding are to be found in sub-paras (a) and (b) of para 20 of the petition. Shortly stated the first contention of the petitioners is that as regards 14 statements recorded by the investigating officers in the absence of the petitioners the same could not be the basis of the impugned order the petitioners case is that it is abundently clear from the contents of the impugned order that the 1st respondent has based his decision on the statements given by 14 persons to be investigating officers in the absence of the petitioners. It is contended that before all quasi-judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.In reply to these contentions Mr. Advani for the respondent has contended that each of the statements were taken from parties who were stated by the 1st petitioner himself as the parties who would prove the 1st petitioner's case that he was the bona fide purchaser for value without notice of these sovereigns. When the 1st petitioner indicated that Umedchand M. Shah was the seller of these sovereigns and produced documents being memos tendered to the 1st petitioner by Umedchand M. Shah the investigating officers contacted Umedchand M. Shah. The result of the statements made by Umedchand M. Shah was that the petitioners had got Umedchand M. Shah to fabricate these documents indicating sale of sovereigns by Umedchand M. Shah to the first petitioner, and that there was no sale of any kind by Umedchand M. Shah to the 1st petitioner of these sovereigns. When the petitioners indicated Hariram and Murlidhar as parties who had sold these very sovereigns to Umedchand, these parties were contacted and on the statements given by them it was further ascertained that the case of the 1st petitioner that these parties had sold these sovereigns to Umedchand M. Shah was altogether false. Tatke wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners and the 1st respondent that the petitioners took up the attitude that it was for the 1st respondent himself to call these persons as witnesses for the purpose of proving the case against the petitioners and that when these persons in the presence of the petitioners gave evidence of the nature already recorded by the investigating officers the same could be taken on record and that thereafter the petitioners should have opportunity to cross-examine those persons as if witnesses produced on behalf of the prosecution the petitioner's case appears to be that this was the only method which would satisfy and comply with principles of natural justice. The 1st respondent was unwilling to comply with such a request of the petitioners. He however was throughout willing that these witnesses could be brought before him at the instance of the petitioners to prove the untruth of the statements given by them. That indicates the narrow question which has to be decided in this case. In support of his contentions Mr. Joshi for the petitioners has relied upon the observations made by the Supreme Court in the case of Union of India v. T.R. Verma - A.I.R. 1957 S.C. 882 at 885. In that case the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t non-observance of principles of natural justice arises in Court. It is therefore necessary to find in this case as to whether the evidence which is Referred to in the decision of the 1st respondent, viz. the statements made by different persons as above mentioned to the investigating officers was "evidence of the opponent" in this case. 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. Upto the stage that the investigating officers called for information from these persons there was no question that these were not witnesses of or for "the opponent", viz. the department. They were going to be if at all witnesses of defence, viz. petitioners in this case. They were however found to be so useless when they gave their information and statements that the petitioners did not take any courage to call them as their witnesses. I would not describe the persons who gave these statements as "witnesses for the Department". 7. The statements given by these parties however were so destructive of the case of the petitioners that these statements have become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Viscount Haldane L. C. as cited in the Supreme Court decision as regards the principles of natural justice to be observed by tribunals are relevant to be cited here :— "My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question Referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with sense of responsibility, of a tribunal whose duty it is to meet out justice. But it does not follow that the procedure of every such tribunal must be the same". 10.The observations made by Lord Shaw also were quoted in the decision of the Supreme Court in the following manner: "Lord Shaw in his speech made the following observations which are very opposite to the facts and circumstances of this case. "The judgments of the majority of the Court below appear to me, if I may say so with respect to be dominated by the idea that the analogy of judicial methods or procedure should apply to departmental action. Judicial methods may, in many points of administration, be entirely unsuitable, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State of Bombay - 1983 (13) E.L.T. 1284 (T.C.) = 1953 S. C. R. 713. The case of Mahadev Ganesh arose under the Sea Customs Act and the plaintiff in that suit contested the finding made against him by the Collector of Customs on the ground that the Sarkarkun who started investigation accepted false evidence behind the plaintiff's back and relying on this evidence the Collector passed the order complained against. Apparently all that was relied upon by the Collector for basing his finding in that case was the statements recorded by the Sarkarkun. The Sarkarkun had also in connection with those statements recorded what the plaintiff Mahadev had to say so that finding should be made in favour of the plaintiff. Chief Justice Macleod referred to the case of Local Government v. Arlidge and hold that it was obvious from the record in the case before him that the plaintiff had ample opportunity to correct or contradict any statement prejudicial to his view which had been recorded. He also stated that if it had appeared to him in any way that there had been real injustice in the case he would not have hesitated to entertain the plaintiff's claim. He further observed :- "But as far as I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable for cross-examination by the petitioners? 16.From the scheme of the Sea Customs Act this does not seem to be the intent and purpose of the enquiry held under the provisions of Chapter XVII of the Act. In that connection one may rely upon the decisions in the case of Mahadev Ganesh and Maqbool Hussein referred to above. In his connection the provisions of the new Section 178A and Section 181 of the Act are relevant. Under Section 178A in the case of certain goods mentioned in that section if seizure is made "in the reasonable belief that the same are smuggled", burden is cast on the citizen to prove that the same are not smuggled goods. It is left to the subjective satisfaction of the adjudicating officer to decide whether the goods had been seized in the reasonable belief that they were smuggled goods. The secret information available to him in that connection is not directed to be divulged to the citizen concerned. In a case covered by Section 178A obviously evidence to be produced is evidence of the person charged and the burden is cast on him to produce all evidence in defence. In the event of his not producing sufficient evidence to discharge the burden cast on him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings in question the petitioners had not received a fair hearing and whether the 1st respondent had proceeded to decide the case without giving to the petitioners opportunity of adequately presenting the case that they wanted to make. In my view having regard to the facts as already mentioned by me the 1st respondent proceeded with this case as regards the statements considered by him in a manner which does not in any way violate principles of natural justice. He furnished the copies of those statements to the petitioners and repeatedly informed them that he was willing to give to them all opportunity to examine all these persons so that every statements made by them may be proved to be untrue. The petitioners have suffered in this case by not lending evidence of any witness and by their own conduct. No injustice appears to me to have been caused to the petitioners on the first ground mentioned in para 20(a) of the petition and that ground must fail. 19.In support of his second contention Mr. Joshi has relied upon the contents of the decision dated November 25, 1958 as also the contents of the show cause notice served on the petitioners. The basis for the charge of cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 178A and a presumption was raised by the 1st respondent as mentioned in that section in the proceedings against the petitioners. In that connection in his affidavit in reply dated June 1st, 1959 para 28 the 1st respondent has made the following categorical statements :— "I deny that I have proceeded on the footing that the burden of proving that the said sovereigns were not smuggled was on the first petitioner or that I have relied upon Section 178A of the Sea Customs Act. I deny that the impugned order was passed on the basis that the 1st petitioner must prove that the said gold sovereigns were not smuggled goods". Now, these are emphatical categorical statements made on an extremely relevant matter. So far as the present proceedings go it is the 1st respondent's case that he has not made any findings on the footing that the burden was on the petitioners. The 1st respondent has not raised any presumption as envisaged in Section 178A against the petitioners. 21.Mr. Advani has not mentioned to me any reason why I should not accept these statements made on oath as correct. Even so he contends that I should hold that the sovereigns in question are covered by the words in s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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