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TMI Blog1997 (3) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... hter, the wife of the 1st petitioner and accordingly, he had purchased one Sony Colour T.V. 29" made in Japan in the name of the 1st petitioner from an Air Passenger Sellaiyan Karunanidhi on 10-11-1995 for Rs. 65,000/-. The 1st petitioner wanted to install that T.V. Set at his native place at Rajasthan and booked the same to Ahmedabad in the name of his wife Neelam through a courier service in the name and style of "Tirupati Air Cargo" between Madras and Ahmedabad having his office at N.S.C. Bose Road Cross, Madras-3. The 2nd petitioner is staying with his father and doing business in General Marchandise at Ahmedabad. The 1st petitioner asked the 2nd petitioner to get released the T.V. set from the Courier and keep it in his house so as to enable the 1st petitioner to carry the same to his native village during the next month. The baggage receipt No. 016809, dated 1-11-1995 and an affidavit executed by the said Air Passenger S. Karunanidhi on 10-11-1995 before Notary Public have been collected by the petitioner. 3.The said air parcel was intercepted by some customs officers from the courier's office at Ahmedabad on 15-11-1995. They recorded the statement of the owner of the couri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply and after giving personal hearing and considering the arguments in his written reply, the order has been passed. He has further submitted that as the cause of action has arisen at Ahmedabad, the question of jurisdiction at Madras does not arise. He has also stated that the 1st petitioner was nowhere in picture till the order was passed. Since there were every reason to believe that the subject goods are smuggled, the said goods were confiscated in the adjudication proceeding. He has pointed out that since the petitioners have got alternative remedy, the present writ petition which has been filed without exhausting the said remedy is liable to be dismissed. 6.Heard Mr. M. Ranka, learned Counsel appearing on behalf of the petitioners and Mr. K. Ilias Ali, learned Additional Central Government Standing Counsel on behalf of the respondents. 7.Mr. Ranka, learned Counsel raised number of contentions in this writ petition. He has contended that the impugned order dated 31-1-1996 passed by the 2nd respondent is absolutely void and without jurisdiction. Since the 2nd respondent has usurped jurisdiction upon wrong assumption of facts and conducted the proceedings in a manner contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is practically impossible for the Customs Officers present at Airport to ascertain the authenticity of the address mentioned by each and every air passenger in their respective baggage receipt. Since the baggage receipt produced before the 2nd respondent pertains to an old and used T.V. under T.R. Concession, while the 29" Sony Colour T.V. seized by the Customs Officers is a brand new piece in original packed condition, the said baggage receipt did not pertain to the T.V. in question. 10.Further, as regards the claim of the petitioner that the goods seized by the Customs Officer are not covered under Section 123 of the Act, learned Counsel for the respondents has relied on the decision in Jain Enterprises v. Collector of Customs [1986 (25) E.L.T. 811] and submitted that the provisions of Section 123 of the Act is rightly applicable. He has submitted that it is beyond doubt that the goods under seizure i.e. 29" colour T.V. and other miscellaneous goods have been acquired/possessed in total disregard to the provisions of Section 11 of the Act, Import Control Order, 1955 and Foreign Trade (Development Regulation) Act, 1992 and as such, they are liable for confiscation. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has the power to issue directions order or writs to any Government, authority or person provided the cause of action for the issuance of such a rule under Art. 226 (1A) wholly or in part, arises, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. What then is the cause of action that is referred to in this sub-clause of Art. 226 of the Constitution? "Cause of Action" has always been understood as referrable to the bundle of facts in a legal proceeding and if a limb of that bundle of facts is available, seen or discernible in one particular place which is a seat of the High Court, then such High Court has the power to exercise all the powers conferred on it under Art. 226 (1A) notwithstanding the fact that the authority against whom the ultimate rule has to be issued and whose act has created a cause of action as a whole or in part, is situate outside its territorial limits." 14.The next decision on which the learned Counsel placed reliance is in M/s. The Karur Vysya Bank Ltd., Coimbatore v. Ramachandra C. Oza and Others (AIR 1974 Madras 209) and he invited my attention to paragraphs 9, 10 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rances. In these circumstances, it was held that the entire cause of action arose in Rajasthan and the Calcutta High Court would not exercise its jurisdiction under Article 226 merely on the ground that the notices of acquisition had been served on the owners in West Bengal. In regard to the third case viz., East India Commercial Company supra, it is enough to observe that the same related to a point of time prior to the 15th and 42nd constitutional amendments whereby Clauses (1A) and (2) respectively were introduced. The observations contained in this case will, therefore, have no application to the facts of the present case. In the8. present case, it will have to be noticed that the petitioners are carrying on business in Bombay. Under the relevant Export Policy, the Petitioners were engaged in the Business of Exporting readymade garments to U.S.A. This business of export was being carried on in Bombay. In view of the provisions of Article 226(2), the short question that will have to be decided is whether the cause of action to file the present petition either wholly or in part arises within the territorial jurisdiction of this court. It is true that the impugned order has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercise jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that atleast a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition. 6. It is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh [ILR (1889) 16 Col 98, 102 : 15 1A 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, the jurisdiction of a High Court can be invoked if the cause of action arises wholly or in part, within the territorial jurisdiction of the High Court. In the instant case, the television set was purchased by the 1st petitioner at Madras and despatched to Ahmedabad from Madras. The television set was meant for personal use of the 1st petitioner who is permanently staying at Madras and hence, this court has jurisdiction to entertain the writ petition. He has also submitted that the jurisdiction of the High Court under Article 226 of the Constitution of India is much wider because the High Courts are required to exercise the jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal rights. 19.On the other hand, the Additional Central Government Standing Counsel for the respondents submitted that the present writ petition is not maintainable on the ground of want of territorial jurisdiction and has placed reliance on the following decisions : In Union of India and Others v. M/s. Oswal Woollen Mills Ltd. and Others [1984 (18) E.L.T. 284 (S.C.), AIR 1984 (S.C.) 1264], the Supreme Court in paragraph 2 has observed thus : "M/s. Oswal Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows :- "The expression 'Cause of action' is tersely defined in Mulla's Code of Civil Procedure : "The cause of action" means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court." In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 5(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta, i.e., within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan, i.e., within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226 (2) of the Constitution must depend upon the nature of the impugned order g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi, that these would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi, of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the more fact that it sent fax message from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that part of the cause of action arose within the jurisdiction of the Calcutta High Court." 22.Placing reliance on these decisions, learned counsel for the respondents submitted that this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition to pay the penalty to file an appeal, they have approached this court by filing this writ petition. His last submission was that this writ petition was entertained by this Court and Rule Nisi has been issue and now it may not be proper to reject this writ petition on the ground of alternative remedy being available to the petitioners. 26.In this connection, he has placed reliance on the following decisions : 1. Shew Bhagwan Goanka v. The Collector of Customs and Another (AIR 1971 Cal. 112) 2. M.G. Abrol, Additional Collector of Customs, Bombay and Another v. M/s. Shantilal Chhotelal and Co. Ors. (AIR 1966 S.C. 197); 3. Shri Madhav Mills Private Limited v. Union of India and Others [1985 (22) E.L.T. 747 (Pat.)] 4. Durlabhkumar v. The District Judge, Indore and Another (AIR 1973 Map. 175); and 5. M.R.F. Limited v. Union of India and Others [1985 (22) E.L.T. 5 (Bom.)]. 27.In Shew Bhagwan Goenka's case (supra) learned Counsel placed reliance on paragraph 30 which read as follows :- "The next question to be considered is whether the existence of an alternative remedy is a bar to the petitioners right to relief in a writ petition. Section 128 of the Act provides for appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33A of the Act had not be expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income Tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits". In this view of the matter, it would not be right to reject this petition at this stage". 29.In M.G. Abrol, Additional Collector of Customs, Bombay and Another v. M/s. Shanthilal Chhotelal and Co. (supra) in paragraph 15, the Supreme Court has held as follows :- "Lastly it was argued that the High Court should not have exercised its jurisdiction under Art. 226 of the Constitution, the respondents had an effective remedy by way of appeal to higher Customs authorities. But the High Court rightly pointed out that the respondents had to effective remedy, and they could not file an appeal without depositing as a condition precedent the amount of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads thus :- "In Titaghur Paper Mills Co. Ltd. v. State of Orissa (A.I.R. SC. 603) A.P. Sen Exs. Venkataramiah and R.B. Misra, JJ held that where the statute itself provided the petitioners with an officacious alternative remedy by way of an appeal to the prescribed authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now for us to repeat this admonition is indeed a matter of tragic concern to us, Article 226 is not meant to short circuit or circumvent statutory procedure. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require if that recourse may be had to Article 226 of the Constitution. But, then the Court must have good and sufficient reason to by pass the alternative rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the petitioner in the Writ Petition and it is open for him to raise the same before the Appellate Tribunal." 35.Placing reliance on these decisions, learned counsel for the respondents submitted that this Writ Petition should be dismissed on the ground that the petitioners have got an alternative remedy of appeal and without exhausting the said remedy, they have approached this Court by filing this Writ Petition. 36.It is true that the petitioners have got an alternative remedy of appeal and normally this Court will not entertain a Writ Petition when an alternative remedy is available to the parties. But the learned counsel for the petitioners submitted that the order passed by the second respondent as far as the 1st petitioner is concerned is ab initio void. He has not issued with show cause notice and no enquiry was held against him. Hence he cannot file an appeal against the said order. Further, if at all the appeal has to be filed the petitioners have to file the said appeal at Ahmedabad. When I have held that this Court has got territorial jurisdiction to entertain this Writ Petition it may not be proper at this stage to dismiss the Writ Petition on this ground. Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther conclusion that the petitioner must have unlawfully imported the watches from across the customs barrier and thus come to possess the same. The burden of proving unlawful importation (excepting in cases under S. 178A of the Sea Customs Act and this case is not one such) is upon the Customs authorities. This is the view which was expressed by the Supreme Court in Ambalal v. Union of India (AIR 1961 SC 264) and followed by Division Bench of this Court in Mangala Prasad v. V.J. Manerikar (68 Cal. WN 383). The question, therefore, is whether the Customs authorities failed to discharge this onus. Mr. G.P.9. Kar, learned Advocate for the respondents, contended that the Customs authorities had disclosed to the petitioner materials on which they disbelieved the explanation given by the petitioner, namely, that the petitioner had locally purchased some of the watches and received others for repairs from different persons and thereafter the onus shifted with the petitioner to prove that the wrist watches had been lawfully imported. I am unable to upheld this argument. If the Customs authorities had led any prima facie evidence of illicit importation of the watches, I might have consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Public Prosecutor, Madras v. M.L. Modi AIR 1961 Mad. 368, what happened was as follows : The petitioner H.L. Modi disembarked at Meenambakkam Aerodrome from an aeroplane which flew from Bombay to Madras. He was interrogated by Customs Officials and his trunk was searched. With the result that underneath certain articles of clothing a tin box was found containing 247 wrist watches of Record manufacture, most of them being new. He was charge-sheeted under Section 167(8) of the Sea Customs Act and was convicted. It was stated on behalf of the Customs authorities that the petitioner had made a statement admitting the broad facts, which was Ex. P.2 in that case. This was a revision to the Madras High Court which was allowed, Anantanarayanan, J. said as follows : "It is claimed by the learned Public Prosecutor that in his statement, Ex. P 2 the revision petitioner admitted that he was aware that there were watches upon which duty had not been paid. First of all, I am not all certain how far Ex. P 2 could be safely accepted and acted upon. Secondly, even if it is to be acted upon such an admission clearly cannot form the basis for any conviction of the revision petitioner. The prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent man's estimate as to the probabilities of the case. Since it is exceedingly difficult for the prosecution to prove the facts which are especially within the knowledge of the accused, it is not obliged to prove them as a part of its primary burden. On the principle underlyings, 106 of the Evidence Act, the burden to establish the facts within special knowledge of a person lies on him and if he fails to establish the facts within special knowledge of a person lies on him and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result would prove him guilty. The first part of the entry in the third column of clause of S.167 of the Sea Customs Act regarding the penalty of confiscation of the goods casts less rigorous burden on the prosecution as the order operate intrem and is enforced against the goods only. (841 D: 841 D: E.F.). (ii) Although no direct evidence of the illicit importation of goods was adduced by the Department the fact that the goods were of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portation from any foreign country, nor during any attempt of the petitioners to bring the subject goods within Indian Customs Water. The said goods could not have been confiscated since it is not covered by either Section 11B or 123 of the Customs Act. Further, the 1st petitioner has paid the price and purchased the goods. The address on the baggage receipt is not written by any of the petitioners, but, the same has been written by the Air Passenger and counter-signed by the Baggage Inspector as well as the Superintendent at the Trivandrum Airport. The second Respondent ought to have made enquiries with the concerned Officers at the Trivandrum Airport and not with the Assistant Commissioner, Customs, Trichy. According to me, the materials collected by the Second respondent were not sufficient to connect the contravention alleged. The goods are seized long after they have been actually imported or brought as personal baggage by bona fide passengers and there being no direct evidence to identify such goods either having been imported without proper licence or of illicit origin, the seizure cannot be justified and the penalty imposed is beyond the jurisdiction of the Customs Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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