9911796707
TMI Blog1966 (7) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining delivery of such consignments will be required to satisfy the Customs Authorities that the discharge is for bonafide reasons. For this purpose, they will have to produce a certificate from the Master of vessel that for specified reasons the Dunnage Wood is unusable. The consignments after discharge will be required to be given distinctive marking by sprinkling colour or Paint on the wood at the expense of the Steamer Agents in order that the identity of the full quantity can be established at the time of clearance. This comes into force immediately." Respondent No. 4, Scindia Steam Navigation Co. Ltd., is a Steamer Agent within the meaning of the notification. 3.The petitioner says that, in the month of October 1961, he entered into a contract with respondent No. 4, Scindia Steam Navigation Co. Ltd. for purchase of unserviceable dunnage wood carried by various ships belonging to the respondent company, inter alia, on terms hereinafter appearing: Our terms and conditions of sale of unserviceable dunnage wood annexed to the tender submitted by you shall form the basis of this contract, unless they conflict with the terms set out in the attached list of accepted rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete Bill of Entry within four working days from the date of complete discharge of the goods, failing which we agree to pay on demand duty and penalty that may be awarded after consideration of any explanation we may offer." The petitioner says that the Customs Authorities accepted the Guarantee and permitted respondent No. 4 company to obtain discharge of the said 15 tons of wood from the said steamer into a cargo boat under the supervision of a Customs Officer and to land the goods onto 'G' Berth, King George's Dock, there to be kept under day and night Customs surveillance, until appraisement of customs duty. The respondent No. 4 wrote a letter to S. K. Mohammed and Sons, authorised customs clearing agents, on October 5, 1961, asking them to fill up the necessary customs papers for clearance of 15 tons of dunnage wood sold to the petitioner. The landing of the goods, the petitioner says, was commenced on October 6, 1961 and was completed on October 9, 1961. The boat employed in the unloading was boat No. C-13729 owned by one Girish Munni Chauduri, and was manned by a crew consisting, amongst others, of one Satu Manjhi. The goods were loaded in the boat and unloaded therefro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Boat Note from alongside the vessel s.s. Jalakirti under the instruction of Shri O. P. Singh of M/s. Narayan Timber Works. This discloses an offence under section 76 of the Sea Customs Act attracting penal provision of section 167(29) ibid. Since M/s. Narayan Timber Works are the purchaser of the Dunnage Wood in question and were instrumental in landing the excess quantity, in contravention of the provisions of section 19 of the Sea Customs Act, they are also deemed to be the persons concerned within the meaning of section 167(8) ibid and they are liable to penal action under Section 167(3), and (8) of the said Act. M/s Narayan Timber Works are, therefore, directed to show cause and explain in writing within 7 days hereof why penal action should not be taken against them under section 167(3), (8) and (29) of the Sea Customs Act. 6.The action against the petitioner was stated on the statements of certain Manjhi and Dandees (boat-men), to which reference will hereinafter be made. In his reply, dated November 2, 1961, the petitioner denied the charges and his knowledge of the activities, as alleged, of O. P. Singh. He further stated as follows :- "We deny the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the said seized wood may be released to them. I also impose a personal penalty of Rs. 4000 (Rupees four thousand) only under section 167(8) of the Sea Customs Act and of Rs. 1000 (Rupees one thousand) only under section 167(3) of the Sea Customs Act on the Timber Works. The personal penalty would be paid within a week hereof." 10.Aggrieved by the order, the petitioner moved this Court, under Article 226 of the Constitution, praying for a writ of Certiorari quashing the impugned order and for a writ of Mandamus directing the respondents to cancel and or withdraw the said order and to release the seized goods. He obtained this Rule. 11.The grounds on which the petitioner disputes the validity of the impugned order are : (a) that the petitioner was not instrumental in the importation of the excess dunnage wood and was not the person concerned in the importation thereof. (b) that the petitioner was found guilty and penalised without the foundation of any evidence against him. (c) that the principles of natural justice were violated in finding the petitioner guilty of the charges, in that he was not given opportunity to produce his evidence. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of gratification or used any form of intimidation or coercion for obtaining the statements as falsely alleged therein or at all. I say that the information regarding the off-loading of an excess quantity of dunnage wood from s. s. Jalakirti by Messrs. Narayan Timber Works was received by me. Then I and Shri S. N. Gupta another Intelligence Officer went to the spot to collect information and to ascertain the true position and whatever statements were made by the Manjhi and Dandees of the cargo boat were recorded by me and the other officer in normal course of our official duties. I took up and carried on the investigation of the case as a part of my normal duty without any question of getting any reward. As a matter of fact the Manjhi and Dandees voluntarily stated the bare facts which were recorded. Further, the Manjhi of the Cargo boat came to the Customs House of his own accord on 2nd December, 1961 and 18th December, 1961 and voluntarily made statements, some portions of the contents of which were then unknown to me or the other Customs Officer. The said Manjhi stated on the contrary that the petitioner has been adopting dubious tactics and bringing pressure upon him through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on another blank piece of paper, and that paper was not converted into the other statement of Satu Manjhi. The second statement of Satu Manjhi, purporting to bear the date October 13, 1961, on which the petitioner relied, is annexure 'P' to the petition and reads as follows :- "As per your directions I got my boat attached with the steamship Jalakirti at a shed K. G. D. on the 6th October, 1961. After loading you gave me G. B. Note and I got the boat berthed. But due to rain your coolie would not unload the same. It was unloaded on the 10th October, by 12p.m. Then I was released for the next booking. Oh the 11th October, 1961 one Kushi Babu came and asked me to load the goods from Steel Line. All of a sudden a customs officer came and took away the licence and began to abuse and enquired angrily 'whose goods are? From which ship you have loaded etc.'. I explained everything as stated above. Then again next day he came and asked me to follow him in his car and he took me to his customs office on 12th October. In the car he abused me and asked me to give in writing that your Babu had already taken four lorries of load from the goods already loaded. He further threatened if you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presence of any person at the time of the recording of the alleged statement. There is nothing in the document that indicates that the statement had been accepted as true and correct by the person whose statement it purports to be." (b) In his evidence before the respondent No. 1 adjudicator Satu Manjhi said that the paper containing his purported statement was blank when he put his thumb impression. He further said that no statement was forcibly taken from him by the Customs Officers and such statements did not contain a falsehood. He also stated in cross-examination :- 'I did not put the thumb impression except on a blank sheet and at your instance. None was present at the time. I know only one Chura Chowdhury. I do not know Girish Munni Chowdhury. I went to you for my wages. The thumb impression was taken at about 6 p.m. Chura Chowdhury is the nephew of Shiva Pujan Chowdhury, who are the boat owners. Chura Chowdhury had not taken me to you with him'. 16.On the above materials he held that the second statement of Satu Manjhi was a piece of forgery and that it was significant that the above statement although purportedly taken on October 13, 1961 was not disclosed until De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated 6-11-1961 the following : "This confusion arose mainly due to the fact that the Master of the vessel, Captain M. M. Kothswala, was absent on leave from ship from 1-9-1961 to 9-9-1961 and rejoined on 10-9-1961 and on the same date a new Chief Officer took over from Mr. Kambjoj who was relieved from the vessel that date. There is good gap by any standards between 10-9-1961 and 13-10-1961 for any Master to be acquainted with the correct state of affairs on board his ship." (d) "I am prepared to concede that the unnamed Customs Officer whom the Timber Works desire to cross-examine would depose nothing save that dunnage wood, approximately only 15 tons in weight, was permitted to be and actually discharged under his supervision, and the further under his knowledge no other dunnage wood landed Ex the aforesaid Jalakirti. His deposition, however, would not cast doubts on the veracity of the evidence of Satu Manjhi, Dandees etc. I see no point, therefore, in the request for the examination or cross-examination of the aforesaid unnamed Customs Officer." On the above reasoning he came to the conclusion :- "In the present case the statement of Satu Manjhi and other boatmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of cross-examining the witness examined by that party and that no materials should be relied on against him without his being given the opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. Explaining the above decision, their Lordships of the Supreme Court further observed in the case of State of Mysore v. Shivabasappa (AI.R. 1963 S.C. 375): "What was actually under consideration was the procedure to be followed by quasi-judicial bodies in holding enquiries and the decision was that they were bound to adopt the procedure followed by Courts and that it was only necessary that rules of natural justice should be observed. Discussing next what those rules required it was observed that the person against whom a charge is made should know the evidence which is given against him, so that he may be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will, in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up against the petitioner, even before he heard the evidence indicated by the petitioner in his letter dated January 8, 1962. His finding that the second statement of Satu Manjhi, on which, the petitioner relied, was a piece of forgery, without giving to the petitioner an opportunity of showing that it was not quasi judicial fairplay. Further, he too much anticipated what the petitioner would succeed in extracting of the Customs Officers, whom the petitioner had asked for being called. 21.The introduction of the statements of the Master of the ship, who was not examined, and the condemnation thereof was worthless and unworthy of reliance was also improper and one in much too off hand a manner. 22.I therefore hold that petitioner succeeds in establishing that the enquiry was not fairly conducted. 23.It was further contended on behalf of the petitioner that there was nothing to show that the petitioner had caused or was instrumental in the unlawful landing of excess quantity of dunnage wood, if there was any, or the removal of a part thereof in a lorry. It was also contended that if O.P. Singh, their agent, had indulged, in his own account, in the unlawful landing of dunnage wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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