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TMI Blog1962 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances leading to the order of confiscation and imposition of the fine are hereinafter briefly recounted. The petitioner firm allege that they carry on business in gold and silver and in that business locally purchase old gold ornaments, gold mohurs and gold bars, in retail and then sell the same in Calcutta and other places at a profit. On August 13, 1957, the firm sent out one Manindra Nath Nandy, one of their employees, with about 65 tolas of gold with instruction to him to carry the same to Calcutta. The said Manindra Nath Nandy on his way to Calcutta was apprehended by a Land Customs Officer at Manickchak Ghat, on the suspicion that he was carrying smuggled gold. On searching his person the gold that he was carrying was recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect : Whereas there is reason to believe that the gold mentioned"(i) below have been imported from Pakistan into India on or about 13th August 1957 (and were being carried to Calcutta by Sri Manindra Nath Nandy as per his order) through Manickchakghat without (i) a valid permit of land customs as required under section 5 of the Land Customs Act, 1924. ***** ***** (iv) Without a valid permit granted by the Reserve Bank of India in contravention of G. I. M. F. Notification No. 12(ii)F1/48 dated 25th August, 1948 read with the Notification No. 12(ii)F1/51 dated 27th February, 1957 issued under section 8(1) of the Foreign Exchange Regulation Act, 1947, an offence has been committed under (i) Sec. 5 of the Land Customs Act, 1924. (ii) Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er refinement on assaying but the samples selected by Customs were found to be gold of the refinement as high as 990.4 to 998.0 per mille. 6.On May 22, 1959, the petitioner firm was given a personal hearing by the Collector of Land Customs. At that hearing the petitioner firm appears to have taken the objection that inasmuch as the sample selected by the petitioner firm contained gold of lower refinement, it should be held that the gold bars had not been unlawfully imported but were made by melting old ornaments locally purchased. On the objection taken by the petitioner firm, there were other samples drawn on July 25, 1959 and those samples on assaying were found to contain gold of the refinement of 997.8 to 998.3 per mille, the ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken by Mr. Prafulla Kumar Roy, learned Advocate for the respondent. Mr. Roy pointed out that the order by the Customs Collector had been made on December 8, 1959 and was despatched to the petitioner firm on December 24, 1959. This Rule was obtained on August 5, 1960, and that the petitioner firm delayed for about eight months before moving this Court. It is, no doubt, true that a petitioner, who seeks remedy by way of a high prerogative writ, particularly a Writ of Mandamus, must act with diligence and must move his application without delay. If there is a right of appeal, the petitioner should ordinarily take recourse to the statutory remedy. In the instant case, the petitioner firm had a right of appeal under section 188 of the Sea Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the case of Himmatlal Harilal Mehta v. The State of Madhya Pradesh and Others (1954 SCR 1122). But even then there was no justification for the petitioner firm to have made eight month's delay in presenting this application and I would have upheld the preliminary objection and refused to interfere in this matter at all but for the reason that the imposition of personal penalty on the petitioner firm, on the ground that the petitioner firm was concerned in the importation of the smuggled gold, was wholly unjustified. Since delay does not bar to the jurisdiction of this Court to interfere, and since I am of the opinion that in the ends of justice some interference with the impugned order should be made, I overrule the preliminary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized for assaying. Even the petitioner firm satisfied itself by drawing one sample on each occasion. Since the examination of the bulk of the samples indicated that the seized gold contained the refinement of gold of foreign origin, the evidence produced by the petitioner firm was held to be insufficient such evidence did not prove the lawful origin of the gold and as such the Customs Collector directed the confiscation of the gold. I am not prepared for the reasons aforesaid to interfere with the order of confiscation of the gold. Although I do so, I find that the petitioner firm was not concerned in the importation of gold and that finding was made without evidence. The petitioner firm may have purchased gold unlawfully imported into Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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