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TMI Blog1960 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... for India from Damascus via Beirut at about midnight on October 14, 1959. He had with him in a valise 14 gold bars weighing one kilogram each, the value whereof according to the Customs authorities exceeded Rs. 1,46,000. He came in a K.L.M. Plane with a ticket from Beirut to Calcutta and back. At the Customs barrier for examination of baggage at the airport of Dum Dum he declared that he had gold with him when he was taken to an ante room and interrogated at some length. He made out a statement in his own hand-writing and signed the same. According to this his purpose in coming to Calcutta was to obtain a visa to Hong Kong as there was no British Consulate in his country. He wanted to leave the gold in the custody of the Customs authorities at Calcutta while making preparations for his journey to Hong Kong and to take the same with him to the latter place and sell it there at some profit. He did not know anybody in Calcutta or for the matter of that in India and had been told at Karachi that he could stop at Russel Hotel while in Calcutta. In the early hours of the morning of October 15, 1959, he was allowed to leave the airport after the service of a summons on him under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Section 19 of Sea Customs Act and constituted an offence punishable under section 167(8) of the Sea Customs Act read with sections (a) and (b) of the Foreign Exchange Regulation Act, 1947 and the gold bars were accordingly detained being liable to confiscation under section 167 clause (8) of the Sea Customs Act read with Sections 23(a) and (b) of the Foreign Exchange Regulation Act. The document called upon the petitioner to produce a permit from the Reserve Bank of India to cover importation of gold within 4 days from date, failing which he was required to show-cause within the same period why the said gold bars should not be confiscated and penal action taken against him under the above sections of the different Act. He was informed that his reply should be accompanied by documentary evidence on which he might rely and stating whether he wished to be heard in person before a decision was made. He was further notified that if the explanation was not made in time or if he did not appear at the hearing of the case it might be decided on the basis of the evidence on record without any further reference to him. 5.Although there is no reference to it in the petition it cannot be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that a foreigner should make the allegations contained in paragraph 8 of the petition about the assault and blows dealt to him at the Customs house. These are of course denied in the affidavit in opposition of R.C. Misra but it could have been better if an affidavit had been affirmed by Parnham to that effect. I do not express any view with regard to the truth or falsehood of the charges but I do hope that the Customs Authorities will investigate the matter and ensure that there can be no occasion for any one, much less a foreigner, to cast aspersions like those contained in paragraph 8 of the petition to them. 7.The petitioner goes on to narrate that pursuant to the order of the Chief Presidency Magistrate passed on October 16, 1959 he was taken to the Presidency Jail where he again became unconscious and fell seriously ill and had to be removed to the Jail hospital where he remained until November 4, 1959, when he was released on bail of Rs. 50,000 under the orders of Chief Presidency Magistrate with the help of the Vice-Consul of the Consulate General of the United Arab Republic at Calcutta. While still in jail hospital another letter signed by the respondent R.C. Misra, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Sea Customs Act. A copy of this petition of complaint recites that the show-cause notice under the Foreign Exchange Regulation Act had been served upon the accused who had failed to produce any general or special permit of the Reserve Bank of India for importation of 14 bars of gold into West Bengal from outside and that the accused had knowingly and with intent to violate the prohibition or restriction for the time being in force with regard to the importation of gold had committed an offence under section 167(81) of the Sea Customs Act and section 23 of the Foreign Exchange Regulation Act and that the gold had already been confiscated by the Additional Collector of Customs. 9.On December 14, 1959 the said case was transferred to the Court of A.B. Bose, Magistrate, Barrackpore, who allowed the petitioner to be released on bail of Rs. 50,000. 10.In the meantime, the first respondent had passed an order confiscating 14 pieces of gold bars under section 167(8) of the Sea Customs Act. The order which bears the date November 9, 1959, was despatched to the petitioner on November 17, 1959. 11.The petitioner complains that the order of confiscation was arbitrary and illegal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng provisions of the Foreign Exchange Regulation Act, 1947, the notifications made thereunder and the Sea Customs Act of 1878 as amended from time to time. Under Section 8(1) of the Foreign Exchange Regulation Act. The Central Government may, by notification in the official gazette order that subject to such exemption, if any, as may be contained in the notification, no person shall, except with general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed being or send into India any gold or silver or any currency notes or bank notes or coin whether Indian or foreign. Explanation :- "The bringing or sending into any port or place in India of any such article as aforesaid intended to be taken out of India without being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be a bringing or as the case may be sending into India of that article for the purpose of this section." 14.The material notifications issued by the Central Government relating to the import of gold and silver are as follows :- I. Notification No. 12(II)-F 1/48, dated August 25, 1948, as amended up to February 8, 1957. "In exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong Kong and the gold had to be removed from the first plane for the purpose of transhipment to another, the petitioner would still be within the protection. If the petitioner happened to come to Calcutta by a plane which was not bound for Hong Kong and the petitioner had of necessity to get off the plane here with his gold and make a halt for a few hours to catch the plane to Hong Kong a question may arise as to whether he would be within the protection afforded by the second notification. It is not the petitioner's case that he had any general or special permission of the Reserve Bank of India as contemplated by the first notification. 16.Section 23(1a) provides that "whoever contravenes - (a) any of the provision of this Act or of any rule, direction or order made thereunder, other than those referred to in sub-section (1) of this section and section 19 shall upon conviction by a court be punishable with imprisonment for a term which may extend to two years or with fine or with both: (b) any direction or order made under section 19 shall, upon conviction by a Court be punishable with fine which may extend to two thousand rupees". Section 23(3) provides that "no Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such prohibition or restriction or if any attempt be made so to import or export any such goods, such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees". The sections of the Act which impose the above offences are sections 18 and 19 both contained in Chapter IV of the Act. The relevant portion of clause (8) of section 167 reads as follows : - "If any person knowingly, and such intent to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force such person shall on conviction before a Magistrate be liable to imprisonment for any ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the Chief Customs Officer or other officer appointed by the Chief Customs authority in this behalf may require the regulations under this section whether as to information, security, conditions or other matters to be complied with and may satisfy himself in accordance with those regulations that the goods are such as are prohibited to be imported. " Under Section 171A(1) of the Act "Any officer of Customs duly employed in the prevention of smuggling shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct and all persons so summoned shall be bound to state the truth upon any person respecting which they are examined or mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner can certainly be excused for the inactivity during this short period. Prima facie the rules of natural justice had not been observed in this case and no opportunity much less any adequate opportunity, was given to the petitioner to satisfy the authorities that he had not violated the law or that he was in a position to obtain dispensation from the law. 21.Mr. Kar, counsel for the respondent, contended that all this is of no avail if the facts disclosed in the petition do not show that the petitioner had or even now has any grounds which would give him immunity from the two notifications. For this he relied on the judgment of the Supreme Court in Maqbool Hussain v. The State of Bombay - 1983 (13) E.L.T. 1284 (S.C.) = AIR 1955 SC 325 wherein some observations of the Bombay High Court in Mahadev Ganesh v. Secretary of State - LLR 46 Bom. 730 were approved. 22.The facts in Maqbool Hussain's case were as follows : - The appellant, an Indian citizen arrived at the Santa Cruz Airport from Jeddah with certain quantity of gold which he did not declare on landing. The Customs authorities confiscated the gold under section 167(8) of the Sea Customs Act by order dated Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the provisions of the Civil or the Criminal Procedure Code. The Customs officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness……. All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgment or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act. The same view of the functions and powers of Sea Customs officers was expressed in Mahadev Ganesh v. Secretary of State and Anr. - LLR 46 Bom. 730. 24.Mr. Kar argued that the decision of the Supreme Court clearly shows that they approved of all that was said in Mahadev Ganesh's case. In that case the plaintiff Ganesh had filed a suit for a declaration that the order passed by the Collector of Salt Revenue and Customs finding him guilty of an offence punishable under section 167 of the Sea Customs Act, imposing a fine of Rs. 1,000 and confiscating 148 lbs. and 34 tolas weight of imported silver was ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Sea Customs Act, the appellants have no reason to complain that justice has not been dealt out to Mahadev by the Customs Authorities. Even dealing with the case on the merits, it seems to me absolutely certain that the story put forward by Ganesh with regard to the carriage of this silver from Bombay via Belgaum to Malayan was rightly taken to be a false one. In my opinion, therefore, in this case there has been an adjudication under the Act with which no fault can be found." Mr. Kar argued that the facts in this case are on a par with those in Ganesh Mahadev's case and I ought to hold in view of the materials on the record in this case that the petitioner's story that he intended to go to Hong Kong was a false one and the adjudication and confiscation unchallengeable. He relied on the affidavits of R.C. Misra in support of his contention that the petitioner could have got a visa at Beirut for this journey to Hong Kong and it is natural to expect that he would attempt to get the same at a place where he had relatives rather than try to get it at Calcutta where he did not know any body and where he had not been before. Moreover he had a return ticket from Bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or penalty under the Sea Customs Acts is not a mere administrative or executive act in respect of which no writ in the nature of certiorari would be available. They also pointed out quoting from Dasappa's case AIR 1954 SC 440 that "In granting a writ of certiorari the superior court does not exercise the powers of an Appellate Tribunal." It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal. 27.Mr. Kar placed strong reliance on the judgment of the Supreme Court in Maqbool Hussain's case and specially to the following observations made at page 330. "Confiscation is no doubt one of the penalties which the Customs authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam the object being to confiscation the offending goods which have been dealt with the contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the rules of natural justice. 30.I shall not attempt to lay down all the rules of natural justice. Suffice it to say that one of such well recognised rules is that a party against whom an adverse order is to be made must have an opportunity of sufficiently presenting his case and a full and fair opportunity of being heard. No less a person than Lord Wright pointed out that "it was not desirable to attempt to force natural justice into processtean bed." In view, though it is bare to formulate all the rules of natural justice it is easy to detect their violation. Natural Justice is like a natural stream whose boundaries are difficult to define but whose violation is at once detectable. I cannot accept Mr. Kar's contention that even after the petitioner had come out of jail he had sufficient time within which to approach the authorities and make out a case for exemption. To all intents and purposes the door leading to exemption from the operation of the Act was closed on the petitioner and it is not enough to say that if he attempted to satisfy the Customs Authorities after November 4, 1959, the petitioner could have avoided the confiscation of the gold. 31.In General Medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President announced that the charge had been proved and directed that the respondent's name should be erased from the medical register. On an application made to the King's Bench Division for an order of certiorari to quash the direction Caldecote C.J. and Humpheeyk J. took the view that the council had made due enquiry and the application should fail. Singleton J. took a different view which was unanimously accepted by the Court of Appeal. The appeal to the House of Lords was unanimously dismissed. Viscount Simon L.C. observed that although, "the Council was entitled to attach to the conclusion of the Divorce Court all the weight that is due to the effect on a trained judicial specialist of sworn testimony given subject to cross-examination…..all this did not exonerate the "Council from refusing to allow the accused to put before it relevant matter in support of his denial." Lord Atkin observed that "it was no doubt convenient to go by the decision of a High Court Judge but convenience and justice are often not on speaking terms." In pointing out that there was no appeal from the decision of the Council Lard Wright observed: such tremendous powers, which may close a man's prof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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