C. Jagannadhacharyulu, J.C.
1. This is a Writ Petition filed by the petitioner Shri Gauranga Chandra Deb of Joynagar Agartala, under Article 226 of the Constitution of India for a Writ of Certiorari or any other appropriate Writ quashing the order No. 13 Col.-L.C.-60 dated 25.2.1960 of the Collector of Central Excise and Land Customs, Shillong, with his office at Agartala for the State of Tripura, confiscating 41 gold bars weighing 426 tolas, 3 annas and 3 ratis under Section 67(8) of the Sea Customs Act (Act VIII of 1878) read with Section 19 of the same Act, as made applicable by Section 23 (A) of the Foreign Exchange Regulation Act (Act VII of 1947), directing the confiscation to be absolute in terms of Section 23(A) of the Foreign Exchange Regulation Act read with Section 183 of the Sea Customs Act and further imposing a penalty of Rs. 25,000 under Section 167(8) of the Sea Customs Act and to quash the Criminal Proceedings in Cr. Case No. 657 of 1959 pending before the S.D.M., Sadar Agartala under Section 23 of the Foreign Exchange Regulation Act.
2. The facts of the case as alleged by the petitioner in his Writ Petition and as disclosed by the documents filed, which led to the institution of this Writ Petition are briefly as follows:
(a) on the strength of a search warrant, dated 29.10.1959, signed by the then S.D.M., Agartala, and endorsed in favour of the third respondent Shri S.C. Paul, Deputy Superintendent of Central Excise and Land Customs and the Officer-in-charge, Circle Prevention Force in Agartala (on his requisition as per Ex. A-1) the residential house of the petitioner was searched, as per Ext. A-2 between 6 A.M. and 8 A.M. on 30.10.1959, by the Officers of the Central Excise and Land Customs attached to the Agartala Office, let by the second respondent who was they the Superintendent of Central Excise and Land Customs-in-charge of Circle I in Agartala.
The searching party seized 28 gold bars from a bed, 2 gold bars from a shoe heel and II gold bars from the cushion of Goddess Laxmi valued at Rs. 51,759, one Japan Pilot fountain pen valued at Rs. 13 and one cigarette case with lighter valued at Rs. 20.50 in the presence of Shri Arunoday Roy Choudhury, Nam Gopal Paul Choudhury, Jatindra Chandra and Subhir Chandra Das of Joyngar, Agaratala. The search warrant was returned to the Magistrate on 30.12.1959 as can be seen from Ext. A-2. The petitioner was arrested by the second respondent on 30.12.1959 between 6 A.M. and 8 A.M. He was taken to the Office of the Central Excise and Land Customs. He was forced to write a statement according to a draft prepared by the respondents 1 and 2. Later on, the petitioner was produced before the District Magistrate, Tripura, under arrest at about 3 P.M. with a report that he arrested the petitioner at 2 P.M.: Vide Ext. A-3.
(b) The District Magistrate, Tripura, sent the petitioner to the S.D.M., Sadar under arrest. The S.D.M. Sadar registered a case against the petitioner under Section 23 of the Foreign Exchange Regulation Act in Criminal Case No. 657 of 1959 and remanded the petitioner to custody till 12.11.1959 by his order. dated 30.10.1959. The S.D.M. passed an order on 2.11.1959 directing the release of the petitioner from custody on bail for Rs. 55,000 with two sureties for a like amount, as can be seen from Ext. A-4, On a motion the Sessions Judge. Tripura, however, reduced the bail amount from Rs. 55,000 to Rs. 10,000 by his order dated 10.11.1959 in Criminal Motion No. 134 of 1959, as can be seen from Ext. A-5. The respondents filed a formal complaint before the S.D.M. Agartala on 8.4.1960.
(c) The second respondent issued two show cause notices as per Exts. A-6 and A-6(a) dated 5.11.1959 directing the petitioner to show cause if he had any general or spectral permission from the competent authorities to import the sold in Question in to India from any foreign Territory and to show cause why he should not confiscate the sold and levy penalty on the petitioner under Section 167(8) of the Sea Customs Act on the allegation that the sold was importer! by the petitioner by land from Pakistan into India on or before 30.10.1959 without any valid permit and through unauthorized route.
The petitioner sent his reply as per Ext. A-7 on 9.12.1959 denying having imported the gold from Pakistan unauthorisedly. He asserted that the gold was his personal property and that he was retaining the same in his own possession and in the State of Tripura even from before the birth of Pakistan. He also stated that the respondents 2 and 3 obtained the statement of the petitioner as per Ext. B-14 under threat, intimidation and coercion. At the request of the petitioner, the first respondent heard the petitioner at Shillong on 19.1.1960. The first respondent sent a letter as per Ext. A-8 to the petitioner intimating him that an enquiry would be held on 4.2.1960 in the Office of the Central Excise in Agartala. Accordingly, the Assistant Collector held the enquiry or 4.2.1960 in which the petitioner was represented by his Advocate Shri J. Choudhury and Pleader Shri H. Dutta. In the enquiry 4 witnesses including the second respondent were examined and cross-examined. The first respondent supplied the petitioner with carbon copies of the depositions of the witnesses examined by the Assistant Collector as can be seen from Ext. A-9. As the copies of the depositions were not signed by the Inquiring Officer, the first respondent informed the petitioner, as can be seen from Ext. A-10, letter dated 8.4.1960, that the original depositions with signatures were in the Office and that the copies of the same were sent to the petitioner. The first respondent did not fix any other date for further enquiry.
(d) After the gold was seized by the second respondent, the second respondent asked the petitioner, by his letter as per Ext. A-11 dated 24.11.1959, to appear in his office in Agartala at 9 A.M. on 28.11.1959 to be present when the samples of the gold were taken. Though the petitioner addressed a letter to the first respondent, as per Ext. A-12 dated 26.12.1959, requesting him to give him a copy of the report of the expert who tested the sold, he did not send any copy of the report. The petitioner was not supplied with a copy of the report even in Criminal Case No. 657 of 1959 before the S.D.M. Sadar, Agartala.
(e) Ultimately, the first respondent sent an order, as per Ext. A-14 dated 25.2.1960, confiscating the entire gold and imposing personal penalty of Rs. 25,000 upon the petitioner. He, however, ordered that the fountain pen and the cigarette lighter should be released to the petitioner. Subsequently Shri S.R. Barua. who signed the complaint petition, as per Ext. A-13 dated 8.3.1960, served a notice upon the petitioner directing him to produce before him any authority or any general or special nor mission to import the gold from Pakistan or any other foreign country into India under Section 23(3) of the Foreign Exchange Regulation Act. though cognizance of the offence under Section 23 of the said Act was already taken by the S.D.M. Sadar against the petitioner on 30.10.1959. The order of the first respondent as per Ext. A-14 is liable to be set aside for the grounds mentioned in the petition. The Criminal proceedings pending against the petitioner before the S.D.M., Sadar, Agartala are also liable to be quashed.
3. Rule nisi was issued to which the respondents filed a counter-affidavit. The. petitioner filed a further reply.
4. The points which were argued and which arise for consideration are:
(i) Whether the petition is not maintainable;
(ii) Whether the prosecution of the-petitioner, for offence under Section 23 of the Foreign Exchange Regulation Act (Act VII of 1947) is hit by Article 20(2) of the Constitution of India and is liable to be quashed: and
(iii) Whether the order of the first respondent as per Ext. A-14 dated 25.2.1960 is liable to be quashed for the various grounds mentioned in the petition.
5. Point (i): -The contention of the learned Government Advocate appearing for the respondents is that under Section 188 of the Sea Customs Act (Act VIII of 1878) an appeal lies to the Chief Customs Authority that the petitioner should have filed an appeal to the Chief Customs Authority against the order covered by Ext A-14 and that, therefore, the person Writ Petition does not lie. In support of this contention he relied on a decision of this Court reported in Usha Ranjan Banik v. Collector of Central Excise and Land Customs AIR 1954 Tripura 7. In that case the petitioner was detected attempting to export currency from India to Pakistan in contravention of Section 19 of the Sea Customs Act, 1878, and Section 8(2) of Foreign Exchange Regulation Act, 1947 read with Reserve Bank of India Notifications. The amount was confiscated by the Customs authorities under Section 167(8) of the Sea Customs Act. It was held that there was an adequate alternative remedy for the petitioner to file an appeal and that therefore the petitioner could not have any resort to the extraordinary procedure under Article 226 of the Constitution of India.
But, as rightly contended by the learned Counsel for the petitioner, in the present case the remedy of appeal provided by Section 188 of the Sea Customs Act is almost illusory and is practically of no avail to the petitioner, since he had to deposit the entire sum of Rs. 25,000 under Section 189 of the Sea Customs Act before the appeal was disposed of by the Chief Customs Authority. The deposit of the penal amount of Rupees 25,000 was a condition precedent as can be seen from Shri Digvijaysinhji Spinning and Weaving Mills Ltd. v. Collector of Customs : AIR1958Bom305 , By imposition of such a huge amount of Rs. 25,000 towards fine, the remedy of the petitioner to file an appeal after depositing the said amount has become nugatory and is inadequate. In such circumstances the law is clear that the petitioner can move the High Court for the necessary writ if otherwise he is entitled to the same. Vide Anglo India Jute Mills Co., Ltd. v. S.K. Dutt : 30ITR525(Cal) . It was held in that case that, if a statute requires the entire money to be paid or deposited, it is not an alternative remedy which precludes an application for a high prerogative writ. Vide also Himmatlal Harilal Metha v. State of Madhya Pradesh : 1SCR1122 . It was held that the remedy provided by the C.P. and Berar Sales Tax Act (Act II of 1947) was of an onerous and burdensome character, since the assesses could avail of it only after depositing the whole amount of the tax and that therefore such a provision could hardly be described as an adequate alternative remedy. Besides, in this case, the petitioner alleges that his fundamental right regarding the gold was violated under Article 31(2) of the Constitution of India. This question also has to be gone into. So, the Writ Petition is maintainable.
6. Point (ii): -The contention of the learned Counsel for the petitioner is that after the petitioner was arrested on 30.10.1959, he was produced before the District Magistrate in Agartala, that the latter sent the petitioner to the S.D.M., Sadar, Agartala, that the latter took cognizance of the case under Section 23 of the Foreign Exchange Regulation Act (Act VII of 1947) in Criminal Case No. 657 of 1959 on his file and that, thereafter, the first respondent had no jurisdiction to proceed with the enquiry. The learned Counsel for the petitioner developed his argument on the basis of Exts. A-6 and A-6(a) show cause notices issued by the second respondent on 5.11.1959. In Ext. A-6(a) it was alleged that the petitioner imported the gold without valid permission or an import license as required by the Government of India, Ministry of Commerce and Industry I.T.C. Order No. 17/55 dated 7.12.1955, read with Section 19 of the Sea Customs Act, as made applicable under Section 3(1) of the Imports and Exports Control Act of 1947 and without a valid permission granted by the Reserve Bank of India, under the Government of India, Ministry of Finance Notification No. 12(II)F 1/48 dated 25.8.1948 and 12(II)F 1/51 dated 27.2.1951 as amended by Notification No. 2/36/-EF7/53 dated 5.2.1955 issued under Section 8(1) of the Foreign Exchange Regulation Act and' Section 19 of the Sea Customs Act, as made applicable under Section 23(A) of the Foreign Exchange Regulation Act.
A-6(a) further shows that the petitioner was called upon to show cause why the goods should not be confiscated under Sections 5(3) and 7(1) of the Land Customs Act 1924 and Section 167(8) of the Sea Customs-Act, read with Section 19 ibid as made applicable by Section 3(2) of the Imports and Exports Control Act, 1947 and Section 23(A) of the Foreign Exchange Regulation Act and why penalty also should not be levied against him under Section 7 of the Land Customs Act, 1924 and Section 167(8) of the Sea Customs Act, The contention of the learned Counsel for the petitioner is that the Sea Customs Act (Act VIII of 1878) came into force or 8.3.1878, that the Foreign Exchange Regulation Act (Act VII of 1947) was enacted on 11.3.1947. that as the second respondent proposed to take action under Sections 19 and 167(8) of the Sea Customs Act as made applicable by Section 23(A) of the Foreign Exchange Regulation Act, and that as the alleged offence in question is punishable under both the Acts, the relevant provisions of the Sea Customs Act, which are inconsistent with those in the subsequent enactment of Foreign Exchange Regulation Act, must be held to be not applicable, that cognizance of the case was taken by the S.D.M., Sadar, Agartala, in case No. 657 of 1959 under Section 23 of the Foreign Exchange Regulation Act on 30.10.1959 and that, therefore, the first respondent could not proceed with the departmental enquiry, prejudicing the rights of the petitioner under Sections 23 and 23 (A) of the Foreign Exchange Regulation Act.
7. To appreciate this argument, it is necessary to refer to the relevant provisions in both the Acts. Section 19 of the Sea Customs Act empowers the Central Government, by issuing notification in the official gazette from time to time, to prohibit or restrict the bringing or taking by Sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government. Section 182 of the Act runs as follows:
In every case, except the cases mentioned in Section 167, Nos. 26, 72 and 74 to 76, both inclusive, in which, under this Act, anything is liable to confiscation or to increased rates of duty;
or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged-
(a) without limit by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector;
(b) unto confiscation of goods not exceeding two hundred and fifty rupees in value, and imposition of penalty or increased duty, not exceeding one hundred rupees, by an Assistant Commissioner or Assistant Collector of Customs;
(c) up to confiscation of goods not exceeding fifty rupees in value, and imposition of penalty ox increased duty not exceeding ten rupees, by such other subordinate officers of Customs as the Chief Customs authority may, from time to time, empower in that behalf in virtue of their office;
Provided that the Chief Customs authority may, in the case of any officer performing the duties of a Customs Collector, limit his powers to those indicated in Clause (b) or in Clause (c) of this Section, and may confer on an officer, by name or in virtue of his office, the powers indicated in Clause s (a), (b) or (c) of this Section.
Section 183 of the same Act lays down that whenever confiscation is authorized by the said Act, the Officer adjudging it shall give the owner of the goods an option to pay, in lieu of confiscation, such fine as the officer thinks fit. So, under this Section the Customs Officer is bound to give the owner of the goods an option to pay fine in lieu of the confiscation. Section 23 of the Foreign Exchange Regulation Act runs as follows:
(1) If any person contravenes the provisions of Section 4, Section 5, Section 9 or Sub-section (2) of Section 12 or of any rule, direction or order made thereunder, he shall-
(a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or
(b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(1A) Whoever contravenes-
(a) any of the provisions 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.
(1B) Any Court trying a contravention under Sub-section (1) or Sub-section (1A) and the authority adjudging any contravention under Clause (a) of Sub-section (1) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, in respect of which the contravention has taken place, shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any, of the person committing the contravention or any part thereof shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf. Explanation. - For the purposes of this sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where the said property is converted into such deposits.
(2) Notwithstanding anything contained in Section 32 of the Code of Criminal Procedure, 1898, it shall be lawful for any Magistrate of the first class, specially empowered in this behalf by the State Government, and for any Presidency Magistrate to pass a sentence of fine exceeding (two thousand) rupees on any person convicted of an offence punishable under this section.
(3) No Court shall take cognizance-
(a) of any offence punishable under Sub-section (1) except upon complaint in writing made by the Director of Enforcement, or
(b) of any offence punishable under Sub-section (1A) of this Section or under Section 54 of the Indian Income-tax Act, 1922, as applied by Section 19 of this Act, except upon complaint in writing made by the Director of Enforcement or any officer authorized in this behalf by the Central Government or the Reserve Bank by a general or special order:
Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
(4) Nothing in the first proviso to Section 188 of the Code of Criminal Procedure, 1898, shall apply to any offence punishable under this section.
Section 23A was introduced by the Central Amendment Act (Act VIII of 1952) giving discretion to the officer to direct payment of fine in lieu of confiscation which is otherwise mandatory under Section 183 of the Sea Customs Act. It runs as follows:
Application of Sea Customs Act, 1878. Without prejudice to the provisions of Section 23 or to any other provision contained in this Act, the restrictions imposed by Sub-sections (1) and (2) of Section 8, Sub-section (1) of Section 12 and Clause (a) of Sub-section (1) of Section 13 shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted.
8. The argument of the learned Counsel for the petitioner is that if the prosecution of the petitioner in Criminal case No. 657 of 1959 was proceeded with under Section 23 of the Foreign Exchange Regulation Act, he stood the chance of an acquittal, that in such a case there would be no confiscation of his sold or imposition of fine, and that, even if the case ended in conviction, it was in the judicial discretion of the Magistrate to order forfeiture of the gold but that as the first respondent proceeded under the Sea Customs Act, the petitioner was prejudiced with reference to Section 23 of the Foreign Exchange Regulation Act and that therefore, the order of the first respondent Ext. A-14 is liable to be quashed.
His contention that the later Act must prevail and that by necessary implication, the repeal of the earlier Act can be inferred when the same matter is covered by both the Acts, unless both can be reconciled is supported by Emperor v. Probhat Chandra Baruah AIR 1927 Cal 432. His further contention that when an individual is sought to be proceeded against for an offence of contravention of Foreign Exchange Regulation Act, then Section 182 of the Sea Customs Act must be deemed to have been abrogated is supported by the decision of Bose J of the Calcutta High Court in Shew Pujan Rai Indrasan Rai Ltd. v. Collector of Customs : AIR1952Cal789 . In that case the petitioners were charged with violation of Section 19 of the Sea Customs Act read with Section 8 of the Foreign Exchange Regulation Act. It was held that the petitioners case came within Section 23 of the Foreign Exchange Regulation Act, that the adoption of the procedure under Section 182 of the Sea Customs Act had prejudiced Section 23 of the Foreign Exchange Regulation Act and that the entire proceedings before the Customs authorities were without jurisdiction. It was further held that if the petitioners were not implicated in the charge, it might have been open to the Customs authorities to proceed under Section 182 of the Sea Customs Act, if steps were intended to be taken only against the offending goods.
9. It is also the contention of Sri M.R. Choudhary the learned Counsel for the petitioner that Ext. A-4 shows that as soon as the petitioner was sent to the S.D.M., Sadar, for tria' on 30.10.1959, the S.D.M., took cognizance of the case on the same date by registering it under Section 23 of the Foreign Exchange Regulation Act and remanded the petitioner to custody for 14 days and adjourned the case to 12.11.1959 for further report of the second respondent and that, therefore, in view of the decision of Bose J. referred to above, the first respondent had no jurisdiction to proceed with the departmental enquiry. As to the point of time when a case can be said to have been taken cognizance of, he relied on Paramananda Brahmachari v. Emperor AIR 1930 Pat 30 where it was held that 'taking of cognizance' of a case occurs as soon as the Magistrate as such applies his mind to the suspected commission of an offence. In Dalu Gour v. Moheswar Mahato AIR 1948 Pat 25 it was held that it is well settled that when a case is transferred to a subordinate Magistrate under Section 192(1) Cr.P.C. the latter has the same authority to deal with the case as regards issuing of process and other matters connected with the inquiry or trial, as is vested in the superior Magistrate, from whom he received the case on transfer.
Ext. A-4 shows that the S.D.M., Sadar, registered the case against the petitioner under Section 23 of the Foreign Exchange Regulation Act, though no formal complaint was made after it was transferred to him by the District Magistrate. With regard to this aspect of the case, the contention of the learned Counsel for the respondents is that under Section 174 of the Sea Customs Act the second respondent was bound to produce the petitioner before the nearest Magistrate, that subsequently the Magistrate granted his bail under Section 175 of the said Act and that no cognizance of the offence was taken by him until the complaint was actually filed before him on 8.4.1960.
It is no doubt true that, under Section 174 of the Sea Customs Act, every person arrested on the ground that he is guilty of the offence under the Act should forthwith be taken and produced before the nearest Magistrate or Customs Collector and that under that provision the petitioner was produced before the District Magistrate in the first instance. But, Ext. A-4 certainly shows that the S.D.M. took cognizance of the case by passing an order registering the case under Section 23 of the Foreign Exchange Regulation Act and awaiting further report of the second respondent. So the S D M. must be held to have taken cognizance of the case on 30.10.1959.
10. Another contention of the learned Counsel for the petitioner in connection with the same point No. (ii) is that the proceedings before the first respondent were in the nature of 'prosecution' and that the petitioner cannot be prosecuted and punished for the same offence more than once under Article 20(2) of the Constitution of India.
11. The above arguments and the contentions of the learned Counsel for the petitioner were all adverted to and repelled by the Supreme Court in Thomas Case v. State of Punjab : 1959CriLJ392 by a majority of 4 Judges. In that case after a departmental inquiry, the Colletor of Customs directed 'absolute confiscation' of sew A kinds of currency (of the value of more than Rs. 8 lacs) under Section 8(2) of the Foreign Exchange Regulation Act read with Sections 23A and 23B of the Act. He also directed confiscation of a car (from which the smuggled currency was seized) and ordered that it could be redeemed on payment of a redemption 'fine' of Rs. 50,000/-. He also ordered confiscation of d pocket radio, timepiece and some other articles under Section 167(8) of the Sea Customs Act. read with Section 5 of the Imports and Exports (Control) Act, 1947 and Section 7 of the Land Customs Act, 1924. He further imposed a heavy personal penalty of Rs. 25,00,000/- on each of the petitioner is under Section 167(8) of the Sea Customs Act (as in the present case).
Again, the customs authority filed a Criminal complaint against the petitioners and another under Section 23 read with Section 8 of the Foreign Exchange Regulation Act and under Section 167 (81) of the Sea Customs Act. The petitioners challenged their criminal prosecution and convictions and that sentences as infringing the protection against double jeopardy enshrined in Article 20(2) of the Constitution of India. It was also urged before the Supreme Court that the orders of the Customs authority in levying a heavy 'penalty' of Rs. 25,00,000/- on each of the petitioners and order of confiscation of currency and properties worth over 8 lacs called for distinguishment of the case from the previous decision of the Supreme Court in Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) that the proceedings before the Customs authorities do not con-titute a 'Prosecution' to sustain a plea of double jeopardy. But the Supreme Court, by a majority of the Judges, repelled the petitioners' contentions and held that the proceedings before the Sea Customs authorities under Section 167(8) of the Sea Customs Act are not 'prosecution' within the meaning of Article 20(2) of the Constitution of India and that, therefore, the fact that in such a proceeding the Customs Authorities confiscated the goods and also inflicted a heavy penalty, does not bring into operation the provisions of Article 20(2) of the Constitution of India so as to prevent his prosecution and imprisonment under Section 167(8) of the Sea Customs Act read with Sections 23 and 23B of the Foreign Exchange Regulation Act. It was also held that the Customs Officer is not a Court, that simply because a Customs Officer took a very serious view of the smuggling activities of a person and imposed very heavy penalties under Section 167(8) of the Sea Customs Act would not convert the authorities into a Court of law or the penalty imposed on that person as a 'punishment' imposed by the Criminal Court. It was further held that there is difference in the nature of the proceedings against the offending articles and offending persons. The proceedings against the former are proceedings in rem (even if the offender is not known). The proceedings against the latter are proceedings in Personam where the offender is known. Where the offender is known, both the types of proceedings can be taken under the Sea Customs Act and the Foreign Exchange Regulation Act. So the contention of the learned Counsel for the petitioner that the proceedings before the! first respondent are invalid, as the S.D.M. Sadar took cognizance of the case and that there could not be two proceedings viz. one before the first respondent (Customs Officer) and another in the Criminal Court is not correct The fact that cognizance of the Criminal case was taken by the S.D.M. Sadar, Agartala even on 30.10.1949 therefore does not vitiate the departmental proceedings before the first respondent. Though the decision of Bose, J. in : AIR1952Cal789 was not referred to by the Supreme Court, it must be held to have been overruled and it is no longer good law. this Court is bound to follow the judgment of the Supreme Court.
12. Point (iii):- The learned Counsel for the petitioner assailed the order covered by Ext. A-14 on various grounds. His first contention is that the first respondent should not have relied upon the statement of the petitioner as per Ext. B-14 made by the petitioner on 30.10.1959 after the gold was seized from his house. Exhibit B-14 shows that he made voluntary statement before the witnesses Arunoday Roy Choudhury, Nani Gopal Paul Choudhury and Sudhir Ch. Das, that he originally belonged1 to the Village of Kaimpur, P.O. Mandhabhag, Thana-Kasba, District - Tipperah, East Pakistan, that his mother had died, that his father is still living in that village, that the petitioner came away to Tripura about 7 or 8 years prior to the date of his statement that he had neither refugee card nor Indian Nationality certificate and he had no Indian or Pakistan passport.
He further stated as per Ext. B-14 that after he came over to India, he began to maintain his livelihood by selling patent medicines, that he was earning Rs. 250 or Rs. 300 a month, that he has a wife, son, sister and brother, that he gave a sum of Rs. 50,000 to one Santosh Kumar Das, son of Sachindra Chandra Das, Village Kandir-par, P.O. Comilla, Distiict-Tipperah, East Pakistan, that Santosh Chandra Das brought the gold bars to him from Pakistan and that thus he 'caused' the gold bars to be brought from Pakistan to his residence at Agartala. He went on to state that the documents seized from his house were papers connected with his purchase of gold, that he borrowed moneys from others, that he discharged the same; that he purchased 5 tickets for himself, his wife, children and relations to go to Calcutta on 31.10.1959 by air, that the Customs Officers seized the tickets and returned them and that they also seized the ornaments of his wife and returned them to him after verification. He appended a list of articles seized from his house to the statement. There are, however some disputed facts which cannot be gone into in this petition. They are, firstly whether the petitioner was arrested between 7 A.M. and 8 A.M. on 30.10.1959 as alleged by him or whether he was arrested at about 2 P.M. as alleged by the respondents; secondly whether the statement as per Exhibit B-14 was taken from the petitioner by compulsion as alleged by him or whether he gave it voluntarily as alleged by the respondents; thirdly whether the S.D.M. postponed granting bail to the petitioner till 3.11.1959 and fourthly, whether the wife of the petitioner was also taken to the second respondent's office along with her ornaments. The disputed facts cannot be entered into in this Writ Petition.
13. The first respondent considered the statement of the petitioner covered by Exhibit B-14 in his order as per Ext, A-14 in the light of the evidence of the other witnesses and concluded firstly, that the records of Agartala Land Customs Station showed that the petitioner held a Pakistan Passport No. A/371610 dated 12.6.1958, that he made two journeys on the strength of the said passport, that he left India through the Land Customs Station on 16.9.1959, that there was no record to show his re-entry into India through the same Land Customs Station and that his connection with Pakistan was thus evident. Secondly, he held that the gold bars were seized on a reasonable belief that they were smuggled, but that the petitioner did not produce any document showing licit import of the gold bars from Pakistan into India and that, therefore, the goods were liable to be seized by the Land Customs Officers. Thirdly, he held that though there was some vague indication of a threat by the Second respondent, still it was not believable that the petitioner would have waited until 9.12.1959 (when he sent his reply as per Ext. A-7 complaining of compulsion) without making a complaint to the authorities that the statement as per Ext. B-14 was taken from him by coercion or threats and that, therefore, Ext. B-14 statement of the petitioner was a voluntary one. Fourthly, he held that illicit import of the seized gold bars was established and that they were liable to be confiscated and that the petitioner is also liable to be fined under Section 167(8) of the Sea Customs Act read with Section 19 ibid as made applicable by Section 23A of the Foreign Exchange Regulation Act.
14. The above findings of the first respondent were vehemently attacked by the learned Counsel for the petitioner. With regard to the first finding of the first respondent that the petitioner is a Pakistan national, there is a reported decision regarding the self-same petitioner in question in Shri Gauranga Chandra Deb v. Tripura Administration AIR 1964 Tripura 7. It was held that the petitioner herein entered into India after 16.9.1959 without a valid visa and that he was liable to be convicted under Rule 6(a) of the Passport Rules, 1950, framed under the Passport Act of 1920. It is very pertinent to note that the seizure of gold bars from his residential house in Agartala in Indian State took place within about 14 days after he entered India. Ext B-14 also shows that the petitioner made preparation to leave Apartala for Calcutta on 31.10.1959 (evidently along with the gold bars).
The contention of the learned Counsel for the petitioner is that the above judgment cannot be looked into for the purpose of arriving at a finding whether the petitioner is a Pakistan national and relied on Anil Behari Ghosh v. Smt. Latika Bala Dassi : 2SCR270 . In that case there was a proceeding for revocation of the grant of probate under Section 263 Indian Succession Act. The question was whether the son of the testator murdered him. It was held that it could not be assumed on the basis of a previous judgment of a Criminal Court convicting the son of the murder of his father and sentencing him to transportation for life, that the son was the murderer of the testator. But. it was held that the judgment of the Criminal Court was relevant to show that there was such a trial resulting in the conviction and sentence of the son to transportation for life. In view of this decision, it follows that the judgment of this Court mentioned above is relevant to show fiat the petitioner was prosecuted for violation of the Passport Rules on 16.9.1959 and that the prosecution resulted in his conviction. There is material in the present case to show that the petitioner crossed India from Pakistan without a valid Passport on 16.9.1959 about 14 days before the gold bars were seized from his residence.
15. Regarding the second finding of the first respondent that the burden of proof lay on the petitioner to prove that the seized gold was brought by him from Pakistan to India under a valid permit, the learned Counsel for the petitioner argued that the burden of proof was wrongly cast on the petitioner. Section 178A of the Sea Customs Act is the relevant provision. It runs as follows:
(1) Where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
(2) This Section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may, by notification in the Official Gazette, specify in this behalf.
(3) Every notification issued under Sub-section (2) shall be laid before both Houses of Parliament as soon as may be after it is issued.
The contention of the learned Counsel for the petitioner was that the initial burden lay on the respondents to show that the goods were smuggled and that thereafter only the burden would be shifted to the petitioner to show that they were not smuggled goods. Smuggling is nothing but importation or exportation of goods secretly or clandestinely without payment of duty. Vide also Bakhand Patni v. Officer-in-charge Customs, Agartala AIR 1956 Tripura 35. In support of his contention that the initial burden lay upon the respondents to show that the goods were smuggled, the petitioner's Counsel relied on Amba Lal v. Union of India AIR 1961 SC 264. It was held that if Section 106 of the Indian Evidence Act applied to a case, then by analogy, the fundamental principles of criminal jurisprudence equally applied; that it therefore followed that the onus was on the Customs authorities to prove the case against the accused and that where the Customs authorities did not discharge the burden, the order of confiscation was bad. In that case the goods were seized prior to 14.7.1951 and the order of confiscation was passed on 18.1.1952. But, Section 178A of the Sea Customs Act was introduced by the Sea Customs Amendment Act XXI of 1955 and it was held that, the said Section 178A did not govern the case, because the Section was not retrospective in operation. As such, this decision does not apply to the facts of this case. The petitioner's counsel also relied on Hiralal Sarawgi v. Collector of Central Excise and Land Customs for Assam AIR 1962 Assam 39. It was held that although under Section 167(8) of the Sea Customs Act a special jurisdiction is conferred on the authorities to confiscate certain goods, which have been imported in contravention of the order of prohibition issued by the Central Government either under Section 19 of the Sea Customs Act or under the Imports and Exports (Control) Act, 1947, still when the person contravening the provisions was tried of an offence, the Department was bound to prove that the goods in question were in fact imported in contravention of the prohibition order and that the burden of proof, which lay on the Department, was not discharged by merely holding that the petitioner failed to prove the bona fide purchase of the goods alleged by him.
The decision of the Supreme Court referred to above viz., AIR 1961 SC 264 was applied. But the judgment shows that Section 178A of the Sea Customs Act was not considered at all. As against these rulings the decisions cited by the learned Counsel for the respondents are more to the point. In Shermal Jain v. Collector of Central Excise and Land Customs : AIR1956Cal621 it was held that, by the introduction of Section 178A in the Sea Customs Act and in the Schedule of Land Customs Act, the onus to prove that the goods were not contraband lies upon the person from whose possession the goods were seized. In Kshetra Nath Basak v. Collector of Land Customs : AIR1959Cal356 it was held that Section 178A of the Sea Customs Act applies under two conditions. The first condition is that the goods must be seized under the Act under the reasonable belief that they are smuggled goods. The second condition is that the burden of provide that they are not smuggled goods shall be on the person from w hose possession the good were seized. It was also held that Section 178A of the Sea Customs Act relates to the procedural rights & discharge of onus of proof. & that the onus of proof comes into operation (after the goods are seized and when the matter is taken up for hearing) that they are not smuggled goods, I respect-1 fully agree with these decisions of the Calcutta High Court. The proceedings before that Customs authorities are not a criminal prosecution and all the principles of criminal jurisprudence do not apply to them. Vide : 1959CriLJ392 . The provisions of Section 178A of the Sea Customs Act cannot be rendered nugatory and nullity by being ignored. The goods were seized by the second respondent under a reasonable belief that they were smuggled. At the time of the inquiry before the first respondent the burden lay upon the petitioner to show that they were not smuggled goods. So, the first respondent did not go wrong in casting the burden upon the petitioner.
16. Regarding the third finding of the first respondent, the contention of the learned Counsel for the petitioner was two-fold. His first, contention was that the second respondent violated the fundamental right guaranteed to the petitioner under Article 20(3) of the Indian Constitution by compelling him to be a witness against himself and to make the statement as per Ext. B-14 and that therefore his statement should have been rejected. He relied on M.P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) where it was held that the fundamental right covered by Article 20(3) of the Constitution of India consists of (i) a right of a person accused of an offence, (ii) a protection against compulsion to be a witness and (iii) a protection against such compulsion resulting in his evidence against; himself. It was further held that the guarantee under Article 20(3) of the Constitution of India would be available to a person against whom a formal accusation relating to the commission of an offence has been levelled, which in the normal course may result in his prosecution.
In that case searches made under the Criminal Procedure Code were the subject matter of decision. Vide also Collector of Customs v. Calcutta Motor and Cycle Co. : AIR1958Cal682 which followed the above decision. It was held that accusations made in the search warrants at the instance of the customs authorities and in one of their notices at a pre-trial stage (which might in the normal course result in a prosecution) would attract the protection of Article 20(3) of the Constitution of India.
17. But, Section 171A of the Sea Customs Act (inserted by the, Sea Customs Amendment Act XXI of 1955) runs thus:
(1) 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 inquiry 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 so 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 subject respecting which they are examined or make statements and to produce such documents and other things as may be required:
Provided that the exemption under Section 132 of the Code of Civil Procedure 1908 (5 of 1908) shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860).' Analogous provisions in Section 240 of Indian Companies Act were considered by the Bombay High Court in Narayanlal Bansilal v. Maneck Phiroze Mistry : AIR1959Bom320 . It was held that Article 20(3) of the Constitution should be read in the context of the two Clause s which precede it and that it should not be read in the light of the American Constitution or the American decisions and that in the case of an inquiry held under Section 235 of the Indian Companies Act in the first instance there is no accusation and that the compulsion introduced by the provision in Section 240 of the Companies Act is not a compulsion, which can be struck down by Article 20(3) of the Constitution. This decision was approved by the Supreme Court in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry : 1SCR417 . It was held that when a person is called upon under Section 240 of the Companies Act to give evidence and to produce documents, he cannot be said to be a person who is accused of any offence as required by Article 20(3) of the Indian Constitution.
It was further held that at the commencement of the enquiry there could be no accused person, no accuser and no accusation against anyone that he has committed an offence and that a general enquiry and investigation into the affairs of the company contemplated cannot be regarded as an 'investigation', which started with an accusations contemplated in Article 20(3) of the Constitution. The contention of the learned Counsel for the respondent is that on the analogy of the provision contained in Section 240 of the Indian Companies Act, it could not be said that there was any accusation when the house of the petitioner was searched and that the statement of the petitioner would fall under Section 171A of the Sea Customs Act. Also, he argued that the proceedings before the Customs Officers are not criminal in nature and are not, in the nature of 'prosecution'' against the petitioner as laid down by the Supreme Court in Thomas Dana v. State of Punjab : 1959CriLJ392 already referred to. But the disposal of the contentions of the learned Counsel for both the parties (which are equally sound) depends on the appreciation of the evidence recorded in the Departmental inquiry. this Court exercising the extraordinary jurisdiction under Article 226 of the Constitution of India cannot function as a Court of appeal and sift the evidence. So, I would prefer to base my judgment on this point on the finding of fact arrived at by the 1st respondent that the statement of the petitioner as per Ext. B-14 was a voluntary one. In such a case, it is not hit by Article 20(3) of the Constitution of India.
18. In this connection the (earned Counsel for the petitioner contended that the second respondent issued the show-cause notices as per Exts. A-6 and A-6(a) dated 5.11.1959 that the first respondent examined 4 witnesses on 6.11.1959. but that copies of their statements were not furnished to the petitioner, that the petitioner sent his reply as per Ext. A-7 dated 9.12.1959 that there was violation of the principles of natural justice and that the proceedings before the 'first respondent are liable to be quashed. Reliance was placed by him on 4 decisions in support of this contention. In James Bushi v. Collector of Ganjam : AIR1959Ori152 it was held that if there was a preliminary enquiry (not of a confidential nature) preceding the holding of a regular departmental enquiry, the delinquent officer should be given copies of statements made by witnesses during that preliminary enquiry, but that a secret investigation made by the C.I.D. specially of the Anti-Corruption Branch, stands on an entirely different footing and that the copies of the statements recorded by the C.I.D. Officers need not be furnished to the delinquent.
In Snarmanand v. Supdt Gun-Carriage Factory Jabalpur : AIR1960MP178 it was held that the delinquent in a departmental enquiry should be given a reasonable opportunity to defend himself, that the opportunity includes not only a right to cross-examine the witnesses for the department but also to crus^-examine them effectively In Valimahomed Gulamhussain Sonavala and Co v. C.T.A. Pillai Addi Collector of Customs : AIR1961Bom48 it was held that the rule of natural justice in quasi-judicial proceedings require that an opportunity should be given to a person to cross-examine those who have made statements, which are to be used against him. Vide also Narendra Chanira Das v. Collector of Central Excise and Land Customs AIR 1962 Assam 145. In that cast the enquiring Officer gathered secret information and did not give any opportunity to the petitioner to cross-examine them.
In the present case the petitioner did not take the objection in his petition at all. On the other hand he alleged in paragraph 9 of his petition that at the request of the petitioner the first respondent informed him that Shri M.K. Punshi, I.R.S., Assistant Collector, Central Excise, with Headquarters at Shillong informed the petitioner as can be seen from Ext. A-8 that he would hold enquiry on 4.2.1960 in the Office of the Central Excise at Agartala. The petitioner stated in para 10 of his petition that thereafter on 4.2.1960 Shri Punshi, I.R.S., the Assistant Collector actually held the proposed enquiry in the office of the Central Excise at Agartala in which the petitioner was represented by his Advocate Shri J. Choudhury and pleader Shri H. Dutta, that 4 witnesses were examined and cross-examined and that out of them one was the second respondent and the other three witnesses were the witnesses to the search. He further stated in para 10 of his petition that at the request of the petitioner the first respondent supplied him with carbon copies of the depositions of the witnesses as per Ext. A-9 (to which copies of the depositions are attached) and that the first respondent also informed the petitioner as per Ext. A-10 that the original depositions were with him in his office. If the petitioner was not supplied with the copies of the depositions of the witnesses examined in-chief, it is impossible to believe that his advocates cross-examined them without any material. The contention of the learned Counsel for the petitioner that the Advocates cross-examined the witnesses without having the chief-examination before them and with reference to some facts from their memory cannot at all be believed. If the petitioner was not given copies of statements of the witnesses, then he would have mentioned the same as a ground in the Writ Petition and it would have been a very valid ground.
19. With regard to the fourth finding of the first respondent, mentioned in para 13 of this judgment, the contention of the learned Counsel for the petitioner was that the petitioner was not a person connected with the smuggling of the goods within the meaning of Section 167(8) of the Sea Customs Act that the offence of smuggling, if any, was completed when the goods crossed the border between East Pakistan and India and that the mere possession of the goods by the petitioner is not an offence under Section 167(8) of the Sea Customs Act. In support of this contention he relied on a number of decisions. In S. Balbir Singh v. Collector of Central Excise and Land Customs AIR 1960 Punj 488 it was held that under Section 167(8) or the Sea Customs Act the penalty can be levied only if the person has been concerned in the offence of importation or exportation of goods, which are prohibited or restricted and that in the absence of such finding on the record, the order imposing the penalty cannot be sustained. In Gopal Mavaji Parab v. T.C. Seth AIR 1960 Bom 478 it was held that the offence under Section 167(8) of the Sea Customs Act is complete when the goods crossed the customs barrier and that any subsequent attempt to destroy evidence of smuggled good does not form part of the offence as mentioned in Section 167(8) of the Sea Customs Act.
In Sitaram Agarwalla v. Additional Collector of Customs, Calcutta : AIR1960Cal676 it was held that the expression 'to be concerned in' in Section 167(8) Col. 3 of the Sea Customs Act means 'to take part in or to be related to' and that, therefore, if there is no material to show that a person who is about to by or deal with smuggled gold took any part in the importation of it, then he cannot be penalized under Section 167(8) of the Act. But, it was further held that if anybody takes part in the processes leading to the import into or export from India, then he is a person 'concerned' in the offence of importing or exporting the goods and that he is liable to be penalized under Section 167(8) of the Act.
In Devichand Jestimall and Co. v. Collector of Central Excise : AIR1960Mad281 it was held that in the absence of evidence to show that a person imported the gold. mere possession of it, which has been unlawfully imported into India cannot be dealt with under Section 167(8) of the Sea Customs Act.
In Radha Kishan Bhatia v. Union of India : 1965CriLJ154 it was held that the requirement of the expression 'concerned in any such offence' under Section 167(8) of the Sea Customs Act is that the person to be penalized must be interested or involved or engaged or mixed up in the commission of the offence referred to in the first column of Section 167(8) of the Act. that the offence must be at a stage prior to the completion of the offence of illegal importation of goods as the offence is complete when the goods have crossed the Customs frontier and that, when the goods have been imported, any subsequent interest cannot bring the person showing such interest within the purview of Section 167(8) for the purpose of the imposition of the penalty. In the present case, as can be seen from Ext. B-14. the petitioner paid a sum of Rs. 50,000 to one Santosh Kumar Das of Kandirpar village in Tipperah District in East Pakistan and the latter purchased the smuggled gold and delivered the same to the petitioner. Both of them belonged to the same District of Tipperah in East Pakistan. The petitioner, thus, caused the gold bars purchased and smuggled into India. So, he was 'concerned in the offence of smuggling' and the above decisions, therefore, equally apply to this case.
20. The learned Counsel for the petitioner further argued that there is no finding of the first respondent in Ext. A-14 that the petitioner was the 'person concerned' under Section 167(8) of the Sea Customs Act and that therefore the order is illegal. He relied or AIR 1960 Punj 488 and : 1965CriLJ154 which have been already referred to. In para 11 of Ext. A-14 the first respondent stated that the petitioner admitted having brought the gold in question from Pakistan, but that he did not produce any documentary evidence to show the licit import of the gold and that therefore illicit import of the gold was established. In para 12 of the order he passed the impugned order. So, there is no force in the contention of the petitioner’s counsel that the first respondent did not specifically find that the petitioner was a 'person concerned' in the offence.
21. As can be seen from Ext. A-11 the petitioner was asked by the second respondent to appear in his office at Agartala at 9 A.M. on 28.11.1959 to be present when samples of the seized gold were to be taken for analysis. Ext. A-12 shows that the petitioner requested the first respondent to give him a copy of the report of the expert, but that not copy was given to him. The first respondent made a wrong statement in paragraph 6 of his order Ext. A-14 that the petitioner requested him to give him a copy of the report of the Expert only in case the Expert's opinion was to be used against him. This observation is incorrect. Nowhere did the petitioner mention in his letter that he should be given a copy of the report of the Expert only if it was to be used against him. The petitioner stated in the petition that adverse inference should be drawn against the respondents from their conduct in suppressing the report and that, therefore, the gold bars were not of Pakistan origin. But, the respondent filed Exts. B-2 to B 10 Assay Certificates issued by the Dy. Master of the India Government Mint at Alipore, which show that the Expert gave his opinion only about the fineness of the gold bars. They mention that the gold sent to the Expert bore 'Alipore Mint' Marks. To find out whether the gold bars really bore 'Alipore Mint' Marks, I directed the respondents to produce the gold bars into the Court. The sealed bag was brought by the respondents from the State Bank of India and was opened by the S.D.M. Sadar Agartala in the open Court in the presence of all concerned. On an examination of the gold bars, it was found that there are no marks on them at. all. So, the statements of the Master of the Mint in Exts. B-2 to B-10 that the gold bars bore 'Alipore Mint' Marks refer to only the sample pieces and not to the gold bars as a whole. In view of Ext. B-14, it follows that the gold bars in question were caused to be imported by the petitioner from Pakistan into India.
22. Thus, a thorough scrutiny of the evidence and the contentions of the respective parties do not show that there is any error apparent on the face of the record. The common law Writ of Certiorari in England, which is called as the order of Certiorari in India, is not meant to take the place of an appeal. Its purpose is only to determine on an examination of the record whether the inferior Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirement of the law, which it is meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but are merely errors in appreciation of documentary evidence or affidavits or errors in drawing inferences or omission to draw inferences or errors which a Court sitting as a Court of appeal could have examined and corrected, then there is no case for the exercise of the jurisdiction under Article 226 of the Indian Constitution. Vide Parry and Co. Ltd. v. Commercial Employees Association Madras : (1952)ILLJ769SC ; G. Veerappa Pillai v. Raman and Raman Ltd. : 1SCR583 ; Ebrahim Aboobakar v. Custodian General of Evacuee Property : 1SCR696 ; Hari Vishnu Kamath v. Ahmad Ishaque : 1SCR1104 and Nagendra Nath Bora v. Commr. of Hills Division and Appeals : 1SCR1240 . In this view, the (depositions of the witnesses examined in the enquiry and considered by the first respondent cannot be scrutinized as in the case of an appeal to judge whether the appreciation of the evidence by the first respondent is proper or not.
23. Nothing in this judgment should be taken by the S.D.M. as expressing any opinion on the merits of the case and he should try the Criminal case independently. The several points had to be discussed in this judgment because they were argued before me. There are some disputed facts, which are left open to be considered by the S.D.M.
24. In the result, the petition is dismissed and the rule is discharged. But, under the circumstances of the case, I direct the parties to bear their respective costs.