1. This appeal is directed against the order of the Additional Collector of Customs, Madras, referred to supra, imposing a penalty of Rs. 25,000/- on the appellant under Section 112 of the Customs Act, 1962.
2. The brief facts relevant for the appeal are as follows. The officers of the Intelligence Branch of the Madras Custom House, on the basis of information, intercepted on 11-12-81 two persons, Richard Beale and his girl friend Phillippa Anne Duke, who arrived at Madras by vessel m.v.Chidambaram. Richard Beale was in possession of a car No. 57537-15A for a Mercedes Benz van brought by him in the said vessel. The said Benz van was examined by the authorities which revealed concealment of Sony cassette tapes, National electric condenser microphone, integrated circuits, car parts and other electronic spare parts. Since the goods kept concealed were not declared by Richard Beale and were attempted to be smuggled into India they were seized under mahazar as per law attested by witnesses. On the basis of the statements recorded from Richard Beale, Phillippa Anne Duke, Paul Duncal Zawadzki and on investigation proceedings were instituted against the appellant as per law which ultimately culminated in the impugned order now appealed against.
3. The learned Counsel for the appellant made various submissions assailing the impugned order and since the appeal can be disposed of on a preliminary point, I do not feel called upon to go into other questions.
4. It was urged that the Additional Collector who has passed the impugned order accorded sanction under Section 137(1) of the Customs Act, 1962 for prosecution of the appellant before the criminal court for an alleged offence under Section 135(1) (a) of the Act during the pendancy of the adjudication proceedings and accordingly, a criminal complaint was filed against the appellant and others in C.C. 2112/82 before the Chief Metropolitan Magistrate, Egmore, which eventually ended in an order of acquittal before the completion of adjudication.
The appellant by his petition before the adjudicating authority dated 29-3-1982 by his petition before the adjudicating authority, viz. the Additional Collector, had accorded sanction for criminal prosecution of the appellant during the pendancy of the adjudication proceedings, the adjudicating authority had prejudged the issue against the appellant and as such in conformity with the principles of natural justice and legal fairness, the adjudication of the appellant should be by a different adjudicating authority. The plea of the appellant was rejected by the authorities by a communication dated 20-7-1982 sent by special messenger to the appellant's Advocate. In response thereto, the appellant participated in the adjudication proceedings "without prejudice to his rights and contentions".
5. I find from the records that the impugned order of adjudication has been passed by the Additional Collector on 18-9-82. The Additional Collector has admittedly accorded sanction for prosecution of the appellant before the criminal court for an alleged offence under Section 135(1) (a) of the Act during the pendancy of the adjudication proceedings and a criminal prosecution was launched against the appellant accordingly in the Court of Chief Metropolitan Magistrate, Egmore in C.C. No. 2112/82 which resulted in acquittal on 9-7-1982. It is settled proposition of law that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to persons against prosecutions and without a valid and proper sanction, the very institution of a prosecution and congnizance of the same by court would be completely without jurisdiction and ab initio void. Courts have repeatedly emphasised the importance and sanctity of "sanction" in law and explained how there must be evidence on record to show that the facts constituting the offence were actually placed before the sanctioning authority and the sanctioning authority applied its mind and accorded sanction.
Application of mind by the sanctioning authority into the facts and materials constituting the offence is held sine quo non and condition precedent before according sanction and prosecution under law is enjoined to prove the same by evidence, direct or by evidence aliened showing the facts placed before the sanctioning authority and satisfaction arrived at by it. I am at pains to highlight the importance of sanction because the adjudicating authority in the instant case as per law should have had the entire facts before him and critically evaluated and sifted the same by application of mind before according sanction for criminal prosecution. In such a situation when the adjudicating authority has on application of mind reached a conclusion that the appellant is guilty of an offence under Section 135(1) (a) of the Act and set the law in motion for a prosecution, it would not be proper for the Department to contend that such a view taken by the adjudicating authority in respect of criminal prosecution cannot be said to be a pre-conceived view which would bias the impartial quasi-judicial mind of the same authority in the adjudication. A full Bench of the Madras High Court has highlighed the doctrine of Audi alter am portem holding that natural justice has acquired legalistic and artistic connotation by passage of time and is invoked in proceedings before judicial and quasi-judicial tribunals. As principles of natural justice revolve round fairplay in action, justice should not only be done but must seem to be done. A letter of the learned Counsel for the appellant dated 29-3-1982 to the authorities pleading that adjudication should be by a different authority is clearly indicative of a genuine apprehension in the mind of the appellant that he would not get a fair deal by reason of a pre-conceived bias on the part of the adjudicating authority. Since I feel that justice must not only be done but must manifestly seem to be done and non-observance of this rule of natural justice by itself would cause prejudice to the appellant without any independent proof of prejudice, the impugned order is not sustainable.
6. I, therefore, set aside the impugned order on the above preliminary point without going into the merits of the appeal or other issues and remit the matter back for readjudication by a competent authority other than the . officer who has passed the impugned order as per law, and the adjudicating authority would be competent to take into consideration the materials and evidence already on record and such other materials relevant and necessary that may be produced by the appellant or the Department for disposing of the case.