(1) buth these appeals arise from the decision off Mahajan, J. In Civil Writ Petition, No.300-D of 1958 on the file of the Delhi Circuit Bench of the High Court of Punjab. That was a petition presented under Article 226 of the Constitution by Beopri Ml, the appellant in L.P.A, No.33-D of 1965, seeking to get quashed the order of the Collector of Central Excise and land Customs. New Delhi made on July 25, 1958, in C.No.VIII (hrqs) DLH/10/26/58/56774 on his file where in the Collector nto only confiscated the sum of Rs.56,225-6-0 seized from two G.R.P. constables Jethusingh and Hari Singh on January 3, 1957 but also imposed a penalty of Rs.1,00,000 on Beopri, Mal and Rs.1000 on each of the two remaining accused Jethusingh and Hari Singh
The learned single judge sustained the order of confiscation and quashed that order imposing penalty on Beopri Mal in L.P.A. No.33-D, of 1965 Beopri Mal challenges the correctness as well as the legality of the order the learned single judge sustaining the confiscation of Rs.56,225-6-0. In L.P.A. No.48-D of 1965, the Union of India and the Collector of Central Excise and Land Customs, new Delhi, seeks to get rid of the order of the learned single judge quashing the order relating to penalty.
(2) In this Court, Sri B.R.L. Iyengar who appeared for Beopri Mal by and large did nto contest the correctness of the facts found by the collector. But his submission was that on the basis of the facts found by him, there is no bias for his conclusion that Jethusing and Hari Singh were attempting to export Indian Currency to Pakistan, His further contention was that even if it is held that the collector was justified in concluding that Jethusing and Hari Singh were attempting to export Indian currency to Pakistan in that event also, no order under Section 167(8) of the Sea Customs Act, 1878 (to be hereinafter referred to as the Sea Customs Act) could have been passed.
(3) the facts found by the Collector, the correctness of which was nto disputed before us, are these: Acting on reliable information, the Superintendent, Land Customs, Barmer, organized a raid on the incoming Jodhpur Barmer train on the early morning of January 3, 1957. During that raid, he recovered Rs.56,225-6-0 from the two G.R.P. constables Jethusing and Hari Singh. He also recovered from them a multi-pocket jacket containing a number of account slips and letters. On the basis of the information gto from those slips, raids were carried out on the business and residential premises of Beopari Mal. During those raids, incriminating articles were recovered which showed that Beopari, Mal in collusion with the two constables mentioned above was smuggling gold from Pakistan and selling the same in India. On the basis of the above facts, the Collector, came to the conclusion that the constables were attempting to clandestinely export Indian currency to Pakistan. He accordingly ordered the confiscation of the currency seized under Section 23-A of the Foreign Exchange Regulation Act, 1947, red with Section 19 and Section 167(8) of the Sea Customs Act
(4) The principal question for consideration is whether on the facts found by the Collector, there was any basis for concluding that the constables mentioned above were attempting to smuggle Indian currency into Pakistan. It may be ntoed that Barmer is about 80 miles from the Pakistan border. From the records we get it that Beopari Mal is residing at Barmer. Hence it is nto at all unlikely that the constables were getting back the sale records of the smuggled gold after selling the same, to be paid over to Beopari Mal at Barmer. This aspect was completely lost sight of by the Collector.
On the question whether on the material before him, the Collector could have drawn the inference that the constables were attempting to export Indian currency into Pakistan, this is what the learned Judge observed:
'The question that really presented considerable difficult is whether the sale-proceeds were brought from Jodhpur to Barmer. They were recovered at Barmer. The persons carrying the same were nto going further than Barmer. There is no evidence at all on the records excepting a conjecture on the basis of which the collector proceeded that the proceeds being the price of the smuggled gold were naturally meant for transmission to Pakistan from where the gold had been smuggled. The collector arrived at this finding on the ground that the gold being smuggled gold its price had necessarily to go to Pakistan from where it had come. He lost sight of the possibility that its price could very well have been paid before it crossed over to India.
(5) We are fully in agreement with the above conclusion of the learned single Judge. Our attention has nto been drawn to any material on records from which the Collector could have drawn the interference that there was any attempt to smuggle Indian currency into Pakistan. It is more likely that the rice of the smuggled gold had been paid even before the gold was brought in to India. At any rate, that is one of the possibilities. That being so, the conclusion of the Collector that Indian currency was being attempted to be smuggled into Pakistan is based on no evidence.
(6) Even after coming to the conclusion that the Collector's finding that there was any attempt to smuggle the currency seized into Pakistan is unsustainable the learned Single Judge still upheld the order confiscating that currency. In that regard, this is what the learned Judge observed.
' If smuggled gold was recovered the Collector could have, under the law confiscated the same. There seems to be no reason why the money which represents the proceeds of their gold cannto be confiscated..'
We think that this conclusion ignores the language of section 167(8) of the Sea Customs Act. That provision provides that if any goods the importation or exportation of which is for the time being prohibited or restricted by or under Chapter Iv of the Act, be imported into or exported from India contrary to such prohibition or restriction such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to pay in penalty nto exceeding three times the value of the goods, or nto exceeding one thousand rupees. That provision to the extent it is material for our present purpose empowers the authorities to confiscate any goods which are attempted to be exported the exportation of which has been prohibited. Now that we have come to the conclusion that here is no evidence to hold that the currency seized was being attempted to be exported out of India, assuming the world 'goods' found in Section 167(8) of the Sea customs Act includes currency, we see no authority in law for forfeiting that currency. What section 167(8) of the Sea Customs Act authorises is the seizure of the very goods which are attempted to be exported or imported. That section does nto permit the forfeiture of the value of the 'goods ' smuggled into India.
That position is put beyond doubt by the decision of the Supreme Court in Radha Krishnan Bhatia v. Union of India, Civil Appeal No.777 of 1962: : 1965CriLJ154 . The learned single judge while referring to that decision in the course of his judgment, for setting aside the order of the Collector imposing penalty on Beopri Mal failed to take ntoe of the fact that the rule laid down in that decision directly bears on the question of confiscation of the currency. To repeat what can be confiscated under section 167 (8) of the Sea Customs Act is the every goods which are attempted to be exported from India and nto their money value. As mentioned earlier, we are in agreement with the learned single Judge that on the material on records, there is no basis what so ever for concluding that there was any attempt to export out of India the seized currency. From that it follows that the case before us does nto fall within the scope of Section 8(2) of the Foreign Exchange Regulation Act, 1947. thereforee, the provisions off Section 23-A of that Act are nto attracted. If that is so , 19 of the Sea Customs Act is nto attracted to the facts of the present case and consequently recourse cannto be had to section 167(8) of the said Act.
(7) As observed by K.T. Desai, J in Valimahomed Ghulamhussain Sonawala & Co. V C.T.A. Pillari, : AIR1961Bom48 , the right to confiscate smuggled goods under Sec.167(8)does nto carry with it the right to confiscate unsmuggled goods, the words 'goods' appearing in Section 167(8) cannto be interpreted to mean similar goods; it is nto open to the customs authorities to confiscate similar goods even though they may be of the same quality, bulk and value, the worlds 'such goods 'mean the very goods which have been smuggled.
(8) Shri B.R.L. Iyengar, the learned counsel for Beopari Mal urged that the expression 'goods' found in Section, 167(8) of the Sea Customs Act, does nto include Indian Currency. In this connection, he invited our attention to the fact that the expression 'goods' remained undefined in the Sea customs Act. 1878, though the same is defined in the Customs Act. 1962. According to him on a reference to the preamble to that act as well as to the scheme of that Act, it would be seen that the expression 'goods' found in Section 167(8) do nto include Indian Currency. In this connection he invited our attention to sections 18 to 22, 29 to 31, 34-A, 37 and 38. In view of our above conclusion, that the charge of attempting to smuggle Indian Currency to Pakistan is nto established, we have nto thought it necessary to go into the contention.
(9) It was next urged on behalf of Beopari Mal that on a combined reading of Sections 23 and 23-A of the Foreign Exchange Regulation Act, 1947 it would be seen that cases falling within Section 23 the present case does fall within Section 23 re taken out of the scope of Section 23-A. thereforee, recourse cannto be had to the provisions of the Sea customs Act. This contention was ntoiced by the Supreme Court in Sewpujanraj Indrasanraj Ltd v Collector of Customs, : 1958CriLJ1355 . But the supreme court left that question undecided in that case. In view of our earlier findings that the charge leveled is nto established it is nto necessary to pronounce on that contention.
(10) Shri Shankar the learned counsel for the union of India and the Collector of Central Excise and Land customs is right in his contention that the learned single judge while pronouncing on the legality of the penalty imposed overlooked the fact that the charge against Beopri Ml was that he in collusion with the two Railway constables was attempting to export Indian Currency to Pakistan and nto that they had smuggled into India gold from Pakistan. While setting aside the orders relating to penalty, the learned single Judge proceeded on the basis that penalty was imposed on the ground that Beopari mal and tow tohers had smuggle gold from Pakistan into India. That was nto the ground on which the penalty was imposed. The penalty was imposed on the ground that Beopri mal in collusion with two toher constables was attempting to smuggle Indian Currency into Pakistan. If we had come to the conclusion that the charge leveled against them has been established then there would have been no difficulty in upholding the penalty imposed. But as we have come to the conclusion that there is no basis for the findings that Beopari Mal and two tohers were trying to smuggle Indian currency into Pakistan, the question of imposing penalty does nto arise
(11) For the reasons mentioned above, we hold that the entire order of the Collector, was without the authority of law. In view of our above conclusion we allow L.P.A.NO.33-D above conclusion we all L.P.A.NO. 43-D of 1965. But on the material before us it is nto possible to conclusively decide as to who is the lawful owners of the currency confiscated. As seen earlier, the amount in question was seized from Jethu Singh and Hari Singh. They are nto before this court. It is true that at one stage they did nto say that the amount in question was handed over to them by one Daya Ram saying that it belonged to Beopri Mal. That statement is nto conclusive as the ownership of the amount in question. Hence the question of title to the currency seized has to be decided afresh by the Collector off central Excise and land Customs New Delhi.
(12) On the facts of this case, we think that it is appropriate to direct the parties, to bear their won costs buth in these appeals, as well as in the writ petition. As mentioned earlier it was nto disputed before us that the currency seized represents the sale proceeds of smuggled gold
(13) Orders Accordingly.