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Deb Kanta Roy Vs. E.S. Krishnamurty, Member Central Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 382D of 1959
Judge
Reported in4(1968)DLT693
ActsDrugs Rules, 1945 - Rule 40; Drugs and Cosmetics Act, 1940
AppellantDeb Kanta Roy
RespondentE.S. Krishnamurty, Member Central Board of Revenue and ors.
Advocates: D.K. Kapur and; B. Kishore, Advs
Cases ReferredBhagat Raja v. Union of India
Excerpt:
customs - importation - rule 40 of drugs rules, 1945 and drugs and cosmetics act, 1940 - petitioner importer of certain drugs - drugs nto properly labeled as required under act - breach of undertaking in importing goods admitted by petitioner - penalty imposed upon petitioner by collector of customs reduced by appellate authority (aa) in view of admissions - orders of government and aa challenged in present petition on ground of absence of reason - in view of circumstances aa and government could nto have given any reason for order passed by them - matter already considered by aa - government rightly did nto interfere - petition dismissed. - - the petitioner also agreed in the said guarantees to pay any additional penalty if imposed by the assistant drugs controller, and that in the.....t.v.r. tatachari, j. (1) this writ petition was filed by deb kanta roy, who carries on business under the name and style of d.k roy and company at calcutta, praying that a suitable writ or direction or order may be issued quashing the orders dated 10th july 1958 and/or 28th april, 1959 passed by the government of india, ministry of finance, new delhi and directing that no effect be given to the said orders. the first respondent in the writ petition is e.s.krishnamurthy member, central board of revenue. new delhi and the second respondent is the union of india. (2) the facts which led up to the filing of this writ petition are stated as under. under a drug import license n. 3352, dated 22nd november, 2955 (annexure a), issued by the drugs controller, india, new delhi, in favor of the.....
Judgment:

T.V.R. Tatachari, J.

(1) This writ petition was filed by Deb Kanta Roy, who carries on business under the name and style of D.K Roy and Company at Calcutta, praying that a suitable writ or direction or order may be issued quashing the orders dated 10th July 1958 and/or 28th April, 1959 passed by the Government of India, Ministry of Finance, New Delhi and directing that no effect be given to the said orders. The first respondent in the writ petition is E.S.Krishnamurthy Member, Central Board of Revenue. New Delhi and the second respondent is the Union of India.

(2) The facts which led up to the filing of this writ petition are stated as under. Under a Drug Import license N. 3352, dated 22nd November, 2955 (Annexure A), issued by the Drugs Controller, India, New Delhi, in favor of the petitioner, the petitioner indented and imported into India a drug known as procaine pencilin, G Crystalline used for aqueous infection and described in the aforesaid license as 'Jenacillin A' from East Germany. The said drug was manufactured by one Messrs Veb Jena, pharam, Jena East Germany. The said drug is listed under Schedules C and C1 drugs of the Drugs Rules, 1945, framed under the Drugs Act, 1940.

(3) On 2nd April, 1956, two consignments of the said drug (described in the writ petition as goods), arrived at the Calcutta port. Before clearance of the goods, representative samples were drawn from the consignments in the presence of the petitioner's representative, and sent, through the said representative of the petitioner to the Assistant Drugs Controller in the Customs House duly sealed for verification whether the requisite provisions of the Drugs Act, 1940, and the Drags Rules, 1945, had been complied with. According to the respondents, on examination of the goods, it was found that the vials were individually packed in an outer carton which also container an aqueous diluent, and it was further found that the Jenacillin 'A' vials (containers) were nto labelled with the Import license No. and with the proper name and composition. The diluents 'aqua bidistillata' were also nto labelled with the Import license No. or the Batch Nos., and the diluents were also nto covered by the Import License.

(4) As the goods were nto properly labelled as required under the Drugs Act, 1940, and the rules made there under, the petitioner was allowed to clear the goods on the execution of two guarantees (one against each consignment). They are Annexures B and C (R 1 and K 2) executed on 18th April 1956 and 19th April, 1956 respsctively In the said guarantees the petitioners undertook (1) to stamp the vials and containers with the Drug Import license No. and proper name and composition respectively, (2) to produce the Drug Import license No. 3352, and to produce samples duly stamped for approval of the Assistant Drug Controller, Calcutta, within thirty days, (3) nto to sell or toherwise dispose of the goods without obtaining; the prior permission from the Assistant Collector of Customs, and (41 to pay any fine or penalty that may be imposed by the Customs authorities for importing the goods in contravention of the Drugs Act and Rubs. The petitioner also agreed in the said guarantees to pay any additional penalty if imposed by the Assistant Drugs Controller, and that in the event of his failure to comply with the aforesaid undertakings, he would pay on demand any additional penalty that may be imposed by the Costoms authorities and be liable for punishment as provided for under the Drugs Act, 1940, and the Rules there under. According to the respondents, the said guarantees were gto executed by the petitioner with the sole intention of saving the petitioner from incurring further contingent expenses which he would have incurred if the goods had nto been allowed clearance. On the toher band, according to the petitioner, he was nto informed, nor did be have any opportunity of ascertaining any specific defect in the labelling of the said goods. He alleged in the writ petition that in view of the fact that the drug was packed in ampoules and enclosed in a sealed container along with aqueous diluent in phials, it was nto possible to ascertain the defect if any, that one ampoule of the drug and one phial of the diluent were contained in each sealed cardboard container for the purpose of retail sale, and that if the container was broken open to extract the drug, the said drug would have become unsaleable in view of the Drugs Act, 1940, and the Rules framed there under. It was stated in the writ petition that he was placed in a predicament as the bulk of the said goods was imoorted by him as the agent of the toher importers, and as the very nature of the goods was such that the continued detention thereof in the Customs' sheds would have ment their ttoal damage and loss, and that consequently he was complelled to execute the two documents ctoaining the guarantees as dictated by the Assistant Collector of Customs for Appraisement, Calcutta.

(5) The petitioner further alleged in the writ petition that he discovered later that the under takings and stipulations contained in the documents, Annexures B and C were void, ultra virus and beyond the powers of the Customs authorities under paragraph 40 of the Rules made under the Drugs Act, that compliance with the said undertakings and stipulations would amount to the commission of a criminal offence under Section 27 and toher Sections of the Drugs Act 1940, punishable with three years imprisonment and/or fine, and that the said stipulations and undertakings were thus void and incapable or performance, and the petitioner was nto bound to carry out any of the said undertakings. The petitioner also stated that even if some of the said undertakings are legal, each of the said undertakings being in consideration for the tohers, the said undertakings were all illegal, invalid and incapable of enforcement or compliance.

(6) The said goods were delivered to the petitioner on 24th April, 1956. It is stated in the writ petition that the petitioner was surprised to find that the labelling was in accordance with the requirements of the Drug Rules, and that the defect mentioned in the undertaking given by him could nto be remedied by him as it would be in contravention of the Rental Drug Rules 1976 which required the sale of the drug to be in original unoppened packages, and also in contravention of the Drugs Act itself, and the opening of the contained would render the drug unsaleable.

(7) According to the petitioner, on b's above discovery, he wrtoe to the Assistant Collector of Customs for Appraisement, Calcutta, on 23rd April, 1956 (Annexure D) in which be stated that 'On opening the consignments we find that the outer cartons of Jenacillin 'A' are sealed by the Manufacturers for guarantee of authenticity. As the goods are the very first importation and are ttoally unknown in our ma'kets, any tempering with the seals will grievously (affect) its sales particularly in consideration of the vitally important affect nature of the medicine. Under this situation, and in view of that the outer sealed Cartons have contained the full requirements of the Drugs Rules. We pray that we may be exempted from breaking the seals open and mark the inside btotles with our Drug license Number.' According to the respondents, no such letter was received by the Custorns authorities.

(8) On 30th April, 1956, the Assistant Collector for Appraisement, sent a ntoice (Annexure E) to the petitioner stating that the goods contravened the requirements under the Drugs Act, 1940 and the Rules framed there under, as they were found on examination nto to be properly labelled, that the importation of drugs with such defects was prohibited under Section 10 of the Drugs Act, 1940, read with Section 18 of the Sea Customs Act, 1878. that the goods which wire thus liable for confiscation were, however, released on the petitioner executing guarantees undertaking to remedy the defects prior to sale and to pay any penalty that may be imposed for the violation of the requirements of the Drugs Act, that the petitioner should thereforee show cause why a penalty should nto be imposed upon him under Section 167(8) of the Sea Customs Act for importation of prohibited drugs, and that all conoborative evidence in support of his Explanationn may also be produced with his Explanationn within fifteen days. A similar ntoice (Annexure F) was issued on 5th May, 1954 in respect of the second consignment. It may be stated here that the two ntoices (Annexures E and F) were printed forms and a clause contained therein relating to the return of the goods was struck off. In view of the same, the petitioner alleged in the writ petition that he was thus no longer called upon to remedy the defects or return the goods, because the clause in the ntoice relating to the return of the goods was deleted, and that in the bona fide belief that he was no longer called upon to fulfill the undertaking as regards the rectification of the defects, and because of the pressure by the various Licensees on whose behalf the indents were made, he was compelled to hand over the goods to the various Licensees, and he also proceeded to dispose of his own goods between 18th June, 1956 and 26th June, 1956.

(9) In reply to the said show cause ntoices, the petitioner wrtoe a letter (Annexare R4) to the Assistant Collector of Customs far Appraisement on 23rd May, 1956, in which he stated that be had duly advised his Principals to adhere to the requirements of the Drugs Rules in respect of the importations in question, that as his supply was obtained from a new source and his Principals exported the product for the first time, they, inspire of his direction, 'have somehow (ailed to execute the details in complete order obviously due to a lack of grasping them properly,' and that 'as deviation is only in a slight degree', the Collector may be pleased in the special circumstances of the case 'to condone the irregularity inadvertently caused', and exempt the petitioner from the consequences of the same.

(10) On 4th July, 1956, the Assistant Collector of Customs wrtoe a letter to the petitioner acknowledging the receipt of the letter (Annexure R4) dated 23rd May. 1956, and staling that the time stipulated in the letters of guarantee (Annexures B and C) dated l8th April, 1956 and 19th April, 1956 executed by the petitioner for rectifying the labelling defects and submitting the stock for ins lection by the Assistant Drugs Controller had expired long ago, and that the petitioner should forthwith rectify the labelling defect and submit the stock for the approval of the Assistant Dings Controller within fifteen days, failing which action would be taken against the petitioner in terms of the guarantees.

(11) In reply to the above-mentioned letter, the petitioner wrtoe a letter (Annexure R3) on 13th August, 1956 which runs as under:- 'Dear Sir, We beg to acknowledge the receipt of your letter No. S37G-132- 133/56A of 6th July received by us on 11th July, 1956. We regret very much to inform you that owing to some unsurmountable difficulties and unforeseen circumstances we had been unnable to rectify the labelling defect mentioned in your aforesaid letter. We beg, however, to recall you in this connection to our letter of 23rd May, 1956. It will be evident from the documentary papers enclosed to that letter that the irregularity occurred inspire of our best attentions and endeavors against any lapses. In any case, on obtaining the delivery, we found that the ilregularity in question could nto be set right without breaking open the outside cartons sealed with the Manufacturers' original labels, which invariably were to have rendered the whole consignment unacceptable to the con. sumers or trade the goods being th' first imputation and nto known at all. We accordingly brought the matter immediately to your ntoice and prayed for a consideration to waive the procedure in this instance in our favor. Considering at the same time that the carton lables had been in ful conformity with the Drugs Rules and, that only a minor detail had been lacking on the vials itself, we greatly hoped that our praycrs would be granted until we were asked in your letter under reply to implement our undertaking, about seven weeks after our appeal. As we are nto in a position any more to rectify the delect owing to developments stated above, we fervently request you for a sympathetic consideration, and in view that the biunder has been coonmitted by us through lack of a proper realisation of the issue, we pray for clemency.

(12) It is stated in the writ petition that the petitioner addressed a similar letter to the Drugs Controller, New Delhi, on 12th September, 1956. Bat a copy of the same has nto been annexed to the writ petition.

(13) On 8th March, 1957, the Assistant Collector of Customs informed the petitioner by a letter requiring the petitioner to appear before him on 12th March, 1957. It is stated in the writ petition that the said letter was delivered to the petitioner subsequent to 12th March, 1957, and he could nto thereforee appear before the Assistant Collector of Customs on 12th March, 1957.

(14) On 23rd March, 1957, antoher letter (Annexure H) was written by the Assistant Collector of Customs to the petitioner stating that the 'personal hearing' granted to the petitioner on 12th March, 195/ was nto availed of by him, that the petitioner was, however, advised to submit his ledger book or account books showing the receipt and disposal of the goods in question for purposes of verification within a a week, failing which the case would be adjudicated in terms of the guarantees and on the evidence on record. In pursuance of the said letter, the petitioner appeared before the Assistant Collector of Customs on 5th April, 1957 with his account books, and in confirmation of the same he wrtoe a letter (Annexure I) on the same date to the Assistant Collector of Customs in which he stated, inter alia, that the goods which were imported on behalf of different licensees were disbursed to them daring the third week of June, 1956, that the major portion of his own Imports were disposed of at the end of June, 1956, that before the said disbursements and disposal, he had written to the Assistant Collector of Customson 27th April, 1956, 23rd May, J956 and 13th August, 1956. and delivered on 12th September, 1956 a copy of a letter addressed to the Drugs Controller, India, that since 27th April, 1956 he had seen the Assistant Drugs Controller and the concerned Customs officials quite a number of times till June, 1956, and also thereafter, that he had informed the Assistant Collector of Customs that the licensees from whom the value of the respective goods was taken in advance were demanding the delivery of the goods, that he was anable to withhold the disposal of the goods on account of the said compelling circumstances and the financial hardships under which has found himself that 'tampering of the outside sealed cartons (in order to mark the inside vials with our Drug Import license Number which was the only defect in this instance under the Drugs Act)' was nto acceptable to the licensees, as the drug being a new introduction into the market would be unsaleable if the original seals were broken, that he was usable to retain, the goods because of pecuniary difficulties arising out of his small means, that the 'labelling defect' being of a minor nature he had requested for condo- ration of the defect, that be had already admitted his 'delinquency in the matter' on previous occassions and apologised for the same, and that in consideration of the fact that be misjudged the situition and committed an offence, which was regretted by him afterwards, he prayed for clemency and a lenient treatment.

(15) On 17th April, 1957, the Collector of Customs pas?ed an order (Annexure J) staling that importation of the drag in question without proper table was prohibited under section 10 of the Drugs Act, 1940, read with Section 18 of the Sea Customs Act, 1878,and the goods were liable to be confiscated, that the goods were, however released on execution of a guarantee by the petitioner under taking to fulfill the requirments of the Drugs Act prior to the disposal of the same and/or to pay on demand such penalty as may be imposed upon him for violation of the requirements of the Drugs Act, that Shri D. K. Roy, the proprietor of the petitioner firm appeared before the Assistant Collector for Appraisement for a personal hearing and admitted that the drugs, under guarantee were disposed of without fulfilling the terms of the guarantee and without: prior permission of the Customs authorities, but prayed for leniency, and that in view of the same he imposed a personal penalty of Rs. 14,000.00 on the importer (petitioner) under Section 167(8), Sea Customs Act, for contravention of Section 10 of the Drugs Act, 1940, read with Section 18 of the Sea Customs Act. The said penalty was directed to be deposited forthwith.

(16) Against that order, the petitioner filed an appeal before the Central Board of Revenae, which by its order dated 10th July, 1958 (Annexure K), allowed the appeal partly and reduced the amount of penalty to Rs. 7,000.00. Against that appellate order, the petitioner preferred a revision petition to the Government of India, but the same was rejected (Annexure L) on 28th April, 1959. Thereafter, on 25th May, 1959, a ntoice of demand was served upon the petitioner, and again a reminder (Annexure M), dated 7th July, 1959, was served upon him. The petitioner thereupon filed the present writ petition on 17th August, 1959 praying that the orders (Annexures J, K and L dated 17th April, 1957, 10th July, 1958 and 28th April, IS59) may be quashed.

(17) Under Section 9 of the Drugs Act, 1940, a drug shall be deemed to be misbranded if it is nto labelled in the prescribed manner. Section 10 of the said Act provides that no person shall import any misbranded drug. Section 11 of the Act provides that the law for the time being in force relating to sea customs and to goods, the import of which is prohibited by Section 18 of the Sea Customs Act, 1870, shall apply in respect of the drugs the import of which is prohibited under Chapter Iii of the Drugs Act, 1940, and that the Officers of Customs and Officers empowered under the Sea Customs Act shall have the same powers in respect of such drugs as they have under the Sea Customs Act. Rule 40 of the Drugs Rules, 1945, lay? down the procedure for import of drugs Sub-rule (1) of Rule 40 provides that if the Customs Collector has reason to doubt whether any drugs comply with the provisions of chapter Iii of the Act and the Rules there under he ma, and it requested by an officer appointed for this purpose by the Central Government shall, take samples of any drugs in the consignment and forward them to the Director of the Laboratory appointed for this purpose by the Central Government, and may detain the drugs in the consignment of which samples have been taken untill the report of the Director of the said Laboratory or any toher officer empowered by him on this behalf, subject to the approval of Central Government on such samples is received. The proviso to sub-rule (1) runs as under:- 'Provided that if the importer gives an undertaking in writing nto to dispose of the drags without the conceit of the Customs Collector and to return the consignment or such portion thereof as may be required, the Customs Collactor shall make over the consignment to the importer.' Sub-rule (2) of Ruls 40 states that if an importer who has given an undertaking under the proviso to sub-rule (1) is required by the Customs Collector to return the consignment or any portion thereof, he shall return the consignment portion thereof within ten days of receipt of the ntoice, Rule 41 runs as under : - '41(1) If the Director of the Laboratory appointed for the purpose by the Central Government or any toher officer empowered by him on this behalf, subject to the approval of the Central Government reparts to the Customs Collector that the samples of any drug in a consignment are nto of standard quality, or that the drug contravenes in any toher respect the provisions of Chapter Iii of the Act or the Rules there under and that the contravention is such that it cannto be remedied by the importer, the Customs Collector shall communicate the report forthwith to the importer who shall, within two months of his receiving the communication either export all the drugs of that description in the consignmant to the country in which they were manufactured or forfeit them to the Central Government which shall cause them to be destroyed : Provided that the importer may within fifteen days of receipt of the report make a representation against the report to the Custom? Collector, and the Customs Collector shall forward the representation with a further sample to the licensing authority, who after obtaining, if necessary, the repart of the Director of the Central Drugs Laboratory, shall pass orders thereon which shall be final. (2) If the Director of the Laboratory appointed for the purpose by the Central Government or any toher officer empowered by him on this behalf, subject to the approval of the Central Government reports to the Customs Collector that the samples of any drug contravene in any respect the provisions of Chapter Iii of the Act or the Rules there under and that the contravention is such that it can be remedied by the importer, the Customs Collector shall communicate the report forthwith to the importer and permit him to import the drug on his giving an undertaking in writing nto to dispose of the drug without the permission of the officer authorised in this behalf by the Central Government.' Section 167(8) of the Sea Customs Ait provides the penalties by way of confiscation and by way of payment of a certain amount in respect of offence under Sections 18 and 19 of the said Act.

(18) Shri D. K. Kapar, the learned counsel for the petitioner, contended firstly that in view of Rules 40 and 41 of the Drags Rules, 1945, the decision regarding the goods nto being in accordance with the Drugs Act was to be made by the Director of the Laboratory appointed in that behalf, that in the present case the report of the Director of the Laboratory appointed by the Central Government was nto obtained, and that it the procedure as laid down in Rules 40 and 41 had been followed, the alleged defect in the labelling of the vials would have been found to be absent, and the petitioner would nto have been subjected to any penally. The learned counsel argued that unless and untill the report of the Director of the Laboratory appointed by the Central Government was obtained, the goods in question could nto be regarded to have contravented the provisions of Chapter Iii of the Drugs Act. It is true that Rules 40 and 41 of the Drugs Rules lay down that if the Customs Colector has reason to doubt whether any drags comply with the provisions of Chapter Iii of the Act and the Rules franded there under, he may take samples of the said drugs in the consignment and forward them to the Director of the Laboratory appointed for that purpose by the Central Government. If the report of the Director of the appointed Laboratory is to the effect that the provisions of Chapter Iii of the Act or the Rules framed there under are contravened, the Customs Collector should communicate the report forth with to the importer who should within two months either export the drugs to the country in which they were manufactured or forfeit them to the Central Government. Under the proviso to sub-rule (1) of Rule 41 the importer may make a representation against a report of the Director of the Laboratory to the Customs Collector, who should forward the said representation with a further simple to the licensing authority, who after obtaining, if necessary, the report of the Director of the Central Drugs Laboratory, should pass orders thereon which shall be final On the toher hand, if the Director of the Laboratory appointed by the Central Government reports that the drugs in question contravene in any respect the provisions of Chapter Iii of the Drugs Act or the Rules framed there under, and that the said contravention is such that, that can be remedied by the importer, the Customs Collector should communicate the report forthwith to the importer and permit him to import the drug on his giving an undertaking in writing nto to dispose of the drugs without the permission of the officer authorised in this behalf by the Central Government. But, this objection that the report of the Director of the Laboratory appointed for the purpose was nto obtained, was nto raised in the writ petition or before any of the Tribunals, vis., the Customs Collector or the Central Board of Revenue or the Government of India. The respondents had, thereforee, no opportunity to state their answer to the said contentions in the written statement filed in opposition to the writ petition. The contention cannto, thereforee, be permitted to be raised for the first time at the stage of arguments. In the present case, when the drugs in question arrived at the Calcutta port, the Customs authorities took samples of the same and, after examination, raised the objection that the vials were nto properly labelled. Thereupon, the petitioner executed the letters of guarantee (Annexures B and C) in which he specifically under took to label the vials and the diluents in the proper manner, which clearly shows that he did nto dispute the defect pointed out by the Customs authorities. Even in his letter (Annpxure D, dated 27th April, 1956, which according to the respondents was never received by them, the petitioner stated merely that the outer cartons were sealed, and that thereforee he may be exempted from breaking the seals open and marking the inside btotles with his Drag license Number. He thus did rto dispute even in this letter the existence of the defect in the labelling as alleged by the Customs autorities. In his subsequent letters also, viz., Annexure R4 dated 23rd April 1956, Annexure R3 dated 13th August, 1956 and Annexure I dated 5th May, 1957, the petitioner admitted the existence of the defect-in the labelling, but asked only for condensation of the said defect and for exemption from the remedying of the said defect. Rule 40 merely provides that the Customs Collector may take samples and forward their to the Director of the Lrboratory. The language of Rules 40 and 41 suggested that the Customs Collector has to take samples and forward them to the Director of the Laboratory only when he has a doubt whether the drugs in question comply with the provisions of the Chapter Iii of the Drugs Act or when the same is disputed by the importer. If the defect is apparent on the face of it, and if the same is nto disputed by the importer, there is ntohing in Rules 40 and 41 which suggests that the Collector should still send the samples to the Director of the Laboratory for his report as to whether the drugs contravene the provisions of Chapter Iii of the Drugs Actor the Rules framed there under. The contention of the learned counsel cannto, thereforee, be accepted.

(19) Shri Kapur next contended that under the Sections of the Act as well as the Rules, it was the Collector of Customs that has to decide as to whether the goods in question are misbranded or nto, that in the present case it was the Assistant Collector of Customs for Appraisement that decided the matter, that the Collector of Customs only passed the order imposing the penalty, and that the petitioner was nto given an opportunity to appear before the Collector and explain to him that there was no defect in the labelling, and that the procedure in Rules 40 and 41 was nto compiled with. This contention also was nto specifically raised in the writ petition, and even toherwise, there is no substance in the same. Section 3(c) of the Sea Customs Act, 1878, defines 'Castoms Collector' as including 'every officer of Customs turn the time being in separate charge of a Custom House or duly authorised to perform all, or any special, duties of an officer so in-charge.' Section 6 of the said Act provides that 'the Central Government may appoint such persons as it thinks fit to be officers of Customs, and to exercise the powers conferred, and to perform the duties imposed by this Act on such officers.' Thus, the term 'Customs, Collector' includes every officer of Customs authorised to perform all or any special duties of an officer so in charge of a Custom House. In the present case, if the petitioner had raised this contention specifically in the writ petition, the respondents would have had an opportunity to show that the Assistant Collector of Customs for Appraisement was duly authorised to perform all the duties of a Customs Collector. Moreover, as already pointed out above, the petitioner did nto dispute the existence of the defect in labelling pointed out by the Customs authorities and, thereforee, there was no question of any decision by the Collector regarding the existence of the said defect. The defect was pointed out by the Customs autborities, the petitioner admitted the same, and he executed the letters of guarantee undertaking to remove the defect, and also nto to sell the goods without the previous permission of the concerned authority. He nto only did nto remedy the defect, but also sold away the goods without obtaining the permission, and thus did nto keep his own undertaking. As regards the submission that the petitioner had no opportunity to explain to the Collector, it has to be ntoed that he was given an opportunity to be heard in parson on 12th March, 1957. but he did nto avail of the same, though of course according to the petitioner the letter was received by him subsequent to the date. Barring his own statement, he has nto established that the letter was received by him after 12th March, 1957 by the Assistant Collector of Customs for Appraisement. In confirmation of what happened at that hearing, he wrtoe the letter, Annexure I, on the same date to the Assistant Collector of Customs. There is ntohing in this letter to show that he did contend before the Assistant Collector of Customs that the alleged dafect in labelling did nto in fact exist or that the report of the Director of the Laboratory was nto obtained or that the procedure laid down in Rules 40 and 41 was nto complied with. On the toher hand, the letter shows that he admitted the existence of the defect in labelling as well as the breach of his own undertaking in disposing of the goods without obtaining the previous permission, and that he pleaded mainly for clemency and a lenient treatment. It is true that in this letter as well as his previous letters, Annexures R4 and R3, he stated that the outer cartons were sealed and the defect, could nto be remedied without breaking open the seals. But, even assuming the same to be true and correct, the only course op;n to him when the defect was one that could nto be remedied, was to export the goods back to the country in which they were manufactured. or to forfeit the same to the Central Government, as provided in Rule 41(1) of the Drug Rules. Instead, he merely disposed of the goods without even obtaining the previous permission of the concerned authority as undertaken by him in his letters of guarantee. There was thus no question of any non-compliance with the procedure laid down in Rules 40 and 41 which he could have explained to the assistant Collector or the Collector. That is why, obviously, he did nto raise any of these aspects before the Assistant Collector as is clear from his letter, Annexure I, The argument that it was the Assistant Collector that hear him and nto the Collector, as already pointed out, cannto be permitted to be raised for the first time in the arguments, because the respondents had no opportunity to show that the Assistant Collector of Customs for Appraisement was in fact authorised to hear the representation of the petitioner. There is thus no force or substance in the contention advanced by the learned counsel.

(20) Shri Kapur contended lastly that the orders of the Central. Board of Kevenue and of the Government of India (Annexures K and L) were nto speaking orders, and should thereforee be quashed on that ground. He relied upon the decision of S. K. Kapur, J. in Jagnannath Kashinath Kavlekar v. Union of India and tohers. In that case, the Additional Collector of Customs passed an order directing the confiscation of 1400 tolas of gold, and also imposing a personal penalty of Rs. 1,89.000 on one Jagannath.the aggrieved person preferred an appeal to the Central Board of Revenue. The appeat was dismissed by a nonepeaking order. A revision against that appellate order to the Government of India was also rejected by a non-speaking order. The aggrieved party thereupon filed a writ petition in the High Court of Delhi and the writ petition was allowed by S. K. Kapur, J., and the orders of the Central Board of Revenue and the Government of India were quashed on the ground that no reasons were given in the said orders, relying upon the decision of the Supreme Court in Bhagat Raja v. Union of India', and in earlier cases. But, it has to be ntoed that the learned Judge also observed at page 125 as follows:-

'WHETHERor nto the Central Government while exercising revisinal powers under Section 19J of the said Act should give reasons will depend on facts and circumstances of each case'. In the prevent case, the order of the Central Beard of Revenue (Annexure K) after staling that the appeal. Memo, the Collector's report and the records of the case were read, and that the appellant was also heard proceeded as under :- 'The Board has carefully considered the appeal and having regard to all the facts and circurrstances of the case, it directs that personal penalty imposed on the appellants be reduced from Rs. 14,000.00 to Rs 7.000.00 (Rupees seven thousand) only and the balance remitted. The Collector's order is modified to this extent only and the appeal is, toherwise, rejected.'

The order of the Government of India, Annexure L, after stating that the Revision Application, the Collector's report and the records of the case were read, proceeded as under :-

'THEGovernment of India have carefully considered the revision application made by the petitioners and also all the facts and circumstances of the case, but see no reason to interfere with the order-in-Castoms Appeal passed by the Central Board of Revenue, New Delhi.'

The above orders, no doubt, did nto contain any detailed reasons. But the question is as to what aie the reasons which the Central Board of Revenue and the Government of India could have given for the aforesaid orders. As pointed cut above, the petitioner, even before the Assistant Collector of Customs for Appraisement, admitted that there was a defect in the labelling of the goods, which meant that misbranded goods were imported by him, and that he committed a breach of the undertaking given by him by disposing of the goods without obtaining the previous permission of the concerned authority, and pleaded that the defect and the breach of the undertaking may be condoned, and that he may he treated in a lenient manner. The Collector of Customs imposed a penalty of Rs. 140001- and on appeal the Central Board of Revenue, on a consideration of the circumstances of the case, reduced the penalty to Rs.7,000.00. Obviously, the only reason for the reducetion was that the appellate authority considered that a lenient view should be taken on a bread view of the circumstances of the case. That was, in substance, what was stated by the Central Boerd of Revenue in their order. In the revision, the Government of India also, apparently, considered that on a broad view of the matter, the lenient view taken by the Central Board of Revenue was proper in the circumstances, and thereforee rejected the Revision Petition stating that on a consideration of all the facts and circumstances of the case there was no reason for interference with the order passed by the Central Board of Bevenue. It is thus clear that in the circumstances of the case the Central Board of Revenue and the Government of India could nto have given any toher reasons for the orders passed by them. The principles laid down in decisions of Supreme Court and in the decision of S.K. Kapar, J. are nto thereforee applicable to the facts in this case, and the contention of the learned counsel for the petitioner cannto accepted.

(21) For the above reasons, the writ petition fails and is dismissed. But, in the the circumstances of the case, I make no order as to costs


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