1. This is an appllication by Bahadur Singh, Proprietor, Golden Goods Transport Co., Naya Bazar, Delhi, and Chandan Singh Driver, care of Golden Goods Transport Company, Delhi, under Articles 226 and 227 of the Constitution of India, against Shri Jaswant Raj Mehta, Commissioner, Customs ami Excise to the Government of Ralasthan, Shri Shyam Sunder Narain, Deputy Commissioner (Appeals) Customs and Excise, Rajasthan, Ltd., Col. Thakur Ranjit Singh, Deputy Commissioner Customs and Excise, Jaipur Division and the Government of the United State of Rajasthan through its Chief Secretary, for a writ of 'certiorari' to quash the judgment of the Deputy Commissioner, Customs and Excise, Jaipur Division, and for prohibiting the respondents from realising the fines imposed on the petitioners, and from confiscating their truck No. 391 or for any other direction or order necessary under the circumstances of the case.
2. The case of the petitioners is that the Deputy Commissioner, Customs and Excise, Jaipur Division, convicted the petitioner under Section 48, Matsya Customs Ordinance, 1948, for contravening the provisions of Section 46 (1) of the said Ordinance, and fined each petitioner Rs. 101/-and ordered that ten times the customs dues of Rs. 154/11/6 be realised from the petitioners, and their truck No. 391 be confiscated. The petitioners say that the Deputy Commissioner, Customs and Excise, Jaipur Division, had no power to impose the penalty, which has been imposed by him on the petitioners, and that even if he had any such power under the Matsya Customs Ordinance, 1948, that power offended against the provisions of Articles 13 and 14 of the Constitution of India.
3. On behalf of the respondents, objection has been taken to the application on the ground that the Deputy Commissioner, Customs and Excise, Jaipur Division, Jaipur, had power, in accordance with the Matsya Customs Ordinance, 1948, to impose all the penalties which have been Imposed on the petitioners. It has further been stated that Section 48, Matsya Customs Ordinance under which the action was taken, was not repugnant to Article 14 of the Constitution of India. It has further been objected that in any case, the petitioners had an adequate and alternative remedy, inasmuch as they could appeal to the Civil Judge or file a suit against the respondents.
4. We have heard the learned counsel for both the parties. The charge against the petitioners was that they imported 73 bags of 'gur' in truck No. 391 from Monganva, outside Matsya territory, into the Matsya territory without paying the customs duty. Under Section 46, Matsya Customs Ordinance, 1948, (hereinafter to be referred to as the Matsya Ordinance) this is an offence falling under Clause (1) of that section. Such an offence can be tried under Section 47 of the Matsya Ordinance by any Magistrate of the First Class within whose jurisdiction it is committed. By Section 48, however, it has been provided that instead of being prosecuted in a Court of Law, the offender may be dealt with depart- mentally at the discretion of the Superintendent 'Customs, who shall have power to recover as penalty tenfold customs duty or to impose a fine upto Rs. 200/- on the defaulter, and to confiscate the goods involved in the case or to combine any of the two punishments, as the case may be.
In the present case, the Deputy Commissioner, Customs and Excise, Jaipur Division, Jaipur, did not send the case to a Magistrate of the First Class, as required by Section 47, but dealt with the offenders departmentally under Section 48. and combined both the punishments provided by that section; Under Section 48 of the Matsya Ordinance, it is the Superintendent Customs, who has been given the power to deal with the offender departmentally. The 'Superintendent, Customs' under Section 3 (2) of the Matsya Ordinance, means 'the Superintendent of Customs appointed under Section 5 (a) of the Ordinance'. There is no Section 5 (a) in the Ordinance, but probably it is a mistake for Section 5 1. Under Section 5 (1), the Government may appoint such persons as they think fit to be Superintendent Customs, and to exercise the powers conferred, and perform the duties imposed, by the Ordinance on such officers. In the present case, the petitioners have not been dealt with departmentally by the Superintendent of Customs appointed in accordance with the Matsya Ordinance. They were so dealt with by the Deputy Commissioner, Customs and Excise, Jaipur Division.
No law has been shown to us according to which the Deputy Commissioner, Customs and Excise, Jaipur Division could be considered to be the Superintendent of Customs within the meaning of the Matsya Ordinance to exercise powers within the territory where the offence is said to have been committed. Obviously, therefore, the Deputy Commissioner, Customs and Excise, Jaipur Division, had no power to deal with the petitioners departmentally, and impose upon them the penalty prescribed by Section 48 of the Matjya Ordinance. It may be that at present there is no post carrying the designation of Superintendent Customs in the territories of former Matsya. But for that reason the Deputy Commissioner, Customs & Excise, Jaipur Division, cannot clothe himself with the powers of the Superintendent Customs, unless the law is amended. The order of the Deputy Commissioner, Customs and Excise, Jaipur Division, Jaipur, is without jurisdiction on this ground alone.
5. There is, however, another reason, for which the order of the Deputy Commissioner, Customs and Excise, Jaipur Division, is bad. Section. 48 of the Matsya Ordinance leaves it to the discretion of the Superintendent Customs either to prosecute an offender under the Ordinance in a Court of law, or to deal with him departmentally and impose penalties on him prescribed by Section 48. According to Article 14 of the Constitution of India, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. According to Article 13(1) of the Constitution, all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part 3, of which Article 14 forms a part, shall, to the extent of such inconsistency, be void. Article 14 of the Constitution of India corresponds to the last portion of Section 1 of the 14th Amendment of the American Constitution, except that our Article 14 has also adopted the English doctrine of the Rule of law by the addition of the words 'equality before the law'. However, the addition of these extra words does not make any substantial difference in its practical application. The, meaning, scope and effect of Article 14 of the Constitution of India have been discussed and laid down by the Supreme Court of India in the case of -- 'Charanjit Lal v. The Union of India', AIR 1951 SC 41 (A).
Most of the useful observations of the Supreme Court in the said case have been crystallised in the form of seven principles by His Lordship Fazal Ali J. in the case of -- The State of Bombay v. F. N. Balsara', AIR 1951 SC 318 (E). They are:
' 1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
4. The principle does not take away from (foe State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
6. If a law deals equally with members of a well-defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.'
6. Thus, according to the principles given above, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment, and if a law deals equally with members of a well-defined class, it is not obnoxious, and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. But while reasonable classification 13 permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any subsantial basil. In a recently decided case of the Supreme Court, -- 'The State of West Bengal v. Anwar All Sarkar', AIR 1952 SC 75 (C), their Lordships had before them the West Bengal Special Courts Act (No. 10 of 1950). In that case the Governor of West Bengal by a notification dated 26-1-1950, in exercise of the powers conferred by Section 5 (1), West Bengal Special Courts Act of 1950 sent Anwar Ali Sarkar and 49 other persons charged with various offences alleged to have been committed by them in the course of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum for trial by the Special Court established under the said Act. The Special Court convicted these 50 persons for various offences and sentenced them to varying terms of imprisonment.
Thereupon, the convicts applied to the High Court at Calcutta under Article 226 of the Constitution for issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as Section 5 CD, under which it was sent to that Court for trial, was unconstitutional and void under Article 13(2) of the Constitution, as it denied to the respondents the equal protection of the law enjoined by Article 14. The High Court, by a Full Bench consisting of the Chief Justice and four others, quashed the conviction and directed the trial of the respondent and other accused persons according to law, Against this order of the High Court, an appeal was filed in the Supreme Court, and the case came up for hearing before a Bench of seven Judges, Including the Chief Justice of India. His Lordship the Chief Justice held that the Act did not make any- such discrimination as to offend against the provisions of Article 14, nor did the State Government act arbitrarily or with a discriminatory intention in referring the cases to the Special Court, for there were obviously special features which marked off that group of cases as requiring speedier disposal than would be passible under the ordinary procedure, and the charge of discriminatory treatment must fail. The other six Judges, however, held unanimously that the provision of Section 5 (1) of the Act in so far as it empowered the State Government to direct 'coses' to be tried by a Special Court offended against the provisions of Art 14 of the Constitution, and, therefore, the Special Court had no Jurisdiction to try the 'cases' of the respondents.
Five out of Six Judges (His Lordship S. R. Das J. not agreeing) held that whole of Section 5 (1) of the Act offended against the provisions of Article 14, and was, therefore, void. Two of these five, that is, their Lordships Chandrashekhara Aiyar and Bose JJ., went to the length of holding that the whole of the Act was 'ultra vires' the Constitution of India, as it offended against the equal protection of laws guaranteed by Article 14 of the Constitution.
Dealing with the case, his Lordship Mahajan J. observed as follows at pages 86 and 87:
'The present statute suggests no reasonable basis or classification, either in respect of offences or in respect pf cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the Provincial Government, It has the power to pick out a case of a person similarly situated and hand it over to the special tribunal and leave the case of the other persons in the same circumstance to be tried by the procedure laid down in the Criminal Procedure Code. The State Government is authorised, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the Provincial Government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are Europeans, be tried by the Special Court while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code.
That the Special Act lays down substantially different rules for trial of offences and cases than laid down in the general law of the land i.e., the Code of Criminal Procedure, cannot be seriously denied. It short-circuits that procedure in material particulars. It imposes heavier liabilities on the alleged culprits than are ordained by the Code. It deprives them of certain privileges which the Code affords them for their protection. Those singled out for treatment under the procedure of the Special Act are to a considerable extent prejudiced by the deprivation of the trial by the procedure prescribed- under the Criminal Procedure Code. Not only does the special law deprive them of the safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependent on the discretion of the Special Judge. To a certain extent the remedies to which an accused person Is entitled for redress in the higher Courts have been cut down. Even if it be said that the statute on the face of it is not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive Government unregulated official discretion and, therefore, has to be adjudged unconstitutional.
It was suggested that good faith and knowledge of existing conditions on the part of a legislature has to be presumed. That is so; yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of Article 14, in the words of an American decision a mere rope of sand, in no manner restraining State action. The protection afforded by the Article is not a mere eye-wash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to be declared unconstitutional. No just cause has been shown in the present instance.'
His Lordship Mukherjea J. observed as follows at page 91:
'In the case before us, the language of Section 5 (1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act.'
His Lordship S. B. Das J. says on page 93:
'It is now well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an 'abstract symmetry' in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances equal and the varying needs of different classes of persons often require separate treatment, and, therefore, the protection clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different basis. It may be geographical or according to objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary, but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.'
His Lordship Chandrasekhara Aiyar J. remarked as follows on page 101:
'If the legislation itself is open to attack, on the ground of discrimination, the question of any act done by a local or other authority under the power or powers vested in it will not arise. If the Act itself is invalid on the ground that it is 'ultra vires' the notification, ordinance, or rule falls to the ground with it, taut if the Act remains, the validity of the notification or order etc. when impugned, may have to be considered independently.'
His Lordship further observes on the same page:
'If the statute makes no classification at all, or if the classification purported to be made is not reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as contravening Article 14. It is no doubt true that totally different considerations might arise if specified offences or groups of offences in a particular area or arising out of a particular event or incident were to be tried by a Special Court but this is not the case here. I am unable to see how if the Act merely provided that certain 'classes of cases' as distinguished from 'cases' should be tried by a Special Court, the attack against discrimination could be avoided, as even then the test of rationality or reasonableness would still remain to be satisfied. If the Act does not enunciate any principle on the basis of which the State Government could select offences or classes of offences or cases and classes of case.3 and State Government is left free to make any arbitrary selection according to their will and pleasure then the Act is void.'
His Lordship Bose J. in his interesting and forceful judgment observes at p. 104 as follows:
'Coming now to the concrete cases with which we have to deal here, I am far from suggesting that the departures made from the procedure prescribed by the Criminal Procedure Code are bad or undesirable in themselves. Some may be good in the sense that they will better promote the ends of justice and would thus form welcome additions to the law of the land. But I am not here to consider that. That is no part of a Judge's province. What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question which can be answered in the abstract, but, viewed in the background of our history, I am of opinion that it does. It is not that these laws are necessarily bad in themselves. It is the differentiation which matters; the singling out of cases or groups of cases or even of offences or classes of offences, of a kind fraught with the most serious consequences to the individuals concerned tor special, and what some would regard as peculiar treatment.
It may be that justice would be fully done following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say, not from the point of view of the government who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be done. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first.
The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people for the common man for whose benefit and pride and safeguard the Constitution has also been written. Unless and until these fundamental provisions are altered by the constituent processes of Parliament they must be interpreted in a sense which the common man, not versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken truth in that which has been enacted for his benefit and protection.
Tested in the light of there considerations I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of Article 14 and is, therefore, bad.'
7. The case I have just cited fully applies to the facts of the present case, in that case it was left by Section 5 (1) of the West Bengal Special Courts Act to the discretion of the State Government to send any case it liked to the Special Court for trial. In the present case, under Section 48 of the Matsya Ordinance the Superintendent Custom; has been given an unrestricted power to send any case he likes to a Court of law & retain any case of the same type to be deart with departmentally at his discretion by his ownself. There is absolutely no classification worth the name, to say nothing of reasonable classification. No principle has been given in the Act on which the Superintendent Customs was to act in deciding whether a particular case is to be tried by ordinary criminal Court or is to be dealt with departmentally by his ownself. The provision of law, which gives such an unbridled and arbitrary power to an executive officer to make distinction between one man and another similarly situated cannot but be termed a discriminatory and hostile provision, and is clearly hit by the provisions of Art. 14 of the Constitution. In my opinion, Section 43 of * the Matsya Ordinance offends against the fundamental rights of equal protection of laws and equality before the laws enshrined in Article 14 of the Constitution, and is, therefore, void under Article 13. The order of the Deputy Commissioner, Customs and Excise, Jaipur Division, Jaipur, dated 6-8-1951, is, therefore, without jurisdiction and is void.
8. It was argued on behalf of the respondents that there were adequate, specific and alternative remedies in the shape of an appeal to the Civil Judge under Section 72 of the Matsya Ordinance as well as in the shape of a regular civil suit. The application under Article 226 was, therefore, not maintainable. As regards the objection that a specific provision exists by way of an appeal to the Civil Judge under Section 72 of the Matsya Ordinance, all that I have to say is that the said section provides an appeal against the order of the Superintendent, Customs. In the present case, the impugned order has not been made by the Superintendent, Customs. The appeal would not, therefore lie to the Civil Judge under Section 72 of the Matsya Ordinance, and even if it is presented, it would be returned for presentation to the proper authority, if any.
9. As regards the contention that the applicant could have an adequate and alternative remedy by way of a regular suit, it may be that the applicant might be able to file some sort of regular suit in a civil Court, as a civil suit, under the circumstances of the present case, is not barred under any of the provisions of the Matsya Ordinance. However, property of a very great value is involved in the case, and the suit would be a very expensive remedy, if at all. When it has been found by this Court that the impugned order of the Deputy Commissioner, Customs and Excise, Jaipur Division, is clearly without jurisdiction, and the provisions of Section 48 of the Matsya Ordinance clearly offended against the constitutional provisions of Article 14 relating to fundamental rights of equal protection of law and equality before the laws, this Court would not be justified in dismissing the application on this ground alone, as even if the suit is filed, the civil Court will be bound to refer the case under Section 113, as amended, of the Code of Civil Procedure, and under such circumstances, as held by a Division Bench of this Court consisting of the Chief Justice and Bapna J. in the case of -- 'Manohar Singhji v. The State of Bajasthan', AIR 1953 Raj 22 (D),
'the High Court would not deem it proper to dismiss the petition on the ground of existence of alternative remedy alone.'
10. Now remains the question as to what relief should be given to the petitioners. A writ of certiorari and prohibition may not be available to the petitioners under the circumstances of the case, because the Deputy Commissioner, Customs and Excise, Jaipur Division, was not under any legal duty to decide the case judicially or quasi-judicially. But Article 226 of the Constitution of India is not confined to these writs alone, and gives a very wide power to the High Court to issue any direction or order it deems proper for the enforcement of fundamental rights or any other purpose. This Court is, therefore, not altogether helpless in giving appropriate relief under Article 226 of the Constitution.
11. The application is allowed, and the respondents are ordered not to realise the fine and penalty imposed by the order of the Deputy Commissioner, Customs and Excise, Jaipur Division, Jaipur, dated 6-8-1951 from the petitioners and if realised, to return them to the petitioners. The truck, in respect of which order of confiscation has been made, if not already seized, shall not be seized, it shall be returned. The petitioners shall get their costs of this application including Rs. 80/- as counsel's fee from the respondents.
12. I agree and have nothing to add.