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The New Central Jute Mills Co. Ltd. Vs. the Assistant Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 45 of 1969
Judge
Reported inAIR1970Cal212
ActsCustoms Act, 1962 - Section 105; ;Constitution of India - Article 226; ;Foreign Exhange Regulation Act, 1947
AppellantThe New Central Jute Mills Co. Ltd.
RespondentThe Assistant Collector of Customs and ors.
Appellant AdvocateR.C. Deb and ;R.N. Bajoria, Advs.
Respondent AdvocateG.P. Kar and ;Asoke Kumar Banerjee, Advs.
DispositionAppeal allowed
Cases ReferredThe Printers (Mysore) Private Ltd. v. Pothan Joseph.
Excerpt:
- .....226 of the constitution. that petition had been brought by the appellant against the respondents customs authorities and the union of india, challenging the validity of the order of authorisation dated may 11, 1968 (vide page 79 of the paper book), under which the preventive officer of the customs department, respondent no. 2, was authorised under section 105 of the customs act to enter into the premises of the appellant and to search for and seize and take possession of their goods and documents and things, pursuing the belief of the customs authorities that goods liable to confiscation under the said act were secreted in the premises of the appellant. certain documents. inter alia, were seized from the custody of the appellant in pursuance of this order and the petitioner challenged.....
Judgment:

D. Basu, J.

1. This appeal is against the order of B. C. Mitra, J. passed on March 6, 1969 in Matter No. 344 of 1968, on an application made by the Assistant Collector of Customs, the respondent in the parties under Art 226 of the Constitution. That petition had been brought by the appellant against the respondents Customs authorities and the Union of India, challenging the validity of the order of authorisation dated May 11, 1968 (vide page 79 of the paper book), under which the Preventive Officer of the Customs Department, respondent No. 2, was authorised under Section 105 of the Customs Act to enter into the premises of the appellant and to search for and seize and take possession of their goods and documents and things, pursuing the belief of the Customs authorities that goods liable to confiscation under the said Act were secreted in the premises of the appellant. Certain documents. Inter alia, were seized from the custody of the appellant in pursuance of this order and the petitioner challenged the order of authorisation as well as the seizure made thereunder on various grounds. While Issuing the Rule on this petition an interim order of injunction was issued by the Court on 16-5-1968 directing the seized documents to be kept in the sealed box, and restraining respondents, that is, the Customs authorities, 'not to examine or look into the books seized until further orders of this Court'. Thereafter there was an application for vacation of the said order by respondents and simultaneously an application for the extension of the period of interim injunction which was originally limited to six weeks, was made by the appellant.

2. These applications were disposed of by the order of the Court on 8-8-1968 (page 8 of the paper book) by which the original interim order was modified to the extent that the respondents, that is, the Customs authorities, would be at liberty to break open the seals for purposes of examining the documents in the presence of the petitioner but that the respondents 'shall not take any further steps in pursuance thereof.' In short, though by the interim order, as originally issued, the respondents had no right of inspection of the documents, they were given that right for their own inspection by the first order of variation of the interim injunction dated 8-8-1968. The matter, however, did not end there since another party, namely, the Directorate of Enforcement, was anxious to have inspection of the seized documents for purposes of their own under the Foreign Exchange Regulation Act, 1947. They, therefore, mentioned the matter to this Court before B. C. Mitra, J. asking for inspection on 13th December, 1968 and the Court upon hearing the Counsel concerned ordered that instead of mentioning the matter orally, an application should be filed by the proper party (vide paragraph 10, p. 9 of the paper book). In pursuance of that direction of the Court, a formal application to this effect was filed by the Customs authorities, togetherwith the Union of India (respondents 1 and 2), which is at pages 5 to 9 of the Paper Book. In this application the prayer of the Customs authorities was that while they themselves had already the right to inspect the seized documents, they should now be permitted to allow the Enforcement Directorate to inspect the documents and for this, the permission of the Court was sought It is that application which has been disposed of by the Court by the impugned order at page 51 of the paper book. In this order the Court said that the Enforcement Directorate had statutory powers under Sections 19-E and 19-F of the Foreign Exchange Regulation Act, 1947 to compel the appellant or even the Customs Department to produce the disputed documents but that the Court could not allow them to exercise that power while the documents were in the custody of the Court in the pending proceedings, at the end of which the appellant had a right to get back the documents. The substance of this observation seems to be that it was in exercise of the powers of the Customs authorities under the Customs Act that the disputed documents had been seized and that after the disposal of the petition under Article 226 arising out of that seizure, if that terminated in favour of the petitioner, he was entitled to get a return of the seized documents. Nevertheless, the Court held that unless the Enforcement Directorate was allowed an inspection of the documents the object of the statutory powers of the Enforcement Directorate would be defeated simply because the documents were in the custody of the Court in a proceeding initiated by the Rule Nisi on the petition under Article 226 of the Constitution. In other words, it was because of the pending proceedings before the Court that the Enforcement Directorate was not in a position to exercise their statutory powers and that was a reason why the Court should allow them to inspect the documents which had been seized by the Customs authorities. To reproduce the relevant observations of the Court below on this point-

'But at the same time if the Enforcement Directorate has a right to call for production of documents under Section 19-E of the said Act and also a power to summon any person to give evidence and produce documents under Section 19-F of the said Act, the ends of justice demand that they should not be denied the right to look into the documents because a Rule Nisi has been issued by this Court and interim orders have been made with regard to the documents.'

3. We are to determine the validity of this reasoning in the present appeal but before we go into the merits, a preliminary objection raised by Mr. Kar on behalf of the respondents has to be cross-ed, namely, as to the maintainability of this appeal from the impugned order. It was argued by Mr. Kar that the impugned order was nothing but an order of inspection of documents which was not a 'judgment' within the meaning of Clause 15 of the Letters Patent under which the appeal comes from the decision of a single Judge to this Division Bench, Mr. Kar relied upon certain decisions showing that interlocutory orders like an order of amendment, : AIR1959Cal62 or service of a notice. : [1959]37ITR493(Cal) or an order for inspection of documents in a suit. : AIR1953Mad841 , did not constitute a judgment within the meaning of the Letters Patent. The word 'judgment' has, however, been interpreted by the Supreme Court in another context in a number of decisions because that word occurs in Articles 132, 133 and the like. It has been explained in those cases that a decision in order to be a judgment must finally determine the rights of the parties in the proceeding. But all proceedings are not of the same nature.

In a suit, inspection of documents Is only an interlocutory step like similar other steps, such as interrogatories, discovery and the like, which are preliminary steps for deciding the cause in the suit which may not be identical with the right of inspection. A suit may be one for declaration of title or other reliefs such as partition, accounts and the like. Those reliefs are independent of the inspection of documents and that is why there cannot be a 'judgment' from which appeal would lie when the Court either grants or refuses inspection of documents in a suit.

4. But the case is otherwise in an application under Article 226. Here the case which the Court has got to decide on the instant petition, for instance, was whether the seizure made by the respondents was lawful and whether the respondents had a right to open, examine or inspect those documents on the basis of the order of seizure, the validity of which was challenged in the petition. The interim relief that the Court granted at the time of issuing Rule Nisi was co-extensive in nature with the rights sought to be established at the hearing of the petition, the only difference being that it was limited to a temporary period, namely, the pendency of Rule or until further orders were made by the Court. In other words, what was decided on the application for interim injunction initially was whether the respondents should or should not have a right to examine the documents until their right to examine the documents was investigated into and decided by the Court on the hearing of the petition under Art 226, on the merits. There is little dispute that the original order of interim injunction, was itselfappealable. It was even conceded that the first modification which the Court made on 8-8-1968 allowing the Customs authorities to inspect the documents was appealable. But as matters stand, the appellant did not prefer any appeal against that order. That omission, however, cannot debar the appellant from challenging any further modification of the original order of injunction which the Court might make affecting the appellant, by giving inspection to persons other than the Customs authorities. In fact, the Enforcement Directorate is not a party to the Rule which was pending before the Court They could not, therefore, make an independent application in the instant proceeding, as the Court rightly held, asking for inspection of the documents. That is why the Customs authorities made the application in question for permission of the Court to allow the Enforcement Directorate to inspect the documents which were lying in the hands of the Customs authorities. Mr. Kar resisted the suggestion that the Impugned order was a variation of the original interim order issued by the Court with the Rule. We have, however, little doubt that, properly understood, the impugned order is nothing but a second modification of the original interim order issued by the Court, by way of giving inspection not only to the respondents in the Rule but to strangers through the medium of the respondents. Looked at from this standpoint we have little doubt that the impugned order is a 'judgment' within the meaning of Clause 15 of the Letters Patent and is, therefore, appealable.

5. Coming now to the merits of the reasons which were given by the Court below for allowing the respondents Customs authorities to entertain the Enforcement Directorate to have an inspection of the documents. In our opinion, the mere fact that the Enforcement Directorate, who are not parties in the case before the Court below, had independent powers under a different statute which could be exercised by them was itself a ground for not allowing the application. Mr. Kar urged that the impugned order of the Court below was a discretionary order and this Court should not interfere with such a discretionary order so long as the Court had not acted arbitrarily or un-judicially, as has been referred to by the Supreme Court in : [1960]3SCR713 . The Printers (Mysore) Private Ltd. v. Pothan Joseph.

6. It is, however, to be noted that a person's document constitutes his property which might sometimes be more valuable than immovable property itself and that, accordingly, it can be taken away or invaded by another person only under authority of law. Where that rightis governed by statute, the right can be exercised only in compliance with the procedure or the conditions and limitations imposed by that statute. When the Customs authorities seized the documents in the exercise of their powers under Section 105, they could use those documents only for their own purpose under the Customs Act and not for lending them to somebody else. It was argued that the Enforcement Directorate had accompanied the Customs authorities at the time of the search made by the Customs Department inasmuch as they themselves had some suspicion that provisions of the Foreign Exchange Regulation Act, 1947 or the connected laws had been violated by the appellant. It is, however, to be remembererd that the officers of the Foreign Exchange Department did not exercise those powers which they themselves had to make a search or to call for a party to produce or deliver documents under Section 19-E etc., of the Foreign Exchange Regulation Act, 1947. Section 19-E is as follows:--

'The Director of Enforcement may, during the course of any inquiry In connection with any offence under this act-

(a) require any person to produce or deliver any document relevant to the Inquiry; .....'

It was argued on behalf of appellant by Mr. Deb that this power could be exercised only during the course of any enquiry in connection with any offence under this Act and that it was not evident in this case that any such enquiry in connection with an offence under the Foreign Exchange Regulation Act, 1947, had been formally initiated. In fact, we have not got before us any order made by the Directorate of Enforcement under the Foreign Exchange Regulation Act Whatever might be the circumstances, from the legal standpoint, it cannot be overlooked that the legality of the action of the respondents, namely, the Customs authorities, was in challenge in the pending proceedings, or in other words, the right of the Customs authorities themselves to inspect the documents was in question, upon which no decision of the Court has yet been arrived at. If the Enforcement Directorate had independently pursued their powers under the Foreign Exchange Regulation Act and had either called for those documents or seized them the appellant would have got an independent right to challenge that action of the Enforcement Directorate in appropriate proceedings. By allowing the Customs authorities to extend their opportunity of inspection in favour of; the Foreign Exchange Directorate, the Court was depriving the appellants of their substantive right to question any seizure or order of production issued by the Enforcement Directorate in case theyhad directly exercised their power under the Foreign Exchange Regulation Act. In the pending Rule, the trial Court had no jurisdiction to do anything in that behalf, or to indirectly enforce the rights of a party which was not a party before it. When the decision of the Court is ultra vires, no question of an improper or arbitrary exercise of discretion arises because it is no order at law at all.

7. In this view, we are of the opinion that the impugned order of the Court must be set aside. The appeal is accordingly allowed and the impugned order dated March 6, 1969 is set aside.

8. In the circumstances of the case, there would be no order as to costs.

9. We must add, however, that there may be some inconvenience caused to the Enforcement Directorate if the hearing of the Rule is prolonged to any unusual length and the documents in question are detained until the disposal of the Rule. We desire, therefore, that this Rule should be heard and disposed of as early as possible.

10. Ajay K. Basu, J.: I agree.


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