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Palriwala Brothers Ltd. Vs. Collector of Customs, Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberMatter No. 140 of 1956
Judge
Reported inAIR1958Cal232,1958CriLJ628
ActsConstitution of India - Article 226; ;Sea Customs Act, 1878 - Section 6, 167(8) and 182
AppellantPalriwala Brothers Ltd.
RespondentCollector of Customs, Calcutta and ors.
Appellant AdvocateE.R. Meyer, ;P.R. Das and ;Gouri Mitter, Advs.
Respondent AdvocateG.P. Kar and ;D.K. Sen, Advs.
DispositionApplication dismissed
Cases ReferredTumey v. Ohio
Excerpt:
- orderp.b. mukharji, j. 1. this is an application by palriwala brothers ltd., for a writ of mandamus directing the collector of customs, the additional collector of customs, and the assistant collector of customs, calcutta, to recall, revoke & cancel the notice to show cause no. 537-2 55/53p (part) 'alca' dated 8th february, 1956 and all other notices and directions or orders issued or passed in connection therewith and also calling upon them to forbear from proceeding under section 167(3) and (8) of the sea customs act read with section 3(2) of the import and export control act, 1947 or under section 167 (8) of the sea customs act read with sections 12(1) and 23-a of the foreign exchange regulations act and from in any way giving effect to or enforcing the order of 28th june, 1956 in.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by Palriwala Brothers Ltd., for a Writ of Mandamus directing the Collector of Customs, the Additional Collector of Customs, and the Assistant Collector of Customs, Calcutta, to recall, revoke & cancel the Notice to Show Cause No. 537-2 55/53P (part) 'Alca' dated 8th February, 1956 and all other notices and directions or orders issued or passed in connection therewith and also calling upon them to forbear from proceeding under Section 167(3) and (8) of the Sea Customs Act read with Section 3(2) of the Import and Export Control Act, 1947 or under Section 167 (8) of the Sea Customs Act read with Sections 12(1) and 23-A of the Foreign Exchange Regulations Act and from in any way giving effect to or enforcing the order of 28th June, 1956 in connection therewith.

2. The petition is full of repetitions and is unnecessarily prolix. It runs into 56 paragraphs where some paragraphs are almost verbatim repetitions of previous paragraphs.

3. Although the petition is supposed to be on behalf of a Limited Company, yet no Director of the Company has affirmed the petition or made any affidavit in these proceedings. The person who signs and affirms this petition is one Manindra Bhusan Banerjee who describes himself in the first portion of the petition as the Export Superintendent of the Company. In the affidavit-in-opposition of Suberna Kumar Srivastava affirmed on 1st March, 1957 it was distinctly alleged that the petition is not properly verified and that the person verifying it was neither a Director nor the Secretary of the Company. It was also stated in the affidavit-in-opposition that Manindra Bhusan Banerjee in various correspondence and proceedings denied knowledge of even established facts. Infact, by a letter dated 30th April, 1956, the Assistant Collector of Customs, Srivastava wrote to the Director in Charge of the Company expressly and pointedly:

'Kindly intimate if the signatory of the said: letter (letter dated 28-4-56) is duly authorised to sign on behalf of the firm and also whether all the replies to the letters of the Customs House signed by him are deemed to have been issued with the knowledge of the Directors of the firm. The source of the information on which he based his replies may also be kindly intimated within a week hereof.'

No reply was given by the Company to that letter. Even in answer to that categorical statement in the affidavit-in-opposition, the affidavit-in-reply was not affirmed by any Director of the Company, but by the same person Manindra Bhusan Banerjee repeating the allegation that he was the Export Superintendent of the Company and as such a principal officer of that Company. Even then in dealing with that allegation, the affidavit-in-reply does not produce or annex his authority to sign on behalf of the Company. He says that his authority to sign on behalf of the Company was registered with the Customs Authority which, if the affidavit of Srivastava is to be accepted, is not true. During the hearing of this application, I called upon him to produce his authority either from the Directors in charge or from the Resolution of the Board of Directors or from any other source on behalf of the Company. He failed to produce it. In the warrant that he filed with this petition, he said that he had authority from the Company to sign the warrant of Attorney. But he failed to produce any authority in Court.

4. In an application for Writ under the Constitution on behalf of a Limited Company, I shall insist that the Court should be moved by persons of competent authority and not by any employee of the Company who call himself a principal officer but who can produce no authority from the Company. Normally the, Director or the Secretary of a Company is the person, to sign and verify. The exception to that general rule is made only in favour of a principal officer of the Company. But then the fact that he is such a principal officer able to depose to the facts of the case must have to be satisfactorily shown to the Court. It is all the more necessary when such writ under the Constitution and Constitutional remedies are sought that this rule must be strictly observed. The Constitution is not intended to be lightly invoked by irresponsible persons and persons with questionable or no authority on behalf of Limited Companies. I must, therefore, hold on the facts of this case that the petition has not been properly signed and verified. I need only add that no explanation has been given either in the petition or in the affidavit-in-reply why the Director or the Secretary in this case did not and could not make the affidavits or even to say that the person who signed and verified this petition had the requisite authority from the company to do so.

5. Coming now to the merits of this application, the main points of attack may bebriefly stated.

6. The order complained of is the order of Srivastava, the Additional Collector of Customs, being an order dated 28th June, 1956 and communicated on 2nd July, 1956 and runsas follows :

'In the aforesaid premises I impose a personal penalty of Rs. 22,000/- on Messrs. Palriwalla Bros. Ltd. The penalty should be deposited in the Customs House Treasury within a week herefrom.'

That is the actual order which is preceded by a discussion of the facts of the case.

7. Four points are urged against thisorder and in support of the application. The first objection is that the applicant did not receive the notice of the memorandum to show cause with the incidental complaint that the applicant did not have the necessary documents to answer the cause. The second objection is that the notice to show cause was returnable before Rangaswami but the order was made by Srivastava. The third objection is that the fine of Rs. 22,000/- was beyond the maximum permissible by the Sea Customs Act and that it was by Srivastava who was not Collector or Additional Collector, because a Collector or Additional Collector is the only authority to impose such penalty under the Act. The fourth objection is that Srivastava should never have adjudicated the penalty because he had already formed an opinion about the guilt of the company and therefore Srivastava could not beboth a Judge and a prosecutor.

8. Now dealing with the first objection that the notice or memorandum to show cause was not received by the applicant, it appears to me from the records that the applicant did receive such notice or memorandum. The notice to show cause was Memo No. S-37/255/55P (Part) 'Alca' dated 8th February 1956. Reference to it is to be found in Sri-vastava's letter dated 6th March, 1956 addressed to the company referring to the notice to show cause and expressly stating that no reply had been received from the company and also expressly directing the company to submit the case within three days from that date, failing which the case would be heard ex parte. Now, in response to that letter the reply of the company is significant in that that it docs not dispute or deny the receipt of the notice to show cause but only says :

'We have to state that as far as we remember we had received 13 show cause letters from you in February, 1956 and we think that we replied to all of them. We do not know to which part number you are referring in your present letter under reply. At any rate, if reply to some part number has been omitted, we are sorry for the same.'

The fact is that the acknowledgment receipt has been produced in Court and the counsel for the applicant did not appear to press the point any further. Nor do I think the point has anymerit. After all, a notice to show cause is intended to inform the party. The applicant's letter dated 8th March, 1956 expressly shows that it knew what was the case against which it was expected to show cause because it said,

'Since you are alleging that there has been some contravention about certain shipping bill, please supply copies of all documents and paper in possession of the Customs or Export Control Authorities concerning the alleged shipping bill and also copies of all documents on the basis of which you made your alleged finding that there has been some contravention. Please also give inspection of all original papers and documents in connection with the above.'

Now, this reply of the company is not even a demand for the copy of the notice to show cause to be given again. In fact, at this stage all that the applicant wanted was documents in connection with the shipping bill and the documents on which the Customs based their finding to prove contravention. I am therefore satisfied on these facts and material that the applicant did receive the notice or the memorandum to show cause and overrule the first objection.

9. At this point I shall dispose of another incidental objection taken by Mr. Meyer, learned counsel for the applicant. He argued that apart from non-receipt of the notice to show cause his client did not get the material documents to show cause. The Customs allegation against the applicant is that on actual weighment of the consignment it was found to be a total weight of 47 Tons -- 18-3-25 Ibs. as against the declared weight in the Bill of Lading of 25 Tons--8-3-20. In this context the only material documents for showing cause were the Shipping Bills and the copy of the letter from M/s Hugo Trumpey Genoa to M/s United Lineer Agencies of India Ltd., Calcutta dated 27th October 1955. Admittedly the copy of this letter was sent to the applicant along with the notice to show cause. Inspection of the Shipping Bills was also offered to the applicant but the applicant did not avail of the opportune v to inspect presumably because it knew what there was in the Shipping Bills. I am therefore satisfied that there is no substance in this objection that the applicant had not the necessary documents to answer the charge of miscalculation and difference between actual tonnage and declared tonnage.

10. The second objection is that although the notice was returnable before Rangaswami it was actually heard by Srivastava. I do not think that this objection has any merit. M. A. Rangaswami was the Additional Collector and the hearing fixed was before him On 19th May, 1956. But a day previous thereto on 18th June 1956 Rangaswami was transferred and left and Srivastava became the Additional Collector acting in his place. Srivastava therefore was the proper person even on 19th May 1956 who would be competent to hear the dispute. In actual fact of course the hearing was adjourned and the adjudication was made on 28th June, 1956. Between 28th June 1956 when the adjudication order was made and 2nd July 1956 the petitioner wrote a letter to the respondent for a hearing on 29th June, 1956. But then the order had already been made. The order of adjudication actually was served on and communicated to the applicant on 2/4th July, 1956. I do not know of any law in administrative adjudication that a notice to show cause and appear signed by one administrative officer cannot be dealt with by his succeeding officer in the same capacity. I therefore overrule this objection.

11. The third objection is that the fine of Rs. 22,000/- was beyond the statutory limit and beyond the capacity of the person who imposed it. It is alleged that under Section 167 (8) of the Sea Customs Act no fine exceeding Rs. 1,000/- could be imposed. Learned counsel for the applicant relied on the observations made by the Supreme Court in F. N. Roy v. Collector of Customs, Calcutta, : 1983ECR1667D(SC) , where it is said that the maximum penalty that might be imposed under Section 167 (8) is Rs. 1,000/- and also on a previous decision of the Supreme Court in Maqbool Hussain v. The State of Bombay, : 1983ECR1598D(SC) , where a similar observation was made. In the recent Supreme Court decision in Babulal Amthalal v. Collector of Customs, Calcutta, : 1983ECR1657D(SC) , at p. 879, reference has been made to Maqbool Hussain's case (B). But those cases did not however in my view go into the question of maximum limit and actually decide the point. Rajarnannar, C.J. in Collector of Customs v. A.H.R. Rahiman, : AIR1957Mad496 , has discussed this question and held that rupees one thousand is not the maximum limit. The language of the statute is clear enough. That language is in these terms :

'Such goods shall be liable to confiscation; any person concerned in any such offence shall be liable to penalty not exceeding three limes the value of the goods or not exceeding Rs. 1,000/-.'

It is therefore clear from the express words of the statute that there are three types of penalties. First there is the penalty against the goods which are confiscated. The second is penalty for a fine not exceeding three times the value of the goods. The third is a penalty not exceeding one thousand rupees. I think it is open on the express terms of the statute for a penalty to be imposed which will not exceed three times the value of the goods even though it might exceed the lump sum of rupees one thousand. In this case the declared value of 500 bags containing 25 tons was Rs. 20,000/-. Therefore, on that basis the maximum penalty could have been three times that value, i.e. Rs. 60,000/-. The penalty imposed however is well within that limit and is about a third of that limit. It is to be noted that these types of penalties, one for three times the value of the goods, and the other for rupees one thousand are not expressed to be 'whichever is less'. That seems to suggest that where goods cannot really be valued at all or confiscated, a lump sum of rupees one thousand is the maximum penalty under that section, but not in other cases where either the goods can be confiscated or where their value can be determined. This view which I am taking of the interpretation of the penalty provision of Section 167 (8) of the Sea Customs Act appears to be supported by a Bombay decision of Chagla, C. J. and Shah, J. in Mohondas Issardas v. A.N. Sattanathan, : AIR1955Bom113 . I do not find that these two decisions of the Madras and Bombay High Courts were placed before the Supreme Court in : 1983ECR1657D(SC) . I, therefore, overrule the objection of the applicant that the penalty imposed is beyond the pecuniary limit specified in the statute.

12. The other objection is that Srivastava was not the authority to impose that penalty under Section 167 (8). The objection on this point is based on Section 1S2 of the Sea Customs Act where it is stated that

'in every case except the cases mentioned in Section 167, Nos. 26, 72, 74 to 76, both inclusive, anything is liable to confiscation or increased rates of duty; or any person is liable to a penalty such as confiscation; increased rate of duty or penalty may be adjudicated (a) without limit by a Deputy Commissioner or Deputy Collector of Customs or a Customs Collector.'

It is said that Srivastava was not a Deputy Commissioner or Deputy Collector of Customs or a Customs Collector.

13. This point also cannot be sustained.Section 3 (c) of the Sea Customs Act defines a Customs Collector as including every officer of Customs for the time being in separate charge of a customs house or duly authorised to perform any special duties of an officer so in charge. By Section 6 of the Sea Customs Act it is further provided that the Central Government may appoint such persons at it thinks fit to be officers of Customs and to exercise the powers conferred and perform the duties imposed by this Act on such officers. At page 3 of the Notification of the Indian Sea Customs Manual, it is provided that all Assistant Collectors of Customs serving in the Calcutta Customs House are appointed officer or officers as the Customs Collector for the Port of Calcutta. I, therefore, overrule the applicant's objection to the authority and capacity of Srivastava to impose a penalty of Rs. 22,000/-. The Customs Notification is M. F. (R. D.) Notfn. No. 5-Cus., dated 18th January, 1952 as amended by Notfn. No. 37-Cus., dated 13th March, 1952, No. 65-Cus., dated 27th December, 1952, No. 39 Cus., dated 6th June, 1953, No. 73-Cus., dated 24th September. 1953 and No. 92-Cus., dated 19th August, 1954.

14. The List objection to the order is that Srivastava's order of penalty cannot be sustained on the ground that be was both the Judge and the prosecutor. It is really an argument on bias of the administrative officer who decides a dispute. It is said that Srivastava as an Assistant Collector of Customs and Superintendent of Preventive Service, Customs House, Calcutta, has already taken active part in the prosecution in the above matter was present at the time of search warrant and has formed an opinion. It is, therefore, argued thatwhen he had already formed an opinion against the applicants he was not the proper person to adjudicate the penalty under Section 182 (3) of theSea Customs Act.

15. In support of this contention reference is first made to the letter written by Srivastava to G. S. Palriwala dated 8th February, 1956. This really is a notice to Palriwala stating the facts as found by the Customs and as disclosing the offence. Great reliance has been placed by counsel on the statement there

'an offence under Section 167 (8) of the Sea Customs Act as read with Section 12 (1) and Section 23-A of the F. E. R. Act is therefore disclosed in respect of the entire consignment'

and the other statement

'from the above it is disclosed that Sarvasri S. N. Palriwala, G. S. Palriwala and G. N. Palriwala of Messrs. Palriwala Bros. Ltd. are the persons concerned in the illegal shipment of the above goods within the meaning of Section 167 (8) of the Sea Customs Act. They are also deemed to be liable to penal action under Section 167, (3) of the Sea Customs Act.'

16. After the most anxious consideration I have come to the conclusion that this letter does not show partisanship. It shows due discharge of the duties of the Assistant Collector of Customs and as Superintendent, Preventive Service. He found that certain facts have disclosed an offence under the Sea Customs Act. This letter itself is a letter written only with the purpose to afford full opportunity to the applicants to submit written explanations against the facts disclosing such offence. It also goes farther to say very clearly whether they wish to be heard in person before the case is decided. It also gives express notice to them that if they fail to submit the written explanation in time or do not appear before the writer of the letter when the case is fixed for hearing, then the case might be decided on the basis of evidence on record without any further notice to them. I, therefore, do riot read this letter as expressing any final conclusion or opinion of Srivastava. But rather I think it is the bare duty of Srivastava to give such notice, call for the explanation and give the applicant an opportunity for stating what they had to say against those facts. If this were not so, then every notice to show cause disclosing an offence and calling for an explanation would disqualify the administrative officer from adjudicating. What will happen to the Courts then, wnen they issue a Rule to show cause against an offence. Are they going to be told that because of such Rule they have already prejudged the issue and disqualified themselves from hearing the Rule. I think that there can be only one answer and that is the issue of such a notice to show cause does not disqualify the authority issuing the notice, to hear the dispute.

17. The next document on which the applicant relies in support of this branch of the argument is an extract from the report of Srivastava submitted before the Court of the Chief Presidency Magistrate, Calcutta regarding an application by the Gajanan Palriwala fixed forhearing on 21st November, 1955. In those extracts it has been said by Srivastava:

'The search was continued from 9-11-45 to 14-11-45, as the petitioner did not co-operate with the Customs Officers. On several occasions he delayed to produce the keys of the lock, coffers and rooms ...... It appears that thepetitioner and others are instrumental in cheating and evading large amounts of customs duties and exporting goods unauthorisedly.'

18. Similarly reliance is placed on extracts from the Customs petition dated 24-1-1956, before the Chief Presidency Magistrate, Calcutta, where the allegation is made that :--

'From the documents scrutinised and from the statements of average traders and businessmen it has been disclosed that the representatives of the applicant company have been responsible for deceiving the Government over a lakh of rupees of customs duties by means of false documents and evading the Export Trade Control and Foreign Exchange Regulations.'

19. Again reliance is placed on an affidavit of Srivastava, dated 25tn January, 1956 in the Criminal Revisional Jurisdiction of this Court arising out of the aforesaid criminal matter relating to search warrant issued by the Chief Presidency Magistrate where he said:

'It was further contended that from the documents scrutinised and from the statements of various traders and businessmen, it appears that the representatives of the opposite party company were responsible for deceiving the Government over lakhs of rupees in customs duties by bringing into existence forged documents and licenses of trade fraudulently by setting up various parties in the market and in collusion and conspiracy with them by making applications for permits .... and have been evading customs duties for a period extending well over a year and even contravening the provisions of Foreign Exchange Regulation Act, Export and Import Control Act and Sea Customs Act and have made themselves liable to be dealt with under the said Acts. The parties above-named are spread all over India, viz., Calcutta, Bombay, Agra, etc.'

20. Similarly reliance is also placed on another affidavit of Srivastava in the Criminal Revisional Jurisdiction of this Court in answer to an affidavit of the applicant where it is said :

'With reference to paragraph 13 of the counter-affidavit I say that, the dutiable, prohibited and restricted goods seized were those which are still lying in the Customs House. Petitioner's fine made the shipments in the names of other firms so as to be out of any trouble and it is the policy of the opposite party firm to act in this manner so that they could always remain behind the screen.'

On the strength of these averments it is argued that Srivastava had prejudged the matter against the applicant and therefore he should not have adjudicated the penalty under the Sea Customs Act. This argument requires careful consideration.

21. It is necessary first to analyse these various statements of Srivastava in order to find out how far they go and whether they indicate a closed and made up mind. He uses the expressions 'it appears', 'from the documents scrutinised', and 'in course of scrutiny it is discovered' that they have been acting in collusion and conspiracy with various other parties and evading Customs duties.

22. The nature of these expressions appears to indicate that what Srivastava was doing was stating facts as appearing from the enquiries investigations and the documents before the Customs. For the purposes of prosecution in the Criminal Courts, Srivastava again was the only officer who was conversant with the facts dealing with the case, and in fact he was present at the time of search warrant. In doing all this he was only doing no more than his duties under the Statute. In such a customs case as this, it is the Customs Officer who is dealing with the facts is the proper person to make affidavits.

23. The question now is, does this conduct disqualify Srivastava from adjudicating the penalty and proceeding under the Sea Customs Act. It raises a fundamental question of administrative law. Before I deal with the point, I should like to say this that the expressions in the affidavits on a total view appear to me only representations on facts as they had been collectedly the Customs but they do not indicate a definite judgment of Srivastava himself or to use the expression of Black J. in the leading American decision on the point, to which I shall presently refer, they do not indicate that the mind of Srivastava was 'irrevocably closed'. Does that fact sufficiently bias or prejudice him to adjudicate the penalty under the Sea Customs Act? There appears no Indian case directly deciding the point, how far such a bias, if any, disqualifies the Administrator from acting as an adjudicator under the statute.

24. The leading decision of the American Supreme Court on this point is the Federal Trade Commission v. Cement Institute, reported in (1947) 333 US 683 : 92 Law Ed 1010 (F). An order of the Federal Trade Commission required a Cement Manufacturers and an association formed by them to cease and desist from acting in concert in pricing their goods on a multiple basing point system by which, irrespective of the location of the mill, the price is always the mill price at the basing point plus freight from such point to the place of delivery. The American Supreme Court in that case comes to the conclusion that the Federal Trade Commission is not disqualified by bias to issue cease and desist order against a combination of manufacturers to maintain a multiple basing point pricing system because its members have, as a result of an ex parte investigation, formed the opinion, expressed in reports made to Congress and to the President and in testimony before Congressional Committees, that the operation of a multiple basing point pricing system as they had studied it is the equivalent of a price fixing restraint on trade. The American SupremeCourt goes on to say that a Federal Trade Commission proceeding to determine whether the Federal Trade Commission Act had been violated by the maintenance by the Cement Manufacturers of a basing point delivered price system alter members of the Commission had expressed the view, as the result of ex parte investigation, that industry-wide use of basing point price systems is illegal, does not deny procedural due process.

25. Now in the American case the Federal Trade Commission definitely formed a judgment that multiple basing point pricing system was Illegal and in restraint of trade which was the very point that they had to decide. They expressed that judgment of theirs not in Criminal Courts as in the present case but before very much more august bodies under the American Constitution, as the President, Congress and the Congressional Committees. The American Commission had carried on ex parte investigation also. Notwithstanding all this, the American Supreme Court held that the Federal Trade Commission was not disqualified in adjudicating the dispute and issuing the cease and desist order.

26. In order to exemplify the point, it is necessary and helpful in this case to quote from the judgment of Black, J. of the American Supreme Court in that case who delivered the opinion of the Court in (1947) 333 U. S. 683 at pp. 700 to 703: 92 Law Ed. 1010 at pp. 1034-35 (F). Black, J. said at those pages :--

'One year after the taking of testimony had been concluded and while these proceedings were still pending before the Commission, the respondent Marquette asked the commission to disqualify itself from passing upon the issues involved, Marquette charged that the Commission had previously pre-judged the issues, was 'prejudiced and biased against the Portland Cement Industry generally' and that the industry and Marquette in particular could not receive a fair hearing from the Commission. After hearing oral argument the Commission refused to disqualify itself. The contention, repeated here, was also urged and rejected in the Circuit Court of Appeals one year before that Court reviewed the merits of the Commission's order. Marquette Cement Manufacturing Co. v. Federal Trade Commission, 147 F. 2d. 589 (G).'

'Marquette introduced numerous exhibits intended to support its charges. In the main these exhibits were copies of the Commission's reports made to Congress or to the President. These reports, as well as the testimony given by members of the Commission before congressional committees, make it clear that long before the filing of this complaint the members of the commission at that time, or at least some of them, were of the opinion that the operation of the multiple basing point system as they had studied it was the equivalent of a price fixing restraint of trade in violation of the Sherman Act. We, therefore, decide this question as did the Circuit Court of Appeals on the assumption that such an opinion had been formed by the entire membership of the Commission as a resuit of its prior official investigations. But we also agree with that court's holding that this belief did not disqualify the Commission.'

'In the first place, the fact that the Commission had entertained such views as the result of its prior ex parte investigations did not necessarily mean that the minds of its members were irrevocably closed on the subject of the respondent's basing point practices. Here in contrast to the Commission's investigation, members of the Cement Industry were legally authorised participants in the hearings. They produced evidence -- volumes of it. They were free to point out to the Commission by testimony, by cross-examination of witnesses and by arguments, conditions of the trade practices under attack which they thought kept these practices within the range of legally permissible business activities.'

'Moreover, Marquette's position, if sustained, would to a large extent defeat the congressional purposes which prompted passage of the Trade Commission Act. Had the entire membership of the Commission disqualified in the proceedings against these respondents, thus complaint could have been acted upon by the commission or by any other government agency. Congress has provided for no such contingency. It has not directed that the Commission disqualify itself under any circumstances, has not provided for substitute commissioners should any of its members disqualify, and has not authorised any other government agency to hold hearings, make findings, and issue cease and desist orders in the proceedings against unfair trade practices.'

'Marquette also seems to argue that it was a denial of due process for the Commission to act in these proceedings after having expressed the view that industry-wide use of the basing point system was illegal. A number of cases are cited as giving support to this contention. Tumey v. Ohio, (1927) 273 U. S. 510 (H) is among them. But it provides no support for the contention. In that case Tumey had been convicted of a criminal offence, fined and committed to jail by a Judge who had a direct, personal, substantial, pecuniary interest in reaching his conclusion to convict. A criminal conviction by such a Tribunal was held to violate procedural due process. But the Court there pointed out that most matters relating to judicial disqualification did not rise to a constitutional level.'

'Neither the Tumey decision nor any other decision of this Court would require us to hold that it would be a violation of procedural due process for a Judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law. In fact, Judges frequently try the same case more than once and decide idertical issues each time, although these issues involve questions both of law and fact. Certainly, the Federal Trade Com-mission cannot possibly be under stronger constitutional compulsions in this respect than a court. The Commission properly refused to disqualify itself.'

27. I have quoted in extenso from the judgment of Black, J. because I find the point not sufficiently discussed in the Indian Law. I respectfully agree with the views of Black, J. Reading and scanning the various statements made by Srivastava which are alleged to disqualify him, I have come to the conclusion that they do not individually or collectively show that the mind of the adjudicator Srivastava was 'irrevocably closed' to use the language of the American decision. The doctrine of statutory necessity added to the very nature of the administrative process makes the range of disqualifying bias considerably narrower in administrative law than in the case of traditional courts and judges. The statute might provide that a particular administrator administering the statute is the proper person with authority to decide disputes under the Act. In that case to deny him that authority because he had to deal with facts in the stage of preliminary enquiries, reports and investigations would be to defeat the very statute itself. Srivastava in this case was the proper person as the Collector of Customs with proper authority. It is not suggested, far less alleged, in the affidavit that there was available at the time any other customs officer who could discharge the duties under the Act and impose the type of penalty that was done in this case. In fact all this argument against Srivastava on the ground of his being alleged to be both a judge and prosecutor would not apply to the appeal before the Central Board of Revenue under Section 188 of the Sea Customs Act, an alternative and equally efficacious remedy in this case which was open to the applicant but which the applicant never invoked although in this very case G.S. Palriwalla individually has appealed against this very order in his case to the Central Board of Revenue. Then secondly in administrative agencies the doctrine of prejudging the issue is considerably qualified by the circumstances and context in which these agencies and officers work whose first principle is that the administration is the first judge of the disputes that arise in course of administration. Thirdly, I have come to the conclusion in this case that there was really no conclusive and irrevocable opinion formed by Srivastava on the guilt or otherwise of the applicant so as to disqualify him from adjudicating. It is necessary to add that the applicant in answer to the notice of 8-3-1956, calling upon him to show cause never suggested that Srivastava was not the proper person, it being recalled that Srivastava was the person who signed the notice to show cause. I therefore do not see how his much earlier statement in the letter of 8-11-1955 to the Chief Presidency Magistrate, Calcutta, saying, 'I have reason to believe that dutiable prohibited restricted and smuggled goods and the documents relating thereto are secreted in the premises mentioned below', & praying for the issue of a search, can now disqualify him. I should have thought it was settled law that an appellant who appeared before an officer or a tribunal with known bias could not be heard to complain of bias after the decision. I should apply the same rule which the courts apply in refusing to set aside the awardof an arbitrator on the ground of alleged bias of the arbitrator if such Lias was known to the person complaining from the outset of the proceedings and before the award was made. As the Directors have not come forward in this application to make this serious allegation against the administration, I do not think that the applicant-Company's point taken through a Superintendent should be allowed to prevail.

28. The application, therefore, fails and isdismissed with costs. I discharge the Rule andvacate interim orders, if any.


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