P.B. Mukharji, J.
1. This is an application under Article 226 of the Constitution. The applicant is Kshetra Nath Basak. His complaint is against the order of the Collector of Land Customs dated 24-1-1957 by which the Land Customs Collector confiscated the gold bullion and silver obsolete coins under Section 167 (8) of the Sea Customs Act read with Section 23A of the Foreign Exchange Regulation Act, 1947. These cold bullion and silver coins were seized on 2-8-1955 as being illegally and illicitly imported into India from Pakistan in contravention of Section 5 of the Land Customs Act, 1924 read with relevant Notifications mentioned in the Land Customs Collector's order issued under Section 8 (1) of the Foreign Exchange Regulation Act, 1947. The Land Customs Collector also held that an offence under Section 19 of the Sea Customs Act bad been committed as bring applicable under Section 23 of the Foreign Exchange Regulation Act, 1947.
2. Mr. Section Burman, learned Counsel for the applicant, challenged the order of confiscation on a number of grounds. His first ground is that the Land Customs Collector failed to notice and consider the most relevant document in his favour which, according to the applicant is the purchase or cash memo showing the purchase of some gold. His second objection is that the Land Customs Collector was wrong in applying the provisions of Section 178A of the Sea Customs Act and throwing the burden of proof upon the applicant. His third objection is that the Collector did not give him the option to pay fine in lieu of confiscation as provided in Section 183 of the Sea Customs Act as applied to Land Customs. Finally, Mr. Burman argued that the necessary conditions proving contravention of Section 5 of the Land Customs Act have not been satisfied.
3. It will be necessary in this case to have a bibliography of the sections of the relevant Statutes and the Notifications which have a bearing on the fate of this application. The reason why I say so is that the statutory mosaic in this case is so variegated and so difficult to find that it is best to have them in one place even in a judgment for the purpose of reference.
4. The first Statute with which this application is concerned, is the. Land Customs Act, 1924. It is a Statute which in its preamble states its purpose 'to consolidate, amend and extend the law relating to the levy of duties of customs and articles imported and expected by land from or to territory outside India.' Section 5 of the Land Customs Act is a material section for purposes of this application. In fact, the goods were seized in this case because they were supposed to have been illegally brought or imported to India from Pakistan in contravention of Section 5 of this Act. Section 5 of the Land Customs Act reads as follows:
'5 (1) Every person desiring to pass any goods, whether dutiable goods or not, by land, out of or into any foreign territory shall apply in writing, in such form as the Chief Customs Authority may, by Notification in the Official Gazette prescribe, for a permit For the passage thereof, to the Land Customs Officer in charge of a Land Customs station established in a Land Customs area adjoining the foreign frontier across which the goods are to pass.
(2) When the duty on such goods has been paid or the goods have been found by the Land Customs Officer to be free of duty, the Land Customs Officer shall grant a permit certifying that duty has been paid on such goods or that the goods are free of duty, as the case may be.
(3) Any Land Customs Officer, duly empowered by the Chief Customs Authority in this behalf, may require any person in charge of any goods which such officer has reason to believe to have been imported, or to be about to be exported, by land from, or to, any foreign territory to produce the permit granted for such goods and any such goods which are dutiable and which are unaccompanied by a permit or do not correspond with the specification contained in the permit produced, shall be detained and shall be liable to confiscation.'
5. The Land Customs Act although a sppa-rate Act is not an Act with salf-contained provisions but itself imports the application of the different provisions of the Sea Customs Act, The relevant section of the Land Customs Act by which this is done is Section 9. Section 9 of the Land Customs Act provides as follows:
'9 (1) The provisions of the Sea Customs Act, 1878 (VIII of 1878) which are specified in the Schedule, together with all Notifications, orders, rules or forms issued, made or prescribed thereunder, shall, so far as they are applicable, apply for the purpose of the levy of duties of Land Customs under this Act, in like manner as they apply for the purpose of the levy of duties of Customs on goods imported or exported by sea.'
The Schedule under Section 9 introduces diverse provisions of the Sea Customs Act and make them applicable to the Land Customs Act, As the Sea Customs Act is amended, necessary amendment is made in the Schedule of the Land Customs Act under Section 9 of the Land Customs Act. One example of such amendment material for the purpose of the present application is Section 178A of the Sea Customs Act introduced by the Sea Customs Amendment Act, 1955. Section 178A of the Sea Customs Act provides as follows:
(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
(2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may, by Notification in the Official Gazette, specify in this behalf.
(3) Every Notification issued under Sub-section (2) shall be laid before both Houses of Parliament as soon as may be after it is issued.' This has been added also to the Schedule under Section 9 of the Land Customs Act, 1924.
6. The next group of sections material for purposes of this application will be first Section 8 and then Section 23A of the Foreign Exchange Regulation Act, 1947. Now Section 8 of the Foreign Exchange Regulation Act 1947 provides:
'(1) The Central Government may by notification in the Official Gazette order that subject to such exemptions, if any, as may be contained in the notifications, no person shall excent with the general or special permission of the Reserve Bank and on payment of a fee, if any, prescribed bring or send into the States gold or silver or any currency notes or bank notes or coin whether Indian or Foreign.'
7. I shall presently set out the material portion of the relevant notifications:
8. Section 23A of the Foreign Exchange Regulation Act provides as follows;
'Without prejudice to the provision of Section 23 or to any other provision contained in this Act, the restrictions imposed by Sub-sections (1) and (2) of Section 8, Sub-sections (1) of Section 12 and Clause (a) of Sub-section (1) of Section 13 shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878 and all the provisions of that Act shall have effect accordingly except that Section 183 thereof shall have as if for the word 'shall' therein the word 'may' were substituted.'
9. Coming now to the Notifications relevant for purposes of this application it is necessary to refer to the following:
(1) The first Notification No. 12 (ll)-F. 1/48 is of 25-8-1948 published in the Gazette of India, Extraordinary, New Delhi, August 25, 1948. This notification is under Section 8 (1) of the Foreign Ex-change Regulation Act, 1947 which I have quoted above. The notification reads as follows:
'(1) In exercise of the powers conferred by Sub-section (1) of Section 8 of Foreign Exchange Regulation Act, 1947 and in super session of the notification of the Government of India in the late Finance Department No. 12 (11)-F. 1/47, dated 27-3-1947, the Central Government is pleased to direct that, except with the general or special permission of the Reserve Bank, no person shall bring or send into the Provinces of India from any place outside the Sub-continent of India or from any place in French or Portuguese territories in India,
(a) any gold coin, gold bullion, gold sheets or gold ingot whether refined or not, or
(b) any silver bullion, any silver sheets or plates which have undergone no process of manufacture subsequent to rolling or any uncurrent silver coin.'
The next material Notification is Notification No,12 (11)-F. 1/51 dated 27-2-1951. This notificationalso was issued under Section 8 (1) of the Foreign Exchange Regulation Act, 1947 and was only anamendment of the notification of 25-8-1948 to thefollowing extent:
'In the said notification for the words 'outside the Sub-continent of India or from any place in the French or Portuguese Territories in India' the words, 'outside India' shall be substituted.'
10. To complete the mosaic of the notifications I shall only set out the relevant expressions in Notification No. 12(11)-F. 1/47, already mentioned above, dated 25-3-1947 where the relevant words were:
'No person shall send into British India from any place outside India ......... any gold ......... or silver bullion,'
11. It is necessary at the outset to dispose of a preliminary objection to this order of confiscation which urged that no option to pay a fine in lieu of confiscation was given to the applicant under Section 183 of the Sea Customs Act, although Section 183 of the Sea Customs Act expressly says that when confiscation is authorised by that Act the officer adjudging it 'shall' give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit, and therefore makes the option obligatory. This argument fails to take notice of the fact that there is a modification of this provision. By Section 23A of the Foreign Exchange Regulation Act which substitutes the word 'may' for the word 'shall' it makes the option discretionary and no more obligatory. Failure, therefore, in this case by the Collector of Land Customs to give the option to the applicant to pay a fine in lieu of confiscation which he ordered does not vitiate his decision or his order.
12. One of the main objections to the present order of confiscation is that the Collector should not have applied the rule, of the burden of proof in Section 178A of the Sea Customs Act as applied to land customs. In Babu Lall v. Collector of Customs, Calcutta, (S) : 1983ECR1657D(SC) , Section 178A of the Sea Customs Act was held to be constitutional. The Supreme Court decided there that this Section 178A did not violate Article 14 of the Constitution. Mr. Burman at first argued that this section applied only to Sea Customs and not to Land Customs. That argument is of no substance because as I have already indicated that by amendment section 178A of the Sea Customs Act has been made applicable to the Land Customs Act. By Section 2 of the Land Customs Amendment Act, 1955 (No. XXXV of 1955) the schedule to the Land Customs Act, was extended inter alia by addition of Section 1.78A of the Sea Customs Act by incorporating the same in the schedule of the Land Customs Act.
13. Mr. Burman made two other points under this section. In the first instance, he contends that Section 178A of the Sea Customs Act is not retrospective in operation. His second point is that at any rate the provisions of Section 178A of the Sea Customs Act do not apply to uncurrent silver coin, which formed a part of the articles seized in this case.
14. In order to understand Mr. Burman's argument that Section 178A of the Sea Customs Act has no retrospective operation, it is necessary to have certain dates. The search in this case was made on 2-8-1955. There were three hearings, one on 4-11-1955 second on 23-8-1956, and third on 1-10-1956. The order itself was made on 26-12-1956. Now Section 178A of the Sea Customs Act was introduced into the Statute Book by the Amendment Act No. XXI of 1955 on 7-5-1955. Its further incorporation in the Land Customs Act was introduced by the Land Customs Amendment Act No. XXXV of 1955 on 24-9-1955. Mr. Burman's case is that his client, the applicant, imported these goods in December, 1948. Therefore, he says that in December, 1948, there was no rule like Section 178A of the Sea Customs Act throwing the burden of proof upon the alleged owner of the goods. Therefore, again he contends that Section 178A of the Sea Customs Act cannot be made applicable to his client, the applicant, because the importation of these goods was made before 1955 when these amendments came into force.
15. I am unable to accept Mr. Burman's contention on this point. The whole of the argument of Mr. Burman that Section 178A of the Sea Customs Act is not retrospective is based on the fallacy that he chooses an event by which he wants to show the retrospective operation of the Act but which event cannot be the right test, Section 178A of the Sea Customs Act is a section which I have already quoted above. It relates only to the evidentiary law of the burden of proving and says that where the goods to which that section applies are seized under the Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled shall be on the person from whose possession the goods were seized. Therefore, this section comes into operation when after the goods had been seized the time arrives for hearing that they are not smuggled goods. I quite agree and accept Mr. Burman's contention that Section 178A of the Sea Customs Act is not retrospective. Where I do not agree with him is his further contention that in this case there is retrospective application of Section 178A, I do not think there is any retrospective application of Section 178A to the facts of this application. The goods were seized as I have said on 2-8-1955 and the hearing did not commence before 4-11-1955 by which time both the Sea Customs Amendment Act and the Land Customs Amendment Act had come into force. Section 178A of the Sea Customs Act relates to procedural rights and discharge of onus of proof. The point of time with reference to which such procedural fights are to be applied and judged is when the time for the proof comes. The section says that when the goods are seized under the Act, then the burden of the proof will be on the person from whose possession the goods were seized to show that they were not smuggled goods. That stage arrives at the time of hearing. The hearing in this case before the Land Customs Authorities did not begin before 4-11-1955. It is quite true that when the search and seizure were made on 2-8-1955, only the Sea Customs Amendment Act had been passed introducing Section 178A of the Sea Customs Act but not its incorporation in the Land Customs Act which came later on the 24th September, 1955. But then again the time to apply Section 178A is when it comes to the stage of proof that the goods were not smuggled, and that stage of proof comes at the tune of hearing, and not at the time of the seizure of the goods. Section 178A of the Sea Customs Act applies under two conditions. The first condition is that the goods must be seized under the Act in the reasonable belief that they are smuggled goods. The second is that the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. On the facts, therefore, and on the dates as I have shown, the stage of proving and, therefore, of the burden of proof came on 4-11-1955 when Section 178A of the Sea Customs Act had already been incorporated in the Land Customs Act, I, therefore, must hold that the rule about burden of proof as contained in Section 178A of the Sea Customs Act as extended to the Land Customs Act was rightly applied by the Collector of Land Customs in his order.
16. I shall deal with the subsidiary point of Mr. Burman that Section 17SA of the Sea Customs Act does not apply to uncurrent silver coins later in this judgment after I have discussed the Notifications under the Foreign Exchange Regulation Act 1947 which are more appropriate for deciding that point.
17. The next objection of Mr. Burman is that at the time when the goods were imported there was no restriction to import those goods. In fact, he contends that there was no restriction on the import of gold and uncurrent silver coin in December 1948. This is on the assumption, which is seriously questioned by the Government, that the applicant imported these goods in December, 1948. But even on that basis of the applicant's case that he imported the goods in December, 1948, his case does not improve. Mr. Burman argues that under the Notification dated 25-3-1947 the prohibition was that no person should send into British India from any place outside India any gold or silver bullion. At the date of that Notification, there was no Pakistan. Pakistan came into existence on 15-8-1947 by the Indian Independence Act whereunder the two new Dominions of India and Pakistan were set up. The second Notification of 25-8-1948, which was prior to December, 1948 when the applicant alleges to have imported the gold and the uncurrent silver coin, used the expression 'any place outside the sub-continent of India'. On this Mr. Burman argues that the prohibition contained in the Notification dated 25-8-1948 was a prohibition on a person not to bring or send into the Provinces of India from any place outside the subcontinent of India and from any place in the French or Portuguese Territories in India any gold or silver bullion into India. According to Mr. Burman's argument, the expression 'sub-continent of India' used in that Notification of 25-8-1948 includes the new State of Pakistan created by the Indian Independence Act on 15-8-1947. I am unable to accent that interpretation of the expression 'sub-continent of India' in the Notification of 25-8-1948. I do not think that the 'sub-continent of India' in the Notification of 25-8-1948 should be given an interpretation which includes a foreign independent State like Pakistan. The 'sub-continent of India' there means, in my view, not only the territory of India within the Dominion of India as defined by the Indian Independence Act but also the Indian India or what used to be known as the Princely States in India which had not been integrated with India at that time. It is necessary to remember and recall that the Constitution of India had not come into force on 25-8-1948 when this Notification was issued. It would be odd indeed to accept Mr. Burman's interpretation of 'subcontinent of India' to include Pakistan by implication when even much smaller and less important geographical units as the French and Portuguese Territories were expressly included in that Notification. The historical evolution on this point will be clear from the last Notification dated 27-2-1951 where the words 'sub-continent of India' along with French and Portuguese Territories were replaced by the words 'outside India.' The reason is clear because by that date the Constitution of India had come into force and India had become a Republic on 26-1-1950. It was then no longer necessary to refer to the sub-continent of India because then all the States in Indian India had been integrated with the new Republic of India.
18. I, therefore, hold that in December, 1948 when the applicant alleges to have imported the gold and uncurrent silver coins from Pakistan there was a valid prohibition to do so by the Notification No. 12(1-1)/F. 1/48 dated 25-8-1948 and I interpret the words 'sub-continent of India' appearing in that Notification as not including Pakistan.
19. It remains now to take up the last objection of Mr. Burman which I consider to be the most substantial one that he pressed against this order of confiscation by the Collected of Land Customs. Briefly stated, his objection is that the Collector of Land Customs in this case failed to notice the most vital and important document in the applicant's favour. What he calls the most vital and important document is a cash memo dated 2-12-1948. This cash memo was produced by the applicant before the Collector of Customs on the 23rd August. 1956. This document and the attendant circumstances and its related production have certain suspicious features. I shall leave out for the time being the suspicious nature of this cash memo. I shall assume that it is a genuine document.
20. Mr. Burman's whole case is that the Collector of Customs did not even mention this document as among the documents produced at the time of the hearing, fie draws my attention to that part of the order where the Collector of Land Customs gives the list of the documents produced before him. That list does not include this cash memo. The Collector in his affidavit-in-opposition has said that this document has no bearing on the issue involved and that is why it was not necessary for him to mention that cash memo in the adjudication order.
21. Mr. Burman argued that it was no good that the Collector of Land Customs should say now in his affidavit that the document had no bearing on the issues involved before him. He should have said so in the adjudication order. Mr. Burman's complaint was that the Collector completely ignored the document and, therefore, failed to realise its effect. His subsequent explanation in the affidavit docs not improve the position. In other words, Mr. Burman's argument is that the Collector of Land Customs should have at least mentioned that cash memo in his older where ho was discussing and listing the documents produced before him, and then rejected it as being irrelevant. He tried on that basis to attract me with the House of Lord's decision in the General Council of Medical Education and Registration of United Kingdom V. Spacknel, 1943 AC 627, where Lord Wright at page 644 in his speech before the House said:
'If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
22. I am afraid that principle has no application whatever to the facts of this case. This is not a question of violation of any principle of natural justice although that is alleged. Failure to appreciate the effect of a document or to mention a document even though he considers it to De irrelevant is not violation of natural justice. It might be at the worst stupidity, it might at best be a wrong decision in law, but that is not violation of the principles of natural justice. If a man, for in-stance, is condemned unheard or without getting an opportunity to be heard, then the principle which Lord Wright spoke of could be of application, namely, it is no answer to say thereafter that even if he was heard, the decision would have remained the same. But as I say, this has no analogy with the facts of this case or any reliance on the point involved in this application.
23. I do not think that a Judge or a Tribunal or an Adjudicator has to refer to every document that is produced before him, specially when, according to him, rightly or wrongly, the particular document, the non-reference to which is complained of, is one which he thinks was irrelevant. The question, therefore, is whether in fact it was irrelevant. Now, what does the cash memo show? The cash memo shows that the applicant purchased on 2-12-1948 'Karachi gold (pucca) 75 tolas' at the rate of Rs. 105/- for the total price of Rs. 7,875/-. This is signed by one M. Section Basak, a suspicious surname having regard to the applicant's name. The cash memo' gives the address of the village and district of the purchaser applicant which normally a cash memo does not. It is produced not on the first day of hearing before the Superintendent on 4-11-1955. On 4-11-1955 the applicant stated before the Superintendent, Land Customs, Raigunj, that 'he had no documentary evidence to offer'. He added 'These goods were brought confidentially and secretly, so that the public may not be aware of his bringing of the goods'. He expressly said that he had no further evidence to offer as stated above. This statement was signed by the applicant himself with the date 4-11-1955. I direct this original statement to be filed with the records of these proceedings. But some-how or other even after that statement of 4-11-1955, this cash Memo was produced on 23-8-1956 before the Collector of Customs.
24. I fail to understand how this cash memo shows that the goods were imported to India from Pakistan in December, 1948. There is no identification whatever between the goods mentioned in the cash memo and the goods seized. In fact, if anything, they are far from identical. The seizure list or the detention slip which describes the articles seized is set out in paragraph 3 (r) of the affidavit of Ajit Kumar Roy, the Collector of Land Customs, Calcutta. It shows (1) a piece of gold weighing 7 tolas 11 annas with the inscription 'Karachi', (2) one piece of gold weighing 7 tolas 9 annas with the inscription Tine', (3) two pieces of gold bars weighing 23 tolas and 3 annas with the inscription 'Pac', (4) three gold pieces weighing 24 tolas 6 annas, and (5) one gold rod weighing 7 tolas 11 annas. Now, that is not the description in the cash memo. In fact, the total of these tolas and annas does not make up altogether the exact 75 tolas. An improvement is made on this point by the applicant saying that 5 tolas were used for his wife's jewellery. But even then there is a difference of about 8 annas which means a difference of Rs. 50/- in price. The gold seized shows gold of different qualities--Fine, Karachi and Pac. The cash memo shows only one kind of gold, and that at a flat rate.
25. Even apart from these considerations, the cash memo in my opinion does not prove that it was imported in December, 1948 from Pakistan to India. After all, the charge which the Land Customs Authorities were deciding was the illegal importation without permit of gold bullion and un-current silver coin under Section 5 of the Land Customs Act and Section 8 (1) of the Foreign Exchange Regulation Act and the relevant Notifications thereunder. The Cash Memo is not the permit required by Statute and the Notification thereunder. Illegal importation without permit is the charge or the offence. It is the applicant's case that he still lives in Pakistan, he comes and goes from Pakistan to India. In fact Mr. Burman when called upon to produce his passport said that his client, the applicant, was at the rime of the hearing of this application in Pakistan and he failed to produce the passport. If the applicant had produced his own-passport, then it could have shown whether he at ail came or crossed the frontier in December, 1948 and if so, when and at what date. On the other hand, he produced before the Customs Authorities the passport of his younger minor brother A. N. Basak for whose education and upbringing the applicant was supposed to be illegally importing, gold and uncurrent silver coins from Pakistan without the requisite permit.
26. The cash memo would have been a relevant document if the charge against the applicant was that he was dealing with stolen goods. The cash memo would have proved that he had purchased the goods against a price. The charge which he was meeting before the Land Customs Authorities was illicit import of that gold from Pakistan to India in contravention of Section 5 of the Land Customs Act without the requisite permit. That question has nothing to do with the cash memo and I agree with the Collector of Land Customs that the cash memo is entirely an irrelevant document in this connection. Non-reference to that Cash Memo in the order therefore has led to no injustice or miscarriage of justice.
27. This disposes of the question of the applicant's case that he imported these goods in December, 1948. Before I leave this branch of the case it now remains necessary to refer to a small part of this case relating to the uncurrent silver coins. Now Section 178A of the Sea Customs Act does not cover the uncurrent silver coins, but covers only the gold bullion. But I do not find that in this particular case the applicant has all been prejudiced first because I see no particular application of the rule of burden of proof under Section 178A of the Sea Customs Act against the applicant in respect of uncurrent silver coins. Mr, Burman's submission therefore on this point cannot be sustained on facts. The question of uncurrent silver coins comes under Section 8(1) of the Foreign Exchange Regulation Act, 1947 and the Notifications of 1948 to 1951. These notifications cover uncurrent silver coins. They could be brought only with the permission of the Reserve Bank. The applicant did not produce any permission from the Reserve Bank for these uncurrent silver coins. Therefore, he committed the offence and there is no question of burden of proof being thrown upon him under Section 183A of the Sea Customs Act. The permission of the Reserve Bank, if there was any, would have been with him. Even under the ordinary law he should have produced the permission under the ordinary rule of evidence as contained in Sections 101, 102 and 108 of the Evidence Act. He produced none.
28. The whole case of the applicant is that gold and silver were brought into India prior to the imposition of restriction on the import of gold into India under the Foreign Exchange Regulation. The applicant's case is that he sold a portion of his property in Pakistan to make provision for his younger brother who was living in India and the sale proceeds of the disposed property were invested in gold which was brought out in that form with the uncurrent silver coins. They were seized under a search warrant. The iron chest in which they were found was not voluntarily opened, but it had to be forcibly broken open. The detailed circumstances in which that was done, are stated in the Land Collector's affidavit. This chest was in the house of one Nripendra Nath Basak who is said to be the cousin of the applicant. He did not know what the chest in his house contained. The applicant's case is that he purchased this iron chest about 10 years ago from now. According to his statement before the Customs Authorities he brought the gold from Pakistan on different dates and not on one date. His case is that his younger brother came to India as a refugee after partition and for whose education he was making this provision. This younger brother was and is a minor and was supposed to be reading in the school and staying in the homo with the said cousin of the applicant. But the most relevant document which could have easily proved that fact of his coming over as a refugee, namely, the Refugee Registration Certificate, was not produced by the applicant. The gold pieces that were brought be the applicant bore Pakistan marks. They were not ordinary gold bullion obtained privately from ordinary bullion merchants. On these facts I have no hesitation in holding that the Collector was justified in making the order in question.
29. This disposes of all the objections taken by the applicant to the order of confiscation. As all the objections fail, the application must be dismissed with costs. The Rule is discharged and the interim orders, if any, are vacated.