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Bal Kissan Kejriwal Vs. the Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberSuit No. 164 of 1956
Judge
Reported inAIR1959Cal533,1959CriLJ1063
ActsSea Customs Act, 1878 - Section 167, 167(8) and 167(37); ;Constitution of India - Article 226
AppellantBal Kissan Kejriwal
RespondentThe Collector of Customs and ors.
DispositionApplication dismissed
Cases ReferredPalriwala Bros. Ltd. v. Collector of Customs
Excerpt:
- .....recites that fact and puts on record that his solicitor sri k. khaitan stated that the applicant signed documents which he was asked to sign, but he did not know the nature of the documents. the collector of customs rightly disbelieved that plea of innocence because after all the applicant is a graduate, was a student for law and was said to be learning business administration. in this connection it is necessary to state that kanhaya lal kejriwal is the father of the applicant and was himself a director in that very firm of messrs. palriwala bros. ltd., at the material time. it appears also from the documents that the applicant signed as export superintendent of m/s. palriwala bros. ltd. 10. in the decision and the order of adjudication the, collector of customs has also expressly.....
Judgment:

P.B. Mukharji, J.

1 This is an application by Bal Kissen Kejriwal alias Bal Krishna Kejriwal under Article 226 of the Constitution for a writ of Mandamus or Certiorari and prohibition in respect of proceedings under Sections 167 (3) and 167 (8) of the Sea Customs Act read with the Import and Export Control Act,1947. Actually two proceedings are mentioned in the petition and its prayers. One started with the notice to show cause No. S-37-255/55P (Part) II dated 7-2-1956 and the other started with the notice to show cause No. S37-272/55P dated 3-3-1956. Mr. R.C. Deb, learned Counsel for the applicant, has withdrawn this petition in so far as it relates to the first notice to show cause No. S37-255/55P (Part) II dated 7-2-1956. He was allowed to do so without prejudice to the rights and contentions of any of the parties.

2. The order complained against is dated 19-6-1956, but it was despatched on 25-7-1956. The order imposes a personal penalty of Rs. 30,000/-on the petitioner and directed that such penalty should be paid within a week. It is signed by S. K. Srivastava, Additional Collector of Customs.

3. Some of the points urged in this petition are already covered by my judgment delivered on 23-12-1957 in Matter No. 140 of 1956 in Palriwala Bros. Ltd. v. Collector of Customs, Calcutta, : AIR1958Cal232 . Mr. Deb for the applicant has not pressed those points on which I have already come to a decision in that case. He does not abandon those points but having regard to my views already expressed in that judgment, he does not press them before me.

4. He has pressed before me in this application only four points of objection against this order imposing a penalty of Rs. 30,000/- on the petitioner. His first objection is that the petitioner did not get any opportunity to examine the documents on which he has been found guilty of an offence under the Sea Customs Act. His second objection is that the order imposing a penalty of Rs. 30,000/- does not state on what basis the penalty is imposed, namely, whether it is imposed on the test that the penalty may not exceed three times the value of the goods under Section 167 (8) of the Sea Customs Act. He says that the value of the goods is not stated in the decision and order of the Collector of Customs. His third objection is that the petitioner is not a person concerned in the offence within the meaning of the third column of Section 167 (8) of the Sea Customs Act. His fourth objection is that when a number of persons, more than one, are concerned in the offence under Section 167 (8) of the Sea Customs Act, the total of penalties imposed on these different persons for the same offence cannot exceed three times the value of the goods. It is his client's case that here the total of all penalties imposed for the offence under Section 167 (8) of the Sea Customs Act on different persons exceeds that limit. The basis of his contention is that the words 'any person' in column 3 of Section 167 (8) of the Sea Customs Act, when taken in plural, mean the penalty must be jointly and not separately computed so that the total of all penalties does not exceed the maximum.

5. The first objection that the petitioner got no opportunity to examine the documents is a question of fact. That he got an opportunity to represent his case and even to take a trained Solicitor with him and that he was actually heard along with the Solicitor are not disputed. The case that the applicant now makes that he wanted to see the documents but was given no opportunity to see them, is a plain afterthought. My reasons for coming to that conclusion may be stated briefly. The notice to show cause was given to the petitioner on the 3rd March, 1956, containing the fullest details of the cause and the facts on which it was based. It appears as an annexure to the petition, and I need not recapitulate the details mentioned there. In essence the charge was thatthe applicant attempted to export to Holland groundnut oil cake by misdescribing it as Sesame cake or Gingelly cake which bore a much lesser duty than groundnut oil cake and also misdeclaring the weight of the goods in the shipping bill. It is stated in the charge that the misdeclaration of the description and the weight of the goods in the shipping bill appeared to be made with intent to save duty amounting to Rs. 25,655/-. It was distinctly stated in paragraph 2 of the notice to show cause, that the Shipping Bill Guarantee Form and the G. R. I. form for the alleged consignment were all signed by the applicant.

6. In answer to that notice to show cause the Solicitors for the applicant Messrs. Khaitan and Co. addressed a letter dated 6-3-1956 to the Customs. Not a word is said in that letter that the applicant wanted to examine or see the documents as the Shipping Bill Guarantee Form and the G. R. I. form mentioned in the notice to show cause. All that was said there in that letter of the Solicitors were :

(1) that the applicant was a Law student and used to attend the office of Messrs. Palriwalla Bros. Ltd. for learning work and was a young man of 19 years of age;

(2) that he was asked to sign certain papers in good faith and without understanding them or knowing their contents and that it was not possible for the applicant to remember what documents were signed by him;

(3) that the applicant never dealt in any export or import business nor has any knowledge of either the groundnut oil cake expeller or sesame oil cake and procedure for exporting the same.

The request was made in that letter of the solicitors dated 6-3-1956, that the Customs should drop the proceedings before them and should also ask the Special Police to drop the criminal case already started against him.

7. To this letter the Customs replied again on 13-4-1956. In that letter the Collector of Customs expressly stated that Bal Kissen Kejriwal had not only signed the documents in connection of which the memo to show cause was issued but he was also found to have signed several other documents, e.g., letters to the employees of the firm of Messrs. Palriwala Bros. Ltd. and their associate firms and also certain account books. It was also expressly stated in the letter of the Customs dated the 13th April, 1956 that the applicant signed most of the other documents as B. K. Kejriwal or Bal Kissen Kejriwal and it was not understood why he signed the documents leading to the issue of the show cause memo as 'Bal Kissen' only.

8. Even at that stage no demand was made by the applicant to see these documents. In fact Messrs. Khaitan and Co., the applicant's solicitors, again wrote in answer on 28-4-1956. In that letter of 28-4-1956 also not a word is said that the applicant wanted to see or examine any documents which it was said he had signed. All that is said very significantly appears in the following lines :

'So far as the signatures alleged to have been made by our client, our client has already stated that it is not possible for him to remember as to how and on what papers he put his signature. As previously stated our client put his signature on such documents and in such manner as he was called upon to do.'

8a. On 17-5-1956, the Collector of Customs wrote to the applicant granting him an interview at 3.30 P.M., on 22-5-56. In that letter he expressly allowed the applicant to make final submissions in writing before that date of interview and it was expressly said there that if he failed to turn up for interview or to make any submissions in writing, the case would be decided without any further notice to him on the basis of the evidence on the record. The petitioner's solicitors on 21-5-1956 wrote for an adjournment of the date of interview. That adjournment was granted by the Customs' letter, dated the 2nd June, 1956 fixing the date 18-6-56 at 3.30 p.m. 'for finalising the adjudication proceedings.' There again it was expressly stated, 'please note that if your client fails to turn up for interview on the appointed date and time, the case will be decided on the basis of the evidence on the record.' The interview did take place on 18-6-1956. The order of adjudication imposing the penalty was made on 19-6-1956.

9. Until therefore the order of adjudication was finally made imposing the penalty, I find no demand on record by the applicant that he at any stage wanted to see any document. In fact, at the interview on the 18th June, 1956 the applicant not only came himself but was accompanied by his solicitor Sri K. Khaitan who also appeared before the Additional Collector of Customs. The order of adjudication itself recites that fact and puts on record that his solicitor Sri K. Khaitan stated that the applicant signed documents which he was asked to sign, but he did not know the nature of the documents. The Collector of Customs rightly disbelieved that plea of innocence because after all the applicant is a Graduate, was a student for Law and was said to be learning business administration. In this connection it is necessary to state that Kanhaya Lal Kejriwal is the father of the applicant and was himself a director in that very firm of Messrs. Palriwala Bros. Ltd., at the material time. It appears also from the documents that the applicant signed as Export Superintendent of M/s. Palriwala Bros. Ltd.

10. In the decision and the order of adjudication the, Collector of Customs has also expressly stated that he invited the attention of Sri K. Khaitan and the applicant to the effect (1) that the applicant signed as Balkissen only and not as Bal Kissen Kejriwal in some of the documents which are annexed to the petition and (2) that the applicant's father's statement in connection with another proceeding was that he did not know his own son's signature. In fact the Collector of Customs says that Sri Khaitan described the conduct of his client

'as an unfortunate instance that the documents relative to the present case should have been signed by Shri Balkissen Keiriwal as 'Balldssen' only. Shri Khaitan could not offer any explanation on other points. He merely sought to repeat that his client Shri Balkissen Kejriwal was innocent. He admitted, however, that owing to the relationship existing between Shri Kejriwal's family and the Palriwala's (Shri Gajanand Palriwala was reported to have married a cousin sister of Shri Balkissen Kejriwal) they had acted according to their advice, to safeguard the interests of the Palriwalas.'

11. Now, there is no affidavit by Shri K. Khaitan to say that any of these statements in the decision and the order of the Collector of Customs with respect to what happened at the interview on 18-6-1956 was wrong.

12. This much is at any rate clear that until the date of adjudication on 19-6-1956, no case of any opportunity being denied to the applicant of seeing documents was ever made. In fact, this was made only after the order of adjudication had been made, and in the letter of the 2nd July, 1956 written by Messrs. Khaitan and Co. to Additional Collector of Customs. This is the first time that the request was made for inspection of all the documents on which the Customs relied. This again was not only after the order of adjudication had been made but was only in answer to the Customs' letter dated 25-6-1956 where it was distinctly stated that the applicant and his solicitor's explanation had been rejected for the reasons stated there. This letter was written in connection with the other case with which I am not concerned, but it referred to the interview had on 18-6-1956. But the applicant's solicitors' letter, dated 2-7-1956 could certainly have been written immediately after the interview on 18-6-1956 and not in answer to the Customs' letter if the solicitor really thought that the interview had not gone in the way as he thought it would.

13. All this massive array of facts and correspondence shows that the applicant's objection of no opportunity to examine documents is a mere afterthought. The only submission on behalf of the applicant on this point is that he did not know about the order of 19-6-1956 as it was not despatched until 25-7-1956, and therefore before 25-7-1956 his solicitors wrote the letter of 7-7-1956 conveying the request to inspect documents. I do not think that answer improves the position. The fact is that the order of adjudication had been made; it does not matter whether that was known to the applicant on the day when the order was made. The fact further is that in answer to the notice to show cause and the subsequent letters which I have analysed above no case was made out for inspection of documents and no case was made out at any stage before adjudication that there was any such demand by the applicant and it was refused and that the applicant therefore did not have a fair opportunity.

14. For these reasons I hold on the facts that there is no substance in this objection. I hold further that the applicant had had ample opportunity ever since the notice to show cause dated 3-3-1956. He had also opportunity, as I have stated above by quoting from letters written by the Customs, to submit in writing his points of objection. I therefore overrule this objection.

15. It was then contended as a point of second objection to the order that the order itself does not indicate the value of the goods and that the penalty imposed was not in excess of three times the value of the goods under the 3rd Column of Section 167 (8) of the Sea Customs Act. I do not think it is necessary to recite in the order the value of the goods and that the penalty is being imposed on the principle that it does not exceed three times the value of the goods. All that is necessary in my view is that when the order for penalty is challenged the Customs must be prepared to show that it does not exceed the statutory limit, namely, three times the value of the goods. It is plain from the order in question that this is what has been done. In fact, taking this point and the order itself and looking at no other document it is clear that by the mis-declaration both of the description and the weight of the goods in the shipping bill the applicant was attempting to save duty amounting to Rs. 25,655/-. If the duty be Rs. 25,655/- then that alone would suggest that the goods would be worth much more and therefore on that basis the penalty of Rs. 30,000/- will be well within the three times limit of the value of the goods. Reference is also made in the order to the shipping bill. The shipping bill shows that the declared value of the goods is Rs. 23,987/6/-. I am, therefore, satisfied that the order cannot be questioned on the ground that it does not in so many words and expressly state that it has imposed a penalty of Rs. 30,000/- on the principle that it does not exceed three times the value of the goods. The obvious fact is that this penalty does not exceed three times the value of the goods. I overrule this objection also.

16. The third objection taken to the order is that the applicant, is not a ''person concerned.' That objection is based on the language in the third column of Section 167 (8) of the Sea Customs Act. The relevant words of the Statute are :

'Any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods.'

Mr. Deb's contention is that before a person is penalised, he has to be a person concerned in such offence. According to the applicant, he was a young man and although a Graduate and for some time a student of law, he was only an apprentice in Palriwala Brothers Ltd., but his father was a Director, According to this argument he did not know anything about the export of these goods and he was not concerned with them. The evidence against him is almost massive, and I think incontrovertible. The applicant signed the most important and necessary statutory documents prescribed under the Sea Customs Act and Foreign Exchange Regulation Act in respect of this consignment. He signed them as a person discharging important functions. In fact, he signs as 'Export Superintendent.' The guarantee to the Shipping Company is signed by the applicant himself. Without that guarantee, no export is possible. That guarantee shows that the applicant guaranteed to the Shipping Company any short-fall and also against any penalties, including even those under Section 167 (8) of the Sea Customs Act. It is a guarantee to save the Shipping Company harmless. I should have thought it is one of the most indispensable documents in the matter of export. Secondly, he signs the G. R. I. forms, again a very indispensable document. Without such a document, foreign exchange involved in export does not become possible, Thirdly, the applicant has signed the very invoices relating to the consignments as 'Export Superintendent.' The photostatic copies of these vital documents pre annexed to the affidavit-in-opposition of Subarna Kumar Srivastava affirmed on 1-3-1957. It shows that the Foreign Exchange document known as 'G. R. I. Form' contains a declaration by the applicant signed by him as 'Exporter' to the effect :

'I hereby declare that I am the seller/consignor of the goods in respect of which this declaration is made and that the particulars given above are true, and (a) that the invoice value declared is the full export value of the goods and is the same as that contracted with the buyer;

(b) that this is a fair valuation of the goods which are unsold.

I/My principals undertake that I/they will deliver to the bank mentioned below the foreign exchange/ rupee proceeds resulting from the export of these goods on or before........'

The contract also is signed by the applicant on behalf of the buyers. The photostatic copy is also annexed to the said affidavit.' The invoices with promise to pay and payment by drafts at sight are also signed by the applicant as the Export Superintendent.

17. If on these facts a person does not become one concerned with export, then I do not know on what he would. It is unnecessary for me to discuss the legal subtleties about the word 'concerned' for I am satisfied that in any view of the present facts such a person as this one who signs almost all the relevant shipping documents not only material but indispensable for export, is a person concerned within the meaning of the third column of Section 167 (8) of the Sea Customs Act. I, therefore, overrule this third objection.

18. The fourth and the last objection to the order is based on the interpretation again of the third column of Section 167 (8) of the Sea Customs Act. I have already quoted the language relevant for the purpose on this point. Now the facts are not clearly stated in the present proceedings on which this point is based. In fact, it is not taken as a point at all expressly in the whole petition which is by no means an example either of brevity or of precision inasmuch as it runs into 62 paragraphs. But I permitted Mr. Deb to argue the point if he could make the point good.

19. It is based on the facts that for the same attempt to export under Section 167 (8) other penalties have been imposed on other persons concerned and that those penalties, if added to the present one, will exceed three times the value of the goods. Mr. Deb's construction of the language of the penal clause is that the expression 'penalty not exceeding three times the value of the goods' is the total penalty in respect of the offence, no matter who is the person concerned who is being penalised. If there are three persons, then the total penalties on the three separately must not exceed three times the value of the goods. It is Mr. Deb's argument that the expression 'any person' and the other expression 'penalty not exceeding three times the value of the goods' were intended to fix both the individual and the total limit if there is more than one individual. He tried to make a distinction by reference to items 29 and 31 where the word 'each' appears in order to show that each penalty was expressly said to be separate in these items but not so in Section 167 (8). I do not think that Mr. Deb's analogy with items 29 and 31 is at all accurate. In those items two separate classes of persons are mentioned--the person by whose authority the goods are landed or shipped, and the person in charge of the boat, and therefore it is said that each shall be liable to a penalty. No such question arises here. Therefore, there is no need or utility to use the expression 'each.' Then Mr. Deb drew my attention for comparison to Section 167 (37) where the word 'every person' is used. In order to do what the. Customs have done in this case. Mr. Deb says there should have been the words 'every person' and not 'any person' in Section 167 (8). I have tried my best and hard to understand the difference between 'every person concerned' in any such offence in Section 167 (37) and 'any person concerned' in any such offence in Section 167 (8) of the Sea Customs Act. I am unable to see the difference and I would read and interpret 'any' and 'every' to be interchangeable and synonymous. That 'any' is used in one item and 'every' in another could not, in my view, in this context produce any different result.

20. After all, the point depends on the construction of the words 'any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods' in Section 167 (8) of the Sea Customs Act. The offences are specified in the first column of the Statute. It includes an attempt to export. There are five different paragraphs in Section 167 (8) first column. They cover offences under Sections 18 and 19 of the Sea Customs Act. On principle I do not see why I should limit the interpretation of the expression 'any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods' in the manner Mr. Deb wants. After all, any person who commits an offence becomes guilty of that offence, and that offence is individual to him and he thereby incurs the statutory penalty. The fact that there are many others who have committed the same offence in respect of the same thing cannot, in my opinion, reduce the penalty by a process of sharing the penalty between different offenders. If two persons are caught in the act of attempting to commit a theft of the same object and they are convicted, I should be surprised to be told that the punishment could only be joint and not separate and that the punishment in such case should be shared by criminals jointly. I have never heard of this doctrine before. As a novelty I do not find any logic to support it. Mr. Deb tried to argue that the object of Sea Customs Act was not penalty, but revenue. I think they are both deterrent and fiscal. In fact, the object of the Sea Customs Act will appear from the preamble which says that it is an Act to consolidate and amend the law relating to the levy of Sea Customs-duties. But penalties are imposed to protect this revenue from Sea Customs-duties. I do not see why the penal provision should, therefore, be outside the scope and object of the Act. After all, penalties, whether compensatory or deterrent, are imposed with a view to defend and protect the levy of proper Sea Customs duty and the revenue arising therefrom. I, therefore, overrule this fourth objection.

21. As all these objections fail, this application is dismissed with costs. I discharge the Rule and the interim orders made herein.


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