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Narandas M, Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ1303
AppellantNarandas M, kapadia;
RespondentUnion of India (Uoi) and ors.
Cases ReferredCharandas v. Asst. Collector of Customs
Excerpt:
- .....sea customs act that the provision of section 178-a would be attracted where it is shown that the customs officer seizing the gold had, at the time of actual seizure, either at the place where it was found or in the customs house where it was seized under a panchanama a reasonable belief in his own mind that the gold that he was seizing was smuggled gold. the inquiry officer thereafter would issue the notice to show cause to the person from whose possession the gold was seized, as to why the gold which was seized should not be confiscated under section 167(8) of the sea customs act. but he would do that only after considering the material placed before him by the investigating officers in order to enable him to find, as claimed by the investigating officers themselves, if at all that.....
Judgment:

Sabyasachi Mukhahji, J.

1. This appeal arises out of a judgment and order of Mr. Justice Chittotosh Mukherjee dated 4th of October, 1972. By the aforesaid judgment the learned Judge has dismissed the application Under Article 226 of the Constitution and discharged the rule nisi. There were two petitioners in the application Under Article 226 of the Constitution. They are the appellants to this appeal. The appellant No. 1 at all material times carried on business in buying and selling watches, watch parts and watch straps at a shop at No. 2, Brabourne Road, Calcutta under the name and style of Messrs. New Rex Watch Company. The said appellant is the sole proprietor of the said business. The appellant No. 2 is the son of appellant No. 1 and it is alleged he used to assist the appellant No 1 in the said business. On 23rd of September, 1968 the said shop of the appellant No. 1 was raided and searched by the customs authorities on the authority of a search authorisation issued by the Assistant Collector of Customs being respondent No. 4 herein. The customs authorities seized 58 pieces of wrist watches, the original bill and invoices relating to the same, the books of account and the Indian Currency amounting to Rs. 13,000/- from the said shop. The said seizure was made on the alleged belief that the said goods were smuggled goods and the amount of money represented the sale proceeds of smuggled goods. On the same date the residence of the appellants was raided by customs authorities and there was a search. The customs authorities seized one binocular, one ladies wrist watch and Indian Currency amounting to Rs. 1,14,900/- several books of account and other files. The appellant No. 1 had also a locker at the Oriental Bank of Commerce at No. 25, Brabourna Road, Calcutta in his own name and another locker in the Dena Bank in the Ashutosh Mukherjee Road, Calcutta in the joint names of the appellants Nos. 1 and 2. The said lockers were first sealed and then on the 7th of December, 1969, 59 pieces of wrist watches were seized from the Oriental Bank of Commerce. In this appeal the appellants challenged the validity of the said seizure of the goods from the locker on 7th of December, 1968 as well as the show cause notice dated 20th of March, 1969.

2. The first challenge is to the seizure of 59 pieces of wrist watches from the said locker at the Oriental Bank of Commerce. The appellants contend that the officer seizing the said goods was not or could not have been satisfied that the said goods were smuggled goods. Sub-section (1) of Section 110 of The Customs Act, 1962 enjoins that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, 1962 he may seize such goods. The proviso to the said sub-section stipulates that where it is not practicable to seize any such goods the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of the said officer. Section 111 of the Customs Act, 1962 deals with the confiscation of improperly imported goods. If the goods are smuggled or improperly imported the same are liable to confiscation. Therefore, to seize the goods the officer concerned must have reason to believe that the said goods are imporperly imported. It is, therefore, necessary, when a challenge is thrown to find out whether the officer concerned has in fact formed the belief and secondly, whether there were materials, relevant or germane upon which the authority concerned could have formed the belief. If there are some material upon which such belief could have been formed, the court is not concerned with the propriety of the belief or the sufficiency of the material. The above position is well settled by several decisions of the Supreme Court. Reference in this connection may be made to the decision of the Supreme Court in the case of M. A. Rasheed v. State of Kerala, : [1975]2SCR93 , Barium Chemical v. Company Law Board, : [1967]1SCR898 , and Calcutta Discount Co. Ltd. v. Income-tax Officer : [1961]41ITR191(SC) . In the seizure list the officer concerned has noted as follows.

The locker was broken open by a mechanic of Godrej Boyees Ltd., on requisition made by the Bank at the instance of Customs Deptt. in presence of the Bank's Representative as the owner of the locker failed to turn up in spite of repeated requests made in writing by the Bank authorities as well as by the Customs Authorities. As no documents covering the wrist watches were produced or forthcoming, they were seized on the reasonable belief that those are of smuggled origin or acquired possession illegally and are liable to confiscation under the provisions of the Customs Act, 1962.

3. Therefore, in the instant case it is apparent that the proper officer had formed the reasonable belief, The next question is whether there were any material relevant or germane upon which he could have formed the belief. Learned advocate for the appellants contended that there was no affidavit in answer to the rule nisi by the officer seizing the goods. He submitted that the allegation of the appellants that there were no material for the formation of the belief remained uncontradicted. When a challenge of this nature is thrown it is desirable that the person who has personal knowledge should place before the court facts upon which proper adjudication becomes possible. In this case, however, in the seizure list the officer concerned has stated the ground upon which he has seized the goods. Perhaps because there was nothing further to be stated that the officer concerned has not made any affidavit. It is indisputable in this case that wrist watches were foreign made therefore those were imported wrist watches. The appellant No. 1 carries on the business of selling wrist watches. Therefore, it was expected that he would have material or document to indicate his lawful possession of the wrist watches. He was called upon to produce such documents. He failed to do so. In the above background if the officer concerned forms the belief that the goods in question were smuggled goods, in our opinion, it cannot be said that he has acted unreasonably or that he has acted without any relevant or valid material. It is not in every case that : the absence of any explanation regarding the possession of goods that there would be a presumption that the goods in question are smuggled goods. The belief whether certain goods are smuggled goods or not must depend upon the facts and circumstances of the case. In the background of the facts and circumstances of the case, in our opinion, it cannot be said that there were no materials upon which the officer concerned could have acted in the belief as he did. In the aforesaid view of the matter we are unable to sustain the challenge to the seizure.

4. The next contention that was urged in this appeal was regarding the validity of the show cause notice. On the said show cause notice three different contentions were urged in this appeal. The first and the main contention of the appellants was that the show cause notice had been issued not by the proper officer. Section 122 of the Customs Act, 1962 deals with the authority of the different officers in respect of adjudication of confiscation and penalty. It authorises the Collector of Customs or the Deputy Collector of Customs to make the adjudication without any limit, but where the value of the goods liable to confiscation does not exceed Rs. l0,000/ the Assistant Coll lector of Customs is authorised to make the adjudication. In the instant case it is not in dispute that the Collector or the Deputy Collecor of Customs was the proper adjudicating authority. The impugned show cause notice was, however, issued by the Assistant Colllector of Customs. It was contended that on behalf of the appellants that such notice was invalid. In this connection it is relevant to refer to the provisions of Sections 123 and 124 of the Customs Act, 1962. The said sections are to the following effect :

123. Burden of proof in certain cases.- (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, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the official Gazette specify

124. Issue of show-cause notice before confiscation of goods, etc.--

No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person--

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty ;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein ; and

(c) is given a reasonable opportunity of being heard in the matter :

Provided that the notice referred to in Clause (a) and the representation referred to in Clause (b) may, at the request of the person concerned, be oral.

On behalf of the appellants it was contended that adjudication proceeding commenced with the issue of the show cause notice. Issue of the show cause notice was part of the adjudication proceeding. The adjudication proceeding must be in accordance with the principles applicable to quasi-judicial proceeding. Initiation of the adjudication proceeding must be upon application of mind by the adjudicating authority that there is a case for adjudication. Therefore, the officer adjudicating should issue the show cause notice because the duty to issue show cause notice was inextricably linked up with the power of adjudication and as such there could not be any bifurcation between the power Or the right of adjudication and the duty to issue show cause notice. It was therefore, submitted that as in this case admittedly the adjudicating officer had not issued the show cause notice the initiation of the proceeding was without jurisdiction. Reliance in this connection was placed on several decisions. It cannot be disputed that show cause notice is part of the adjudication proceeding. It is an important element in out jurisprudence that no man should be condemned unheard. Reasonable opportunity to make representation against prejudicial action proposed is cardinal to the principles of natural justice. In this case this requirement of natural justice has been codified. But the controversy in this case, in our opinion, cannot be solved by merely looking at the question whether the show cause notice is part of the adjudication proceeding or by considering whether the adjudication proceeding begins with the show cause notice. On bebalf of the appellants reliance was placed on the case of Rayala Corpn. v. Director of Enforcement AIR 1970 SC 494 : 1970 Cri LJ 588. But in our opinion the said decision is of no assistance to the appellant in the present controversy. Reliance was also placed on behalf of the appellants in the case of East India Commercial Co. Ltd. v. Collector of Custom. : 1983(13)ELT1342(SC) . There the Supreme Court emphasized dealing with the provisions of Section 167(8) of the Sea Customs Act, 1878 that a notice was a sine qua non of a quasi judicial proceeding and a proceeding was initiated by issue of the notice. As mentioned hereinbefore the facts that in a proceeding of this nature there must be notice and such notice initiates the proceeding, in our opinion, do not resolve the question whether the officer who has to adjudicate must issue the notice himself. Reliance was also placed on behalf of the appellants in the case of C. S. and Manufacturing Co. v. State of Maharashtra : 1972CriLJ329 . That case however dealt with Section 251 of the Criminal Procedure Code of 1898 and the Supreme Court emphasised in view of the provisions of the Code that at the stage of the framing of the charges the court had to apply its judicial mind for considering whether or not there was ground for presuming the commission of the offence by the accused. That view, in our opinion, in view of the statutory provisions with which we have to deal in this case, has no relevance : to the present case. Reliance mainly however was placed on a Bench Decision of the Bombay High Court which requires careiul consideration. In the case of M. G. Abrol v. Amichand : AIR1961Bom227 the Division Bench of the Bombay High Court was concerned with Section 178-A of the Sea Customs Act, 1878.

There the Bombay High Court observed as follows :

We had an occasion to deal with this question only recently in Appeal No. 62 of 1959 decided on 25th August, 1960, which arose out of Miscellaneous Petition No. 1 of 1959, and we have expressed our opinion on the basis of the interpretation of Sections 178 and 178A of the Sea Customs Act that the provision of Section 178-A would be attracted where it is shown that the Customs Officer seizing the gold had, at the time of actual seizure, either at the place where it was found or in the Customs House where it was seized under a panchanama a reasonable belief in his own mind that the gold that he was seizing was smuggled gold. The Inquiry Officer thereafter would issue the notice to show cause to the person from whose possession the gold was seized, as to why the gold which was seized should not be confiscated Under Section 167(8) of the Sea Customs Act. But he would do that only after considering the material placed before him by the investigating officers in order to enable him to find, as claimed by the investigating officers themselves, if at all that the gold seized by them was under a reasonable belief that it was smuggled gold. What the Inquiry Officer, as expressed by us in the judgment in that case, should do is to consider the material placed before him by the investigating officers before issuing the show cause notice itself, so that in case he comes to the conclusion that there was such a reasonable belief in the minds of the seizing officers at the time of the seizure, he could Straightway point out to the persons to whom the notice is addressed that the burden would lie upon them to show that the gold that was seized by the officers was not smuggled. In other words, we are of the opinion that it is at the stage of issuing the show cause notice that the Inquiry Officer has got to decide upon the course that he would adopt, viz. whether, if he is not satisfied that there was such a reasonable belief in the minds of the Customs Officers who seized the gold at the time of the seizure, he would require the Customs Department itself to produce necessary evidence to show that the gold was smuggled, or, in case he is satisfied on the material placed by the Investigating Officers before him that there existed in the minds of seizing Officers a reasonable belief that the gold they had seized was smuggled gold at the time of the seizure thereof call upon the persons to whom the notice is addressed to adduced all the evidence that they would desire for the purpose of showing that the gold was not smuggled gold.

5. On behalf of the appellants emphasis was laid on the fact that the Bombay High Court : had emphasized that the investigating officer would give notice for adjudication throwing the onus on the party only after considering if there were materials for issue of the notice, in other words only after application of his mind to the facts of the case. Therefore, it was argued that the Bombay High Court had emphasized that the issue of the notice required application of mind and as such such issue of notice must be treated as an integral part : of the adjudication proceeding and must be dealt with by the officer who is adjudicating. We are, however, unable to accept this position. As we have noticed Under Section 123 the burden of proof where any goods have been seized in the reasonable belief that they are smuggled would be on the party from whose possession the goods are seized. This burden would fall on the party only when the proper officer has seized the goods on the reasonable belief that they are liable to confiscation. If there is a seizure until contrary is shown and established it must be presumed that the goods in question are liable to confiscation and as such the burden that they are not smuggled goods would be on the party from whose possession the goods have been seized by virtue of Section 123 of the Customs Act, 1962. It is only thereafter that a show cause notice is required to be given. Therefore, in that context in our opinion it is not correct to state that it is obligatory for the officer adjudicating to issue the show cause notice. The Officer adjudicating will have to decide whether a notice has been properly or improperly given. Giving of the notice does not require such application of mind which is a part of the adjudication proceeding. After seizure there is prirna facie ground for adjudication proceeding. In that view of the matter we are in agreement with the view of the learned trial uiiue that giving of the notice Under Clause (a) of Section 124 is ministerial in nature. Reliance was also placed on the decision of the Gujarat High Court in the case of Bappala v. Collector of Central Excise AIR 1965 Guj 135. We are of the opinion that this case does not carry the point of the appellants any further on this aspect of the matter. Reliance was also placed on the decision of the Kerala High Court in the case of Hamanaud v. Collector of Customs : AIR1965Ker286 , There the learned Judge observed that Section 124 of The Customs Act, 1962 required that the party should be given an opportunity of being heard before the Collector who had to make the adjudication in that case. Tho representation had to be made before the adjudicating authority and the personal hearing must be also before him. If the notice Under Section 124 was defective in this respect in as much as it only indicated that the party should appear with his evidence before the Assistant Collector of Customs and not before the Collector such opportunity could not be said to have been given to the party and there would be miscarriage of justice. In our opinion it was cause in the notice it was not indicated that representation hould be made before the proper adjudicating authority or there would be personal hearing before the proper adjudicating authority that the learned Judge found the notice to be defective. The learned Judge in that case was not concerned with a situation where in the notice it has been stated that representation should be made and hearing would be given by the proper adjudicating authority but the notice was given by an officer apart from the proper adjudicating authority. Therefore, in our opinion, appellants cannot have much assistance from the said decision. Reliance was also placed on the well known decision of the Privy Council in the case of Mungoni v. Attorney General of Northern Rodesia 1960 AC 336 at p. 350, in aid of the submission that duty to give notice and power to adjudicate were so interwoven that it was not possible to separate the one from the other so as to put the duty on one person and power on another. In our opinion, this principle will have no application to the facts of the instant case. There is authority of the Collector or the Deputy Collector in the facts of the case to adjudicate on the question of confiscation of the goods. Statute requires that before such adjudication is made notice should be given. It is true that notice is a condition precedent for an order of adjudication. But giving of the notice is not, in our opinion, interwoven with the power to adjudicate on the question of confiscation. In the premises, if the notice had been given by the authority who is not an adjudicating authority in our opinion no principle of law is violated. In this connection we may refer to the Adjudication Manual which contains the administrative direction regarding departmental proceeding issued by the Central Board of Excise and Customs. In Chapter III, Clause (15) provides that there was no legal objection to the issue of the show cause notice by officers other than the adjudicating authority ; in the said instruction it has been further laid down who are the Officers who can issue notice Under Clause (a) of Section 124 of the Act. It is true that if under Clause (a) of Section 124 of the Act it was obligatory to be a valid notice that the adjudicating authority should issue such notice then the administrative instructions would not have mattered. But in this case as we have found that there was ne statutory bar for any other officer issuing the show cause notice the administrajtive instruction can be looked into for the purpose of finding out whether there has been any arbitrary exercise of power in issuing the notice. In the aforesaid view of the matter we are unable to sustain the challenge to the notice on this aspect of the matter.

6. The next contention that was made was that the notice in question was vague. In this connection our attention was drawn to paragraph 25 of the notice. In the preceding paragraph of the notice the facts were set out and thereafter paragraph 25 stated as follows :

Under the provisions of Section 112 of the Customs Act 1962 any person, (a) who in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation Under Section 111 of the Customs Act 1962 or abets the doing or omission of such an act or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation Under Section 111 of the Customs Act 1962 shall be liable to penal action.

On behalf of the appellants it was urged that it was not clearly stated how the Section 112 of the Customs Act had been violated. In our opinion, that was not necessary, The respon dents had drawn attention to the facts which according to them made the appellants liable and had also drawn attention to the relevant provisions of law. In that view of the matter, in our opinion., the notice in question cannot be condemned as being vague or laconic. In this connection learned advocate for the appellants relied on the observations of the Division Bench of this Court in the case of Charandas v. Asst. Collector of Customs : AIR1968Cal28 , Whether a notice is vague or not would depend upon the facts and circumstances of the case. In the facts and circumstances of this case we are unable to accept the position that the notice is vague. Reliance was placed also on the said decision and on the aforesaid paragraph to contend that the impugned notice indicated a closed mind. Reading the notice in its entirety we are unable to accept the position that the notice indicated closed or pre-determined mind.

7. For the aforesaid reasons the contentions urged in support of this appeal fail and the appeal is accordingly dismissed. There will be no srder as to costs.

M.M. Dutt, J.

8. I agree.


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