JETHMAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal by certificate granted by the High Court of Punjab arising out of a Petition filed in that court by the appellant for quashing the order of the Collector of Central Excise and Land Customs, Delhi made on September 9, 1959 by a writ of certiorari or other appropriate writ.

(2.) The facts are as follows. On July 24, 1958 the police of Bikaner arrested one Mohammed, son of Hayat at Surasar. One Ghulam Rasool alleged to be a Pakistani national was also arrested earlier in village Randhisar. The said two persons were arrested on the allegation that they had come from Pakistan and Mohammad had brought with him smuggled gold. Another person also named Mohammad, son of Gayi, was subsequently arrested in village Surasar on the ground that smuggled gold had been recovered at the instance of Mohammad s/o Hayat from a kund i. e. a small water reservoir belonging to Mohammad son of Gayi. The police claimed to have recovered 692 tolas of gold in 69 bars bearing foreign markings. A camel alleged to have been used by the two persons for their travel and transport of the gold was also taken possession of by the police. The camel and the gold were later on handed over to the customs officials of Bikaner and the same were seized under the plea that the gold in question had been imported into India illicitly. On interrogation all the three persons, namely, the two Mohammads and Ghulam Rasool admitted the offences and disclosed that the gold had been smuggled from Pakistan at the instance of the appellant, "a resident of Bikaner who had managed the whole affair." The Superintendent, Land Customs Ferozepur issued a notice to all the four persons mentioned above where it was stated in reference to the first named three persons that "the accused in their statements admitted that they had smuggled this gold from Pakistan for one Shri Jeth Mal s/o Fazir Chand, resident of Bikaner." By the said notice all the four persons were intimated that the gold and camel were liable to be confiscated and the two Mohammads and Ghulam Rasool were liable to penal action under Sections 5 and 7 of the Land Customs Act, 1934, Section 167 (8) of the Sea Customs Act 1878 read with Section 19 as made applicable by Section (3) 2 of the Imports and Exports Control Act, 1947 and Section 167 (8) of the Sea Customs Act, 1878 read with Section 19 of the Act as made applicable by Section 23-A of Foreign Exchange Regulation Act, 1947. All the four persons were required to show cause as to why the gold and the camel should not be confiscated and further penal action be not taken against them. They were also asked to indicate in their written explanations as to whether they wished to be heard in person or through a representative before the case was adjudicated so that a date could be fixed for the hearing of the case, if considered necessary. The appellant's name does not find a place in the concluding paragraph of this notice (although those of the other three appear there) to the effect that if no cause was shown against the action proposed to be taken within ten days from the date of the receipt of the memo or if the named persons "did not appear when the case was posted for hearing it would be decided ex parte on merits of the facts already on record". There can however be no doubt-and indeed there is no dispute-that the written notice was addressed to all the four persons whose names appeared at serial numbers 1 to 4 at the foot thereof. According to the Customs Department the receipt of the notice was acknowledged by all the said persons but no reply had been received within the stipulated time from any of them. The notice bore the date August 19, 1958. Nearly one year afterwards i.e. on 9th August 1959 the Collector of Central Excise passed an order in the above case on the basis of the record and the statements of the persons. According to this order the two Mohammads and Ghulam Rasool had on interrogation disclosed that the gold had been smuggled from Pakistan at the instance of the appellant who had managed the whole affair. Further "there was a regular gang of smugglers operating in Bikaner aided and abetted by the appellant". The Collector of Central Excise held that the evidence brought on record was sufficient to establish that the said gold had been imported into India through unlawful means. He therefore ordered confiscation of the same under Section 167 (8) of the Sea Customs Act, 1878 read with Section 19 there of as made applicable by Sec. 23-A of the Foreign Exchange Regulation Act. He also imposed a personal penalty of Rs. 5,000 on each of the two Mohammads and Rs. 50,000 on the appellant.

(3.) On November 9, 1959 the appellant filed a Writ Petition challenging the order of the Collector of Central Excise on various grounds. The first ground was that these statements, if any, alleged to have been made by the two Mohammads and Ghulam Rasool were inadmissible in evidence as having been made while they were in police custody. Secondly, there was no material on record to connect him with the alleged smugglers or with the smuggled gold or with the act of smuggling and there was no basis for a reasonable belief that he was a person concerned in the importation of the gold. Yet another ground was taken that the maximum penalty which could be imposed under S. 167 (8) of the Sea Customs Act was only Rs. 1,000. The appellant also alleged that he had submitted cause through his counsel by a written reply dated August 27, 1958 under a certificate of posting which had not been taken into consideration by the Collector of Central Excise. He claimed to be entitled to a reply thereto and to a personal hearing before disposal of the matter. He submitted that the order of September 1959 was void as being contrary to the rules of natural justice.