(1.) THE following Judgment of the court was delivered by
(2.) THIS appeal has come to us on a certificate granted by the High court of Judicature at Calcutta that the case is a fit one for appeal to this court.
(3.) THEN there was an appeal which was heard by a division bench consisting of Das and Mookerjee JJ. That bench held that the proceeding under the Sea Customs Act was in the nature of a proceeding in rem and an order of confiscation or penalty passed in such a proceeding was not a quasi judicial act, but an administrative or executive act, in respect of which no application for the issue of a writ of certiorari under Art. 226 of the Constitution lay. On a construction of s. 8(3) of the Foreign Exchange Act, as it stood at the relevant time, it held that the restrictions mentioned therein had a double effect and the remedies available under s. 167(8) of the Sea Customs Act and under s. 23 of the Foreign Exchange Act were cumulative in nature. It said: ' The former remedy (meaning the remedy under the Sea Customs Act) is intended to levy the customs duties and is mainly directed against the goods; the latter is penal, intended to punish the person concerned in the act of smuggling. There is thus no question of the former proceeding prejudicing the latter proceeding. ' Accordingly the division bench held that the first ground on which Bose J. had held the impugned order to be bad was not sustainable. With regard to the conditions imposed in the impugned order for the release of the confiscated gold, it held that the invalidity, if any, of the imposition of such conditions did not affect the main order of confiscation. It said Section 183 casts an imerative duty on the officer adjudging confiscation to give the owner of the goods an option to party such a fine as the officer thinks fit in lieu of confiscation. The duty so cast is an exercise of jurisdiction by the officer concerned quite separate from the exercise of his jurisdiction under section 167(8) imposing confiscation and penalty. If any illegality has attached in the matter of exercise of his jurisdiction under section 183, the illegal condition may be set aside. ' In the result, it accepted the appeal and set aside the judgment and order of Bose J.