ABRAHAM Vs. ADDL COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The question for consideration is whether the expression "a reasonable opportunity of being heard" in clause (c) of S.124 of the Customs Act, 1962, includes a right to cross examine persons who have not been summoned by the department as its witnesses, but whose statements are relied on by it in an enquiry against the petitioner. It is contended that such a right is derived from the principles of natural justice as embodied in the section.

(2.) The facts of this case are: The petitioner is the owner of car KLF. 4024 It is one of the several cars alleged to have been involved in smuggling activities on 14-11-1973. The car was seized by the Customs Officers on 15-11-1973 A notice was sent to the petitioner, together with copies of statements of certain persons, including that of the driver of his car, calling upon him to show cause as to why his car should not be confiscated under S.115 of the Customs Act, 1962. To this notice the petitioner sent Ext. P1 reply stating that he had no knowledge whatsoever of the alleged offence, that he had instructed his driver not to use the car for any unlawful purpose, that the trip sheet showed that the car had on 14-11-1973 gone to Irinjalakuda and returned to Cochin and again to Trichur and returned to Cochin at about 1 p.m. on the same day (both places being away from Kodungallur from where the smuggled goods are alleged to have been carried), and that his car was therefore not liable to be confiscated under S.115. On 20-8-1974 the petitioner was asked to furnish the names of witnesses he wished to examine at the time of personal bearing. Ext. P7 dated 6th September 1975 is the reply sent by the petitioner's advocate stating that Sri. P. C. Abraham (petitioner himself) and Sri. M. Abdul Kader were the two persons the petitioner wished to examine. Ext. P 3 is a letter informing the petitioner's advocate that the hearing would take place on 1-10-1974 and asking him to be present with the witnesses Apparently the hearing did not take place on that day. Ext. P 4 dated 30-9-1974 is a letter sent by the petitioner's advocate stating:

(3.) Ext. P6 order whereby the petitioner's car has been confiscated is impugned for the reason that the respondent did not give the petitioner a proper opportunity to show why his car was not liable to be confiscated. It is contended that the petitioner should have been given a due opportunity to cross examine the persons whose statements were relied on by the officer to the detriment of the petitioner, and that the failure on the part of the respondent to produce these persons for cross examination has resulted in violation of the principles of natural justice. It is submitted that the petitioner or his counsel or both of them would have been present at the appointed time if only he bad been informed that these witnesses would be available for cross examination The affidavit of the petitioner's advocate also speaks to that effect. It is not admitted by the respondent that the petitioner's advocate had asked for an adjournment of the case from the forenoon to the afternoon. It is not clear from the records whether any such adjournment was asked for or given. Be that as it may, the fact is that when the advocate did appear before the respondent, as stated earlier, all that he had to say was that his client had no case to answer as the department had not examined its witnesses at the enquiry. In the course of the argument, counsel for the petitioner Sri. V. Rama Shenoi submitted that the only evidence that was available to the department was the statements of one Mohammed Jafer and the petitioner's driver, A. S. Ahammed, both of whom were charged for the offence of transportation of smuggled goods. It is therefore contended that their evidence was tainted and no reliance should have been placed upon them. It is further contended that the petitioner's statement in Ext. P1 reply to show cause notice that his car had gone to Irinjalakuda and returned to Cochin and that it had again gone to Trichur and returned to Cochin on the very same day, as indicated in the trip sheet, had not been considered at all. Counsel submits that the case of the department was that the car had been used for the transportation of smuggled goods between Kodungalloor and Cochin and therefore the petitioner's contention that the car had not gone to Kodungalloor, as indicated by the trip sheet, ought to have been duly considered by the department before passing Ext. P6 order. It may be mentioned at this stage that neither the petitioner nor his counsel raised any such contention before the respondent. For, neither of them was present at the time of the hearing in the morning, and when the advocate appeared in the afternoon before the officer be did not raise this point. It may also be stated at this stage that this point had not been pressed in appeal, for no appeal was filed by the petitioner, although the statute provides for a right of appeal and then revision.