BERNADO STEENHOLF ULTRICH Vs. COLLECTOR OF CUSTOMSCOCHIN

JUDGEMENT

(1.) The petitioner a Bolivian National said to be of German Dutch origin and resident in Vienna, was a passenger from Colombo to Genoa on the Italian passenger vessel M. V. Australia which called at Cochin fa regular port of call on its homeward voyages for the purpose of taking on board passengers bound for Europe) on 5-12-1958. With him was his wife and, as part of his baggage, a Volks-wagon motor car also booked from Colombo to Genoa. Three or four hours after the vessel was moored in the inland waters of the Cocbin Port, the Chief Customs Inspector who, on information that the petitioner was engaged in smuggling gold into India and taking out Indian currency had bad a watch kept over the petitioner's movements but found that the petitioner was making no attempt to land or get into touch with anyone on shore, boarded the vessel with a few of his subordinate officers as he was entitled to under Section 171 of the Sea Customs Act, 1878. He asked the petitioner whether he had any Indian or foreign currency or gold in his possession and thereupon the petitioner made the oral declaration that he had only $ 2105 in American currency, $ 60 worth of travellers' cheques and Rs. 250/,- in Indian currency. The petitioner and his wife and their cabin were searched (under Sections 169 and 171 of the Act), but nothing was found in excess of what the petitioner had declared. The Chief Inspector thereupon decided to search the car of the petitioner (under S, 171), but since this would have meant the detention of the vessel beyond the scheduled time for sailing, the Master of the vessel "agreed to off-load the car and to leave the petitioner at Cocbin for enabling him to be present during the search of his car." Accordingly, the petitioner and his car werd taken off the vessel (whether by force as alleged by the petitioner or by persuasion as stated by the Customs authorities does not very much matter), but, be-fore doing so, the Chief Customs Inspector obtained from the petitioner a written declaration to the effect that he had U.S.A. $. 1605 and Indian Rs. 250/- in his possession. (He had given $ 500 to his wife who was allowed to continue her voyage). It was late by then, and the petitioner was lodged for the night in the Malabar Hotel while a proper guard was kept over the car. The next day the car was searched by the Customs officers with the aid of a mechanic in the presence of the petitioner and one Mr. Gnehm, a German knowing representative of the local agents of M. V. Australia, who acted as an interpreter since the petitioner could speak very little English. Concealed in a secret, specially constructed chamber in the central channel of the chasis of the car were found 37 bundles of Indian currency notes of the value of Rs. 322,000 and U.S.A. currency notes of the value of $ 44,900. These were seized under a mahazarnama (Ext. D 1) attested by the petitioner, by Mr. Gnehm, and by the mechanic. Mr. Gnehm further certifying that he had translated its contents to the petitioner and the petitioner appeared satisfied with the correctness thereof,

(2.) On 11-12-1958, the Chief Inspector questioned the petitioner; with the help of Mr. Gnehm and recorded from him the signed statement (Ext. D2) in which he admitted that the car was his, but disowned the currency notes found in it and further suggested that the secret chamber must have been constructed and the notes concealed therein bv one Alexander Bauchner whose acquaintance he had made at his Colombo hotel and who had borrowed his car on the 30th of November and returned it the following day saying that be would probably meet the petitioner at Genoa where be was going by air and take a lift in the car from Genoa to Vienna. (In this statement also Mr. Gnehm has certified that it was read out to the petitioner in German and was admitted by him to be correct.) On 15-12-1958 the petitioner was served with a show cause notice (Ext. P1 dated 13-12-1958) by which the Customs Collector asked him to show cause within seven davs why the currency notes "recovered from his ear should not be confiscated under clauses 8 and 73 of Section 167 of the Sea Customs Act and penal action taken against him under Section 167 (8) and 167 (73) ibid". Also why his car should not be confiscated under Section 168 of the Act. On 1612-1958 the petitioner was arrested (under Section 173 of the Act) and taken before a magistrate. (It would appear that some time before this, but when exactly does not appear, the $ 1605 in U.S.A. currency and Rs. 250/- in Indian currency which the petitioner was carrying on his person were seized and detained by the customs officers). He was remanded to custody and was in custody till 21-1-1959 when he was released on bail. In the meanwhile, on 28-12-1958, Mr. Bhaskara Menon, an advocate, had entered appearance on his behalf be-fore, the Customs Collector and by a letter (Ext. D3) of the same date asked for copies of certain records in the case (which were duly granted) and also questioned the Collector's authority to hold an inquiry while the criminal trial against the petitioner was proceeding. Mr. Bhaskara Menon also informed the Customs Collector that he had received the show cause notice Ext. PI only on 18-12-1958 and had been able to obtain instructions from his client through an interpreter only on the 26th. He explained that for these reasons it had not been possible to submit any explanation within, the time allowed. On 6-1-1959 the petitioner was served with a second show cause notice requiring him to show cause within five days why action should not be taken against him under Clause (8) of Section 167 of the Sea Customs Act read with Section 23A of the Foreign Exchange Regulation Act, 1947 and why the currency notes found in the car and the car itself should not be confiscated under clauses (34) and (35) of Section 167 and under Section 168, of the former Act. (The earlier notice Ext. P1 pro-ceeded on the basis that the petitioner was unlawfully taking the currency notes out of India whereas the later notice, Ext. P2, alleged further that the petitioner had unlawfully brought the American currency notes into India). There was no response to either notice, and on 15-1-1959, the Customs Collector, acting under S, 182 of the Sea Customs Act, passed an order (Ext. P4) by which lie imposed a penalty of Rs. 6000/- on the petitioner under clauses (8) and (73) of Section 167 of that Act and confiscated the currency notes found in the car under clauses (8), (34), (35) and (73) of Section 167 and the car itself under Section 168. On 22-4-1959 the petitioner brought the present petition against the Customs Collector under Article 226 of the Constitution praying for a writ of certiorari quashing the proceedings, Ext. P4, and for a will of mandamus directing the Customs Collector to restore his motor car with all its contents (including the Indian currency notes to the value of Rs, 3,22,000/-and the American currency notes to the value of $ 44,900) as also his personal papers and the $ 1603 and Rs. 250/- seized from his person. (On a misreading of the Collector's order which, in pursuance of Section 183 of the Sea Customs Act, gave the petitioner the option of paying a fine of Rs. 5,46,000/-and taking back the currency notes for local consumption (but not for export without a permit from the Reserve Bank) the petitioner has also asked for "a writ of prohibition prohibiting the Collector of Customs from releasing the notes for local consumption". There was never any question of releasing the notes for local consumption to anyone but the petitioner).

(3.) The petition alleges that the petitioner was under duress from tbe time ho was taken off the ship until the time of the order of the Custodian Collector and even thereafter, that he was not allowed to consult a lawyer as freely as he would have liked, that his ignorance of the English language in which the show cause notices were couched and the absence of facilities for translation prevented him from under-standing these notices or giving proper instructions to Mr Bhaskara Menon who had been engaged for him, tbat he was compelled by the Customs Officers to make the statement Ext. D2, and that in the circumstances the opportunity given to him bv the show cause notices was illusory and so-called adjudication by the Customs Collector, a mere one-sided farce enacted without hearing him. All this has been denied by the respondent, and the facts I have set forth above -- and I have set them out at some length for this purpose--are sufficient to show that there is no substance whatsoever in the petitioner's allegations. A lawyer entered appearance for him on 28-12-1958 after, according to the letter Ext. D3 written by the lawyer to tbe Customs Collector, taking instructions from the petitioner through an interpreter on the 26th, and the lawyer also obtained copies of all the documents he thought relevant to the petitioner's defence. Both the show cause notices, Ext. PI dated 13-12-1958, and Ext. P2 dated 6-11959, asked the petitioner whether he desired to be heard in person and also told him that he could produce with his reply any evidence in his possession to show that the currency notes seized from his car had been legally acquired and exported from the country and also in support of any other contention he might have. They gave him sufficient time for a reply but there was no reply and no request for a hearing or for time. It was only on 15-1-1959, nine days after the second show cause notice, that the impugned order Ext. P4 was passed, and it is quite apparent that the charge that tho adjudication was one-sided and did not give the petitioner sufficient opportunity to defend himself, is a baseless charge. And tha charge that tbe petitioner was compelled to make the statement, Ext. D2, becomes meaningless when we find the very case put forward in Ext. D2, put forward now on bis behalf. There is nothing in Ext. D2 that tho petitioner wishes to disown.