M K S ABUBACKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner's house was searched on 28-12-1985 and among other things, certain diamonds were seized. On the very same day, the diamonds were assayed by certain experts brought by the respondents. Annexure to the mahazar shows the opinion of the experts and the weight as well as the value of the diamonds seized. THE opinion of the expert was that the goods in fact were diamonds and they were of particular value and weight. THE petitioner had also signed the annexure containing the opinion of the expert. A statement was also recorded from the petitioner, but, the petitioner promptly retracted the statement on 29-12-1985. A show cause notice was issued on 13-6-1986. THE petitioner submitted his replies on 2-12-1986, 6-12-1986 and February, 1987. Personal hearing was given. Witnesses were examined and written submissions were also called for. It is the case of the petitioner that the evidence adduced by him at the enquiry clearly tallies with his case and the expert opinion on the value and weight of the diamonds. In short, according to the petitioner, if on the basis of the materials already collected, the adjudication proceeds, the petitioner is confident that the charge against the petitioner will automatically fail. It is at this juncture, that on28-12-1989, the second respondent issued a notice proposing to re-assay the diamonds on 4-1-1990 by a Chemical Examiner of the Customs House. On2-1-1990, the petitioner objected to the proposed re-assay of the diamonds. Again on 30-1-1990, the second respondent proceeded to say that the precious stones are scheduled to be re-assayed on 12-2-1990. THE petitioner again submitted his objections on 5-2-1990 stating that the second respondent has no jurisdiction to order re-assay of the goods after the examination of nearly 26 witnesses in the adjudication proceedings. It is the letter dated 30-1-1990 which is under challenge in this writ petition. 2.Mr. Habibullah Basha, learned Senior Counsel for the petitioner has taken me through the relevant provisions of the Customs Act beginning from Section 2(1), Sections 100 to 111, 122, 124, 125 and 127. THE sum and substance of the argument of the learned counsel for the petitioner is that Sections 100 to 110 of the Customs Act provide for search, seizure and arrest. In other words, those provisions relate to the gathering of materials and investigation. Section 122 of the Act relates to adjudication on the question of confiscation and levy of penalties. Section 124 of the Act provides for the issue of show cause notice and Section 125 of the Act provides for confiscation and imposition of fine in lieu of confiscation. THE argument is that once the stage of investigation and collection of materials is over, it is not open to the adjudicating authority to suggest or order a reinvestigation into the matter. THE further argument is that if such a power is conceded considerable prejudice will be caused to the parties against whom action is taken. This is because the entire evidence has been let in and according to the petitioner, the documents have been filed to show that the diamonds were purchased from Bombay, and are legitimate. It is suggested that there is no room for doubting the value of the goods as found by the experts and as disclosed in the evidence adduced by the petitioner. While so, solely with a view to get over the defence case, the second respondent has now resorted to the procedure of re-assaying the goods. According to the petitioner, the whole idea is to load the value of the goods and nullify the documents and evidence already adduced by the petitioner. It is also contended that prosecution has been commenced on the basis of the evidence already collected. THE petitioner will be seriously prejudiced if the respondents are now permitted to re-assay the goods. One other contention is that absolutely no reasons are given for the present action to re-assay the goods. It is not as if there were materials to show that the earlier opinion was found to be defective on the basis of credible evidence and, therefore, the department thinks it necessary to re-assay the goods. It is also contended the Expert who assayed the goods was also examined as witness before the second respondent and no suggestion was made to the Expert on the incorrectness of the opinion already tendered by him. 3.Mr. Jayachandran, learned counsel for the respondents argues that the second respondent is after all an adjudicating authority, who can be properly called a 'fact finding authority'. THErefore, there is nothing wrong if the adjudicating authority decides to reinvestigate the matter and collect more particulars for making good the charge. No doubt, learned counsel for the respondent agrees that no reasons have been given for the present action to re-assay the goods. 4.Looked at from one angle, it may appear that there is nothing wrong if the goods are re-assayed. After all, it is the very same goods which are going to be examined again and in that sense, the petitioner cannot claim any prejudice. But, if one goes deeper into the matter, one can easily understand the prejudice that will be caused to the parties if the second respondent is permitted to have such powers, especially, after the entire evidence is over. It is something like a Commissioner appointed in Civil Court giving his report, and without any reason, the Commissioner being directed to give a fresh report. This is precisely what has happened in this case, because, the second respondent proceeds to direct re-assay of the goods without any reason at all. I am convinced that the evidence by way of documents which have been produced by the petitioner in answer to the show cause notice may get nullified if ultimately, the second report is different from the first report of the Expert. Of course, one cannot surmise as to what will be the second report. But, the question is why should the petitioner be subjected to such a risk. It is not also contended that the expert who had earlier examined the goods is not conversant with diamonds. He is a well known jeweller and there is no reason at all to suspect the earlier opinion of the Expert. I am clearly of the opinion that the case of the petitioner both in the departmental proceedings in answer to the show cause notice as well as in the criminal proceedings will seriously be prejudiced, if the second respondent is permitted to re-assay the goods. THEre is also one other reason why the second respondent should not be permitted to re-assay the goods. It is certainly not open to the second respondent now to enhance the value of the goods which seems to be the only reason for the present action. If permitted, the same will be clearly to the detriment of the petitioner. THE argument of the learned counsel for the petitioner is that the adjudicating authority is in the position of a Judge and he cannot himself now turn round to be a prosecutor by directing the collection of fresh evidence. Though the comparison may not be justified because the adjudicating authority is only a quasi-judicial authority and it cannot be said that he acts as a prosecutor by directing the re-assay of the goods. For the reasons already given by me that on the facts and circumstances of the case, namely that evidence has been completely adduced in the case in answer to the show cause notice and on the basis of the opinion of the Expert already given, it would be improper to permit the second respondent to have a re-assay of the goods. I once again repeat that my conclusion is based on the fact that evidence has already been let in and the petitioner will be prejudiced, if the charge itself is amended by giving a different opinion on the subject goods. In this view of the matter, the impugned letter dated 30-1-1990 is vitiated. It is accordingly, quashed. THE writ petition is allowed. THEre will be no order as to costs.