LALA GOPIKISSEN GOKULDAS Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) THIS is an application by one Lala Gopikissen Gokuldass under section 45 of the Specific Relief Act and Order 13, Rule 7 (d) of the original Side Rules, for issuing a writ in the nature of a Mandamus directing the respondent, the Collector of Customs, Madras, and all his officers and subordinates to forbear from collecting or raising or taking any other steps whatsoever to recover the fines and/or penalties levied on the applicant in respect of the bills of entry dated 6th December, 1950, 20th January, 1951 and 19th February, 1951, or dealing in any manner with the 12 Diesel engines covered thereby, and to direct the respondent and his officers and subordinates to issue orders permitting the clearing of the goods relating to the aforesaid bills of entry, without any penalty or fine, subject only to the payment of such levies or duties or other charges as may be leviable or recoverable for such goods duly and lawfully imported.

(2.) THE 12 Diesel engines in question were imported under two licences, exhibits, P-3 and P-4, issued by the Deputy Chief Controller of imports, Calcutta, in 1950, allowing the petitioner to import by sea into India diesel engines above 20 H. P. of the value of Rs. 2, 00, 000 and Rs. 6, 00, 000 respectively. But, actually, the petitioner imported 12 Diesel engines of 20 to 22 H. P. each, relying on a certain order of the Bombay Customs Collector that diesel engines of 20 to 22 H. P. could be imported under such licences, and after ascertaining from the manufacturers about a custom like that. Now, he relies also on an order of the Calcutta Customs Collector allowing the import of 20 to 22 H. P. Diesel engines under licences like these for importing Diesel engines above 20 H. P. THE Madras Customs Collector held that the licences in question would not allow or authorise the import of these 12 engines of 20 to 22 H. P. as they were not clearly above 20 H. P. (the basic 20 being there, in 20-22 ). Various letters shown to him from manufacturers and others, including the order of Bombay Customs Collector that such engines would come within the term " above 20 H. P. " covered by these licences, did not make the least impression on him. He held to his views, and under section 167 (8) of the sea Customs Act, confiscated all the 12 Diesel engines, but allowed the petitioner either to clear the engines in question and use them for home consumption after paying Rs. 70, 550 in all, as fines, or to re-ship the goods to the senders on paying various lesser sums, which need not be detailed here, as the petitioner is not interested in reshipping the goods and never had the idea of doing so. THE petitioner refused to pay the fine of Rs. 70, 550 as the price of the 12 engines was only Rs. 72, 000 and he thought that this fine nullified the concession or indulgence granted to him under the Act and amounted to an illegal order passed without judicial discretion, and, so, has filed this petition.

(3.) SO we are only left with the first part of this argument. There I agree with Mr. V. C. Gopalaratnam. Prima facie the petitioner is proved to have believed honestly that he could import Diesel engines of 20 to 22 H. P. under the licenses. Exhibits P-3 and P-4 and he had some ground for doing so, as the Bombay Customs Collector had already held like that, and as other people also told him so, including the makers and the manufacturers. It is also a point for consideration whether a company should not be prohibited from putting up such minimum, and maximum H. Ps to prevent people, like the petitioner, from being misled and getting into such trouble. A man may think that though the figure 20 is there as the base, he will escape as the figure 22 is there at the apex and is clearly above 20. It is, of course, illogical to think so. Just as a man cannot be held to have escaped so long as his feet are caught hold of and only rest of the body has escaped outside the window, so too, so long as the figure 20 H. P. remained, the fact that 22 H. P. also was mentioned, will not help the petitioner, as the machines were not clearly above 20 H. P. Still, that will only show that view of the respondent, holding that the Diesel engines in this case could not be imported under the licenses produced, was right. It will not show his draconian order regarding the fines, in lieu of confiscation, to be either right or to have been the result of a judicial exercise of the discretion vested in him under the law which empowered him to adjudge the offence, and deal with it, as all Courts and Judicial and quasi-judicial Officers in India are expected to do, with understanding, skill and sympathy and in the light of justice, equity, and good conscience, (in hindu Law parlance, (Yukti, Buddhi, dharma and nyaya) and not according to whims and caprices or whatever comes uppermost to the mind. I have no doubt whatever, that, in the circumstances of this case the proper order to pass (in the light of justice, equity and good conscience) regarding these 12 engines would have been to direct the petitioner to pay the full customs duty due thereon (it is said to be about 51/4 per cent of the value of the engines imported) and also 121/2 per cent, of the total value, as fine, in lieu of confiscation, for importing engines not allowed under the licences granted. Naturally, I would modify the order of the respondent like that, and issue a direction in the nature of mandamus to the respondent, if I had the jurisdiction to do under S. 45 of the Specific Relief Act.