A ALMEIDA Vs. COLLECTOR OF CUSTOMS MADRAS I

JUDGEMENT

(1.) THESE two connected petitions are to quash the order of the respondent dated September 1, 1959 imposing a personal penalty of Rs. 5, 000/-in one of them and a similar penalty of Rs. 1, 000/- in the other, under section 167 (8) of the Sea Customs Act, 1878. The same order confiscated 98 watches found to have been smuggled from Singapore into this country, but these petitions do not impugned the confiscation. On January 16, 1959, a Cargo supervisor of Sheik Mohammed Rowther and Company by name, N. Srinivasan , on interception by a customs officer, was found to carry on his person 66 watches stitched to a cloth belt. Srinivasan's statement disclosed that A. Almeida, who is the petitioner in W. P. No. 143 of 1960, the chief Steward of "state of Madras" and Menino Vaz, another Steward in the same ship and the petitioner in the other Writ Petition were in the habit of smuggling goods from Singapore to Madras and pass them out by Srinivasan through Custom's barriers, and that on this occasion 66 watches, out of which 50 were Titoni watches, 14 Steel Favre-leuba watches, 1 Favre-leuba rolled-gold watch and one Roamer Rolled gold watch were handed to him by Almeida for safe transport out of the Customs, and on the previous day a consignment of 32 watches were delivered to him for a similar purpose by Menino Vaz. On the strength of the statement taken from Srinivasan, the Customs Officials would appear to have searched No. 5 Tank Street, Royapuram, Madras, where Almeida and vaz were tenants, and in that search found a cloth bag hanging in a corner of the lavatory attached to the house containing 31 Titoni Watches and one favre-leuba watch and Indian currency notes of the Value of Rs. 5, 232. Almeida, who was in the house, disclaimed ownership of the bag with its contents; but, in his statement given on January, 17, 1959, admitted that he and Menino Vaz had brought watches during November and December, 1958 from singapore and utilised Srinivasan for transporting the smuggled goods out of the Customs free of duty, and that Srinivasan was paid commission for this service. Almeida was supposed to have also admitted that the 66 watches seized from Srinivasan belonged to him. Menino Vaz also gave statement in which he said that he and Almeida had entered into an arrangement whereby Almeida used to buy watches in Singapore and deliver them to him for concealment in cloth belts by sewing the watches to the belt even while on board, and on arrival of the vessel in Madras, he used to hand the watches over to Srinivasan for removal out the harbour. He also admitted that the 32 watches seized out of the 98 watches belonged to him. On the strength of these statements, the Assistant collector of Customs called upon the petitioners as well as Srinivasan to show cause why they should not be proceeded against under Section 167 (8) of the Sea customs Act read with Section 3 (2) of Imports and Exports (Control) Act, 1947 for importing or being concerned in the importation of the aforesaid watches in contravention of Section 19 of the Sea Customs Act read with Section 3 (1) of the Imports and Exports (Control) Act, and as to why the currency notes and the contraband goods seized should not be confiscated. The petitioners disclaimed any ownership of the contraband goods and the currency notes. Almeida, in his reply, besides disclaiming the goods and the currency notes, alleged (1) that he was forcibly taken to the Custom House on the night of the seizure and a statement was recorded from him under duress, (2) that the allegations made against him by Srinivasan and Vaz were forced out of them, and (3) that he had no connection whatsoever with Pereira in his smuggling activities.

(2.) THE Collector of Customs, as seen from his order, observed that he had carefully examined the case in all its aspects in the light of the explanations given and contentions put forward by Srinivasan, pereira and the petitioners, and was satisfied that the petitioners were persons actively and knowingly concerned in the unauthorised importation of the watches since November, 1958. So far as Vaz was concerned he declined to make any reply to the show cause notice on the ground that pending a criminal prosecution, the matter should be treated as Sub Judice. He would appear to have asked for a departmental action only after the conclusion of the criminal proceedings, but that was not acceded to by the departmental authorities. In the circumstances, therefore, the Collector of Customs made the impugned order.

(3.) THERE remains, for consideration, the first point urged by Mr. Vaz with considerable force. He contended that the only material before the Customs Collector to find his clients guilty of an offence under clause (8)of Section 167 were the three statements, each by Srinivasan, Almeida and Vaz, and that Almeida clearly mentioned, in his reply to the show cause notice that none of these statements was voluntary, and that the statement of Srinivasan, even if voluntary, was a false one. Learned Counsel urges that it is but elementary that when such a contention is raised, it was the plain duty of the customs Collector to have applied his mind to the question and satisfied himself for stated reasons that the statements were voluntarily taken and they represented truth. This duty, according to the learned Counsel, the Customs collector totally failed to discharge. Equally strenously, the learned additional Government Pleader urges that the order itself shows that the customs Collector had applied his mind, and he draws my attention to the sentence in the order. "i have carefully examined the case in all its aspects in the light of the explanations given and contentions made by sarvashri Srinivasan, Pereira, Vaz and Almeida. " * I do not think that this one single observation of the customs Collector is sufficient compliance with the requirements of law and justice. When a point of such a nature was raised, he could not in my opinion merely say that he had examined all the aspects, and leave the matter, at that. The Customs Collector has not even said, anywhere in his order, that he was satisfied, even for reasons not disclosed, that the statements, at least the one from Almeida, were voluntarily given and, in any case, the statement represented the truth. It is true the petitioners did not ask for an oral enquiry. But the complaint of the petitioners is not that they were not given an oral enquiry. Their grievance is that the Collector made no effort, as seen from his order, to apply his mind at all to the reply of Almeida and that he had, in order formally, to satisfy the law followed the procedure of issuing a show cause notice, calling for a reply and then making the order without any serious consideration of the points made out in reply. It is difficult to say that there is no force in the contention so urged by the petitioners.