(1.) This Writ Appeal has been preferred against the order in W.P. No. 13125 of 1992 [reported as Ibrahim Ismail v. Tlte Superintendent of Customs, Madras Airport and Ors. in ] dismissing the writ petition of the appellant for a declaration that the proviso to Section 124 of the Customs Act, 1962, hereinafter referred to as "the Act", providing for giving of notice referred to in Clause (a) and representation referred to in Clause (b) of Section 124 may be oral at the request of the person concerned, is unconstitutional and violative of Articles 14, 21 and 300-A of the Constitution of India. There were two other prayers in the writ petition ancillary to the main relief prayed for. Having regard to the limited scope of the constitutional validity of the proviso to Section 124 of the Act, it is unnecessary to set out the facts in extenso, except to state that by order dated 29-6-1992, passed by the second respondent herein, confiscation of certain goods and imposition of penalty had been ordered. Before the learned Judge, several grounds were urged by learned Counsel for the appellant to support the stand of the appellant that the proviso to Section 124 of the Act is unconstitutional but none of the contentions so advanced on behalf of the appellant was accepted. Ultimately, the learned Judge dismissed the writ petition, the correctness of which is questioned in this appeal.
(2.) Before us also, learned Counsel for the appellant reiterated the contentions put forward before the learned Judge. It was urged that the proviso enabling giving of an oral notice and the acceptance of oral representation dispensing with the issue of a written notice and written representation is violative of Articles 14, 21 and 300-A of the Constitution. The proviso was characterised as being vague, uncertain and arbitrary as well, as no guidelines had been indicated for invoking the proviso. The complexity of the provisions of the Act and the Rules, Regulations and the notifications issued from time to time were also pressed into service, to contend that an oral show-cause notice by an official and an oral representation by the person concerned would be not effective and would defeat the very purpose of the issue of show-cause notice prior to confiscation of goods. It was also contended that the Officer issuing the oral show-cause notice and receiving oral representation may not be the same officer, who orders confiscation or impose penalty and the latter may not be aware of the grounds in the oral show-cause notice or the representation. It was also submitted that uncontrolled and unbridled discretion is given to the officer leaving it almost to his will and pleasure to give oral notice and accept oral representation. Counsel also pointed out that two different kinds of procedures, not based on any intelligible differentia, have been introduced with no relation to the object sought to be achieved. The proviso, when invoked, enables a person to even waive his fundamental right, according to learned Counsel. It was also further contended that the proviso is violative of Articles 21 and 300-A of the Constitution. Reliance in support of the aforesaid contentions was also placed on some decisions to which a reference shall be made later.
(3.) Before proceeding to examine the contentions put forward, it would be necessary to briefly notice the provisions in Chapter XIV of the Act, of which Section 124 is one. Sections 111 and 112 of the Act provide for confiscation of improperly imported goods and for levy of penalty for improper importation of goods. Under Section 113, the export goods liable to confiscation have all been catalogued. The penalty for attempt to export goods improperly is provided for under Section 114. Section 115 enumerates the conveyances liable to confiscation. Sections 116 and 117 deal with penalties for non-accounting for the goods and for contravention of the provisions of the Act, not expressly mentioned. Sections 118 to 121 deal with confiscation of packages, their contents, confiscation of goods used for concealing smuggled goods, confiscation of smuggled goods irrespective of change in form and confiscation of sale proceeds of smuggled goods. The adjudicating authorities for the purposes of confiscation or levy of penalty, have been enumerated under Section 122. Under Section 123, the burden of proof in certain cases has been stated. Section 125 deals with option to pay fine in lieu of confiscation, while Section 126 provides for the consequences of confiscation. Under Section 127 provision is made that an order of confiscation or penalty shall not prevent the imposition of any punishment to which the person affected is liable under the provisions of Chapter XIV of any other law. Having thus taken note of the provisions of Chapter XIV of the Act, it is necessary to refer to Section 124 of the Act which runs as follows: