JENSEN ENTERPRISES Vs. COLLECTOR OF CUSTOMS COCHIN

JUDGEMENT

(1.) The petitioner is a registered partnership firm dealing in Indian Medicinal plants and herbs and in the course of its business, it buys and sells within the country and also exports medicinal plants to foreign countries. On 10-6-1964, the petitioner dispatched 52 bales of what was described to be Vinca Rosea by road from Madras to Cochin for export from Cochin Port. This consignment was accompanied by a Photosanitary certificate issued by the Directorate of Plant Protection, Quarantine Storage, Department of Agriculture and Co-operation, Government of India, and a certificate of the representative of the buyer showing that they had drawn samples from the consignment and had inspected and sealed the consignment. After filing the necessary shipping bills, the consignment was presented for export and it was examined and inspected by the Customs authorities on 23rd June, 1984 and a 'Let Export Order' was passed by the Customs authorities. However, two days later, the 'Let Export Order' and the shipping bills were seized and the petitioner was informed that the goods cannot be exported. On 12th July, 1984 the second respondent issued a show cause notice to the petitioner purporting to be under Section. 174 of the Customs Act, 1962 (hereinafter referred to as the 'Act') and this was served on the petitioner on 14th July, 1984. It was stated therein that as per technical opinion obtained on the basis of an examination of the samples, the consignment was found to consist of Vinoa Rosea and Rauwolfia serpentina roots (a banned item) and the petitioner was called upon to show cause why the consignment should not be confiscated under Section, 113 (d) of the Act for contravention of Section. 3 of the Import and Export Control Act, 1947, read with clause 3(1) of the Export Control Order. A notice to show cause as to why a personal penalty should not be imposed under S. 114(1) of the Act was also given to the petitioner. Thereafter, on 27th July, 1984, before the petitioner could send a reply within the time mentioned in the notice, an addendum was served upon the petitioner which referred to a preliminary report received from the Professor of Pharmacognosy, Ayurveda Research Center, Trivandrum, to the effect that a major quantity of the sample from the consignment consisted of Rauwolfia serpentina. In view of this, the second respondent stated that the petitioner contravened clause 3(4) of the Export Control Order, 1977, rendering the goods liable for confiscation under Section. 113(1) and 113(d) of the Act read with Section. 3 of the Import and Export Control Act, 1947. In the reply submitted by the petitioner on 10th August, 1984, it pointed out that the opinion furnished to it was not complete and after receipt of the same, it would submit all the relevant documents. On 27th August, 1984, the petitioner submitted a further representation and asked for the copy of the opinion obtained from the authorities cited in the show cause notice as well as the analytical report issued by the Professor of Pharmacognosy, Ayurveda Research Center, Trivandrum. The petitioner also submitted that samples should be drawn and sent to one of the three recognised institutes maintained by the Government of India for the purpose of testing the consignment and submitting a report. The petitioner did not receive any reply to these representations made. Meanwhile, by an order served on the petitioner on 2nd August, 1984, the Assistant Collector of Customs, Export Documentation Center (Customs), Cochin-9, had detained the goods under Section. 110 of the Act, and directed the petitioner not to remove or deal with the goods. Later, on 10th August, 1984, an order was served by the second respondent on the petitioner's clearing agent at Cochin and by this order, the order of detention was superseded and the consignment was seized under Section. 110(1) of the Act. Thereupon, the petitioner moved the Kerala High Court in O.P. No. 7548 of 1984 to quash the order of seizure dated 10th August, 1984, and that petition is stated to be pending. Claiming that the petitioner was advised to resort to legal proceedings of a more comprehensive nature including a challenge to the proceedings taken under Section. 124 of the Act, besides the order of seizure, the petitioner has come up before this court for the issue of a writ of certiorified Mandamus calling for the records relating to the show cause notice issued by the second respondent, as amended by the notice dated 27th July, 1984, and the adjudication proceedings pursuant thereto and quash the same and directing the respondents to release the goods seized under the order of the second respondent, dated 10th August, 1984.

(2.) In the affidavit filed in support of the writ petition, though several grounds had been raised by the petitioner, in the course of the arguments before this Court, the petitioner confined its attack on the impugned orders to only one ground, namely, that the alleged violation committed by the petitioner in attempting to export goods contrary to the prohibition against export was without any basis or foundation, as the question whether the goods were prohibited or not is a matter on which the respondents should have entertained a reasonable belief that it was so at the time of seizure and such belief should have been present at the time of the issue of the show cause notice and further that during the course of adjudication, the proper officer must reach a conclusion that the goods were prohibited goods. The petitioner also maintained that the consignment did not contain any banned item and in order to ascertain this, requested the Court to draw samples, from the consignment and send the same to any one of the three recognised institutes mentioned in the course of the affidavit. The petitioner took the stand that the seized goods did not contain any banned item which cannot be exported, and, therefore, the proceedings taken by the respondents on the footing that the consignment included banned items should be quashed as having been initiated without jurisdiction.

(3.) In W.M.P. 16314 of 1984 the petitioner prayed for a direction from This court to the respondents to draw samples in the presence of the petitioner from the seized goods and submit the same for examination and analysis to the Central Research Institute for Siddha, Ministry of Health and Family Welfare, Government of India, Arumbakkam, Madras-106. By an order dated 16th November, 1984, this Court directed the respondents to draw samples in the presence of the petitioner from the consignment within two weeks from that day and have the same sent to the Central Research Institute for Siddha, Arumbakkam, Madras-106, for examination and submission of a report. Pursuant to this, the Central Research Institute for Siddha, Arumbakkam, Madras-106, had submitted its report dated 2nd January, 1985.