SUNITA PLASTIC INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition filed under Article 226 of the Constitution of India the petitioners are challenging legality of order dated February 25, 1991 passed by Additional Chief Controller of imports and Exports. The petition came up for admission before us on June 26, 1991 and by a speaking order we directed notices to be issued to Petitioner No. 1 firm and its partners under the contempt of Courts Act to show cause why the partners should not be committed for committing contempt of the Supreme Court by openly flouting the interim order and disposing of the imported material. The notice also directed the partners to show cause why the partners should not be prosecuted for playing fraud upon the Court and cheating the Customs Authorities in disposing of the imported material. Against order dated June 26, 1991 issuing notice to show cause why action under the Contempt of Courts Act and for prosecution should not be taken, the petitioners preferred Special Leave petition No. 11017 of 1991 before the Supreme Court. In the Petition, to which our attention was invited by Shri Pochkhanwala, learned counsel appearing on behalf of the petitioners, on. . . . . . . several inaccurate statements were made, but we need not set out the same in the present judgment. It is unfortunate that the draftsman of the Special Leave Petition should have made allegations against the Court without any foundation whatsoever and more so when the petitioners did not care to. . . . . . . the Leave Petition. The Special Leave Petition was dismissed by the Supreme Court by order dated July 31, 1991 and thereafter the present petition along with the notice was placed before us on Monday, August 12, 1991.

(2.) WHEN the petition reached for admission and for hearing of the notice, Shri Pochkhanwala appeared on behalf of the petitioners, and after the matter was argued for about half an hour, on our enquiries as to whether the petitioners desire to file any affidavit to show cause to the notice issued, stated that the affidavit would be filed on next date, that is Tuesday, August 13, 1991. On august 13, 1991 the petitioners did not file any affidavit, but Shri Pochkhanwala tried to point out certain facts which are nowhere on record, in justification of what was done by the petitioners in spite of the specific order passed by the Supreme Court. We made it clear to Shri pochkhanwala that we will not hear any arguments on facts when the petitioners have not cared to file affidavit. Shri Pochkhanwala then took instructions from the petitioners, who were present in Court, and stated that the affidavit will be filed and the matter should be kept back till to-day. Accordingly, we adjourned the matter. To-day Shri Pochkhanwala did not appear and Shri shetty appeared on behalf of the petitioners and stated that the petitioners do not desire to file any affidavit. It is obvious from the manner in which the proceedings are conducted that the petitioners are not fair to the Court and are obviously trying to suppress relevant material or had no courage to state on affidavit what they desire their counsel to state orally. With this state of affairs we have to examine whether action under the Contempt of Courts Act or prosecution against the partners of the firm is called for. Before we advert to that aspect, it is necessary to set out the facts which gave rise to filing of the petition.

(3.) M/s. Prakash Conductors, Bangalore, had obtained Replenishment Licence dated July 4, 1984 for a sum of Rs. 12,69. 876/- for import of aluminium/aluminium rods. The licence issued by the joint Chief Controller of Imports and Exports was transferable and was transferred by M/s. Prakash Conductors to M/s. Vina Commercial Corporation, who in turn transferred part of the licence of value of Rs. 9,30,000/- to petitioner No. 1 firm. The transfer in favour of petitioner no. 1 firm was effected on May 18, 1985. Though the licence was not valid for import of Butyle acrylate, the petitioners imported 72 Metric Tonnes of Butyle Acrylate for full value of the licence. The petitioners filed bill of entries for clearance with the Customs Authorities, Bombay on June 12, 1985. The Customs Authorities declined to clear the goods because the licence was not valid. The petitioners thereupon filed Writ Petition No. 11773 of 1985 in the Supreme Court against Union of India, Chief Controller of Imports and Exports, Joint Chief Controller, bangalore and Collector of Customs, Bombay seeking that direction should be issued to the collector of Customs, Bombay for clearance of the imported goods. The partnership firm and the partners declared in the petition before the Supreme Court that the firm was the actual user of butyle Acrylate and the firm was registered with the Directorate of Industries, Bombay on september 21, 1976 for manufacture of plastic moulted articles and plastic immitation jewellery. Possibly on the strength of the claim made by the firm and the partners, the Supreme Court by interim order dated August 16, 1985 directed the Collector of Customs, Bombay to release the goods imported by the petitioners on payment of duty, but specifically observed : "but the goods will not be permitted to be sold until further order of this Court. " taking advantage of the interim order passed by the Supreme Court, the petitioners cleared 72 metric Tonnes of Butyle Acrylate and thereafter by openly flouting the order of the Supreme court disposed of the entire quantity between September 2, 1985 and March 15, 1986 to as many as 60 parties.