JAL HORMUSJI KHAJOTIA Vs. T C SETH

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution challenging the validity of an order dated November 25, 1958 whereby the Ist Respondent, the Collector of Central Excise and Land Customs, Bombay ordered confiscation of certain gold sovereigns and motor car No. BML 8268 and also give option to pay a fine of Rs. 5,000/- in lieu of confiscation of motor car within 30 days.

(2.) The Petitioners' case is as follows :- The first Petitioner carried on business as dealer in second hand motor cars. The 2nd Petitioner had delivered the motor car No. BML 8268 to the 1st Petitioner for the purpose of sale with authority to use it so as to maintain it in good working order. Between October 10, 1956 and October 31, 1956 the 1st petitioner had purchased 1920 gold sovereigns and had in that connection borrowed loans through finance broker Ali Singh H. Rohra. The 1st petitioner had purchased these sovereigns from Umedchand M. Shah. Between February and March 1957 the 1st petitioner was through brokers attempting to sell of the sovereigns and had sold 76 sovereigns in the first week of April 1957. On April 5th, 1957 with intent to sell 1124 sovereigns the 1st petitioner was travelling by the motor car No. BML 8268 and while he was so travelling with them certain Customs Officers stopped the car and 1124 sovereigns were recovered from the 1st petitioner and seized by the officers of the Central Excise Department. The remaining 720 sovereigns were then lying in possession of the 3rd petitioner, the adoptive father of the 1st petitioner. On that day these 720 sovereigns were also seized by the Officers of the Central Excise Department. The 1st petitioner claims to be the bona fide purchaser for value of all these sovereigns seized by the Department. The 1st petitioner was served with a show cause notice dated June 28, 1958 and thereby informed that it appeared that 1124 and 720 gold sovereigns had been imported without permission as required under notifications dated August 25, 1948 and February 27, 1951 mentioned in the notice and that the 1st petitioner was concerned in the offence mentioned in Section 167(8) of the Sea Customs Act. He was required to show cause why the sovereigns should not be confiscated. I will come to the contents of that notice in connection with the arguments advanced on behalf of the parties later. This show cause notice was also served on the 2nd petitioner and he was called upon to show cause why the motor car belonging to him should not be confiscated under Section 168 of the Sea Customs Act, correspondence was thereupon started by the attorneys of the petitioners. In that correspondence the charge made against the petitioners was denied. The facts as recited by me above were pointed out and it was specifically stated that the sovereigns were purchased from Umedchand Shah. Having regard to that case of the petitioners on enquiries the investigating officer appeared to have received information from Umedchand Shah by way of a statement recorded on August 26, 1957. A hearing was given to the petitioners on December 6, 1957 where the 1st petitioner produced receipts and memoes in respect of purchase of these sovereigns from Umedchand Shah. The 1st respondent thereupon gave the statement of Umedchand to the Petitioners' attorneys'. By petitioners' attorneys letter dated December 7, 1957 an intimation was given to the 1st respondent that Umedchand Shah had purchased these sovereigns from two persons viz. (1) Hariram and (2) Murlidhar. Having regard to that intimation information was gathered from Murlidhar and Hariram by way of statements recorded by investigation officers respectively on February 8, 1958. Another hearing was given to the petitioners on May 7, 1958 and at that hearing the 1st respondent gave to the legal advisers of the petitioners, 14 statements recorded by the investigating officers are in possession of the 1st respondent. These statements included statements made by the petitioners themselves and statements made by 1. Umedchand M. Shah, 2. Hariram, 3. Murlidhar, 4. Ajit Singh Rohra, broker and 5. (one) Tatke who was the printer of the memo forms produced by the 1st petitioner as having been given by Umedchand Shah. By his letter dated June 6, 1958 the 1st respondent in response to the demand made by the legal advisers of the petitioners offered to furnish to them copies of all those statements and copies of all the statements were ultimately furnished to the legal advisers of the petitioners. The 1st respondent by his letter dated October 18, 1958 finally intimated to the petitioners' attorneys to give their reply within ten days from the date of the receipt of the letter and that in defaults the case would be decided on the basis of evidence on record.

(3.) As the petitioners had not led any further evidence in support of their contentions after receipt by them of these copies of the 14 statements the 1st respondent made the impugned order dated November 25, 1958 for confiscation of the sovereigns and the motor car.