PUKHRAJ CHAMPALAL JAIN Vs. D.R. KOHLI

JUDGEMENT

(1.) ONE of the questions raised in this application relates to the constitutionality of Section 178A of the Sea Customs Act (Act VIII of 1878) and, therefore, a notice was issued to the Attorney General. The contention is that it violates the constitutional guarantee to acquire, hold and dispose of property, and to practise any profession, or to carry on any occupation, trade or business enshrined in Sub -clauses (1) and (g) of Clause (1) of Article 19 of the Constitution of India.

(2.) PETITIONER Pukhraj Jain, a national and citizen of India, owns a gold and silver shop at Rajnandgaon and carries on business of a goldsmith under the name and style of 'Champalal Pukhraj'. The petitioner claims that his business is of buying and selling gold and that he was doing business both at Rajnandgaon and Tatanagar.

(3.) IF no cause is shown against the action proposed to be taken within ten days of the receipt of this notice or if he does not appear before the adjudicating officer when the case is posted for hearing, the case will be decided on the basis of evidence on record, assuming that Shri Pookhraj Jain has no defence to offer. In reply to the notice the petitioner showed cause. His defence in short was that out of 290.6 tolas of gold found in his possession, 162 tolas of gold was purchased by him from various persons and remaining 128 tolas of gold formed part of 150 tolas of gold which he had received as his share at the time of the partition of the joint family property. He wanted to sell that gold. He, therefore, got it melted and converted into five bars. He had taken gold from Rajnandgaon to Tatanagar for selling it. He however was not successful in selling the gold at Tatanagar and while he was returning from Tatanagar he was intercepted. In support of his contention the petitioner also examined certain witnesses before the Collector of Central Excise, respondent No. 1 hereto. His defence Avas not accepted by the Collector. The conclusions reached by the Collector in his words are: In view of the foregoing discussions and examination of the case in all its aspects, I am fully convinced in that the party has failed to discharge his burden under Section 178A of the Sea Customs Act, 1878, to prove that the seized gold is' not the smuggled one, Even though there are no foreign marks on the seized gold, the irresistible conclusion from the evidence led before me and the serious contradictions and material factual discrepancies in the defence story is that the gold in question is obviously contraband as per information received by the Department. The Collector, therefore, by his order dated July 26, 1958, ordered confiscation of 290.6 tolas of gold and also imposed a penalty of Rs. 25,000 on the petitioner under Section 167(8) of the Sea Customs Act, 1878, read with Section 19 ibid and Section 23A of the Foreign Exchange Regulation Act, 1947. Against this order of the Collector the petitioner has preferred this application under Articles 226 and 227 of the Constitution of India and therein he prays for the issue of a writ of certiorari or a writ in the nature of certiorari or other appropriate writ and for quashing and setting aside the said order. The petitioner further prays for issue of a writ of prohibition or a writ in the nature of prohibition or other appropriate writ, direction or order under Article 226 of the Constitution of. India against respondent No. 1 prohibiting him, his officers, subordinates, servants and agents from taking any steps in enforcement and/or execution of the said order dated July 24/26, 1958. 4. At this stage it would be convenient to refer to some of the provisions of the relevant Acts.