SHAMLAL SEN PRIVATE LTD Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS Rule is directed against an order, dated June 12, 1961, whereby the respondent No. 2, an Additional Collector of Customs, imposed a penalty of Rs. 5,00,000/-on the petitioner No. 1 company, Shamlal Sen Private Ltd. , and further imposed a personal penalty of Rs. 3,00,000/- on each of the petitioners No. 2 to 5, all Directors of the petitioner No. 1 company, and also ordered confiscation of certain gold bars and gold coins, under section 167 (8) of the Sea Customs Act read with section 23a of the Foreign Exchange Regulation Act.

(2.) THE petitioner company carries an business in gold and silver and has its registered office at No. 3, Meer Bahar Ghat Street (previously No. 7, Nalini Sett Road) and a workshop at premises No. 164, Cotton Street, in the town of Calcutta. On December 29, 1954, the premises of the petitioner company at No. 164 Cotton Street and No. 3 Meer Bahar Ghat Street were searched by men of the Customs Department and gold, as per description herein below given, was seized by them as smuggled gold, namely, (a) gold leaves weighing 44 tolas 13 annas 6 pies, (b) gold coins bearing inscription (i) Habib Bank, 6 pieces (ii) Murshidabad coins, 58 pieces (iii) S. L. Sen, 502 pieces (iv) Sovereigns, 6 pieces (v) gold mohurs, 4 pieces, in all weighing 321 tolas 9 annas 6 pies. (c) gold bullion weighing 306 tolas 8 annas. The petitioners characterise the said search and seizure as wrongful and illegal. They also say that at the time when the gold was seized from the petitioners, the respondent No. 2, S. K. Srivastava, who at that time was an Assistant Collector and Preventive Inspector, was personally present at the premises. The name of respondent No. 2 figures prominently in the petition and the grievance of the petitioners is principally directed against the part which he played in passing the impugned order.

(3.) ON the night of December 29, 1954, the petitioners No. 2 to 4 were arrested by the respondent No. 2, S. K. Srivastava, and a Rummaging Inspector of the name of D. G. Banerjee. They were detained over night in the Customs House by the said respondent No. 2. They were produced before the Chief Presidency Magistrate, Calcutta, on the next day on the allegation that they had been arrested under section 173 of the Sea Customs Act and they were released on bail under order of the Chief Presidency Magistrate. I am not concerned with the proceeding before the Chief Presidency Magistrate because ultimately the petitioners were not proceeded against in crime and were discharged by the Chief Presidency Magistrate, on April 2, in the meantime, on January 24, 1955, the respondent No. 2, S. K. Srivastava, caused a notice to be served on the petitioner No. 8, Janaki Nath Sen, whereby the petitioners were called upon to show cause why the gold leaves seized by the Customs should not be confiscated and penal action taken under section 167 (8) of the Sea Customs Act and further called upon the petitioner No. 3, to show cause how he came in possession thereof. The petitioner No. 3, Janaki Nath Sen, showed cause, on January 27, 1958, stating that the gold leaves were purchased by the petitioner No. 1 company in regular course of business and were duly entered in the books of accounts of the petitioner No. 1 company.