MAHADEO PROSAD SARAF Vs. S K SRIVASTAVA

JUDGEMENT

(1.) This is an appeal from an order of Banerjee J, dated the 7th June, 1962 summarily rejecting an application under Article 226 of the Constitution and refusing to issue a Rule Nisi.

(2.) The appellant carries on business under the name and style of Narayan Timber Works at premises No. 67/23, Strand Road, Calcutta, as the sole proprietor thereof. The business consists, inter alia, in the sale and purchase of various kinds of timber and wood. In October 1961 the appellant entered into a contract with Scindia Steam Navigation Co. Ltd. for the purchase of unserviceable dunnage wood. The importation of dunnage wood was et the material time governed by a notification dated the 22nd October, 1960 issued under the provisions of the Sea. Customs Act, 1878. On 3rd October, 1961 the appellant received from the Scindia Steam Navigation Co. Ltd. respondent No. 4. a letter offering 15 torts of dunnage wood from its steamer "S. S. Jalakirti". The steamer S. S. Jalakirti entered the Calcutta Port on the 5th October, 1961. The appellant immediately contacted the officers of the Steamship Co. and requested them to take necessary steps for delivery of 15 tons of dunnage wood. On the same day, that fs, 5th October 1961 a guarantee was submitted with the Customs Authorities purporting to be that of respondent No. 4 with a request for discharging 15 tons of dunnage wood out of the steamer "S. S. Jalakirti" and for shifting the same to G. Berth in King George's dock. The guarantee was duly accepted by the Customs authorities and the Steamship Co. was permitted to dis charge 15 tons of dunnage wood from the steamer "S. S. Jalakirti". The goods were then discharged into a cargo boat and were finally landed from the cargo boat to G. Berth where they were examined by the Customs Appraiser for the purpose of ascertaining the quantity and value for assessment of customs duty. On 11th October, 1951 the Bill of Entry in respect of 15 tons of dunnage wood was duly filed and the duty assessed thereon was duly paid on behalf of the Steamship Co. respondent No. 4. : In the Bill of Entry there is reference to the import licence dated the 20th October, 1961 under which the goods were sought to be imported. On 1st November, 1961 the appellant paid a sum of Rs. 1140/- to the respondent No. 4 as the purchase price of the said 15 tons cf wood and received a delivery order for the said goods. It is alleged that the unloading of the said 15 tons of wood from the steamer commenced on 6th October 1961 and was completed on 9th October 1961 and they were unloaded into a cargo boat bearing No. C-13729 belonging to one Girish Munni Chowdhuri and the said boat was being manned by a crew consisting inter alia of one Shatu Manji. The said goods after being unloaded from the cargo boat to the G. Berth were stacked and the stack was market with grey paint in accordance with the rales of the Customs Authorities. On or about 1st November 1961 the appellant received a notice issued by the Assistant Collector of Customs and Superintendent Preventive Services Respondent No. 2. calling upon the applicant to show cause why action should not be taken against him under Section 167 clauses 3. , 8. and 29. of the Sea Custom Act. It was alleged in this notice to show cause that in addition to the 15 tons of dunnage wood discharged from the steamer "S. S. Jaiakirti" other quantities of dunnage wood had been unloaded from the steamer under the orders of a representative of the appellant without the Knowledge and consent of the Customs Authorities and a portion ot this had been removed by a lorry engaged by the appellant. On the 2nd November 1961 the appellant sent a reply to the said notice. On 27th November, 1961 the appellant was offered inspection of certain statements of Manjis and, dandis of the said cargo boat No. 13729 on the basis of which the notice to show cause dated the 1st November 1981 had been issued by the Assistant Collector of Customs respondent No. 2. . On 6th January, 1962 a personal hearing was given to the appellant by the respondent No. 1, the Additional Collector of Customs. AS the hearing the appellant relied on a statement of the said Shalu Manji which had been made by the Manji in his presence and in the presence of Girish Munni Chowdhuri. Thereupon the Manji was called as witness by the Additional Collector of Customs for giving evidence and the Manji stated before the Additional Collector of Customs that he had made no statement before the appellant but he had merely put his thumb impression on a blank piece of paper and he further stated before the Additional Collector of Customs that no statement had been extorted from him by the Customs Authorities and whatever he had stated before the Customs Authorities was the truth. It appears that thereupon the appellant requested the respondent No. 1 to grant a further personal hearing in order to enable the appellant to produce the said Girish Munni Chowdhuri as witness and ttie appellant also requested the respondent Ho. 1 to summon and record the evidence of the customs officers under whose supervision the dunnage wood had been discharged. On 8th January, 1962 another letter was written by the appellant asking for a further personal hearing, but no such further personal bearing was granted. On 1st May, 1932 the respondent No. 1 passed an order for confiscation of the dunnage wood and imposed a fine of Rs. 6,000/- in lieu of confiscation. The respondent No. 1 further Imposed a personal penalty of Rs. 4,000/- under Section 1678. of the Sea Customs Act and a personal penalty of Rs. 1,000/- under Section 1673. of the said Act on the appellant. On 7th June, 1962 the appellant moved an application under Article 226 of the Constitution of India for a Writ in the nature of Certiorari for quashing the order of the 1st May, 1962 and also for a Writ in the nature of Mandamus directing the respondents to recall or cancel the said order and to forbear from giving effect to the said order. But the application was dismissed In limine by Banerjee J. it is against this order of Banerjee J that the present appeal has been preferred.

(3.) After filing ths appeal, the appellant took out a notice of motion on 12th June, 1962 asking for an injunction restraining the respondents their agents and servants from taking any steps under the said order dated the 1st May, 1962 pending disposal of the appeal. An interim injunction was granted by this Court ex parte ponding disposal of the application and the notice of motion was made returnable on the 18th Juna 1962. Thereafter directions for affidavits were given and when the application for injunction came up for hearing certain objections ware raised on behalf of the respondents as to ttie maintainability of the application. After hearing the parties at some length this Court directed that the appeal and the application would be heard together on a date fixed.