TEJMAN Vs. D P ANAND

JUDGEMENT

(1.) This is a suit challenging a confiscation order passed by the Collector of Central Excise and Land Customs. The goods confiscated are a number of wrist watches and Parker fountain pens, all of foreign make. The defendants impleaded are the said Collector of Central Excise as also the Union of India. The plaintiff claims to be a bona fide purchaser of the said goods. In August, 1953, the plaintiff was prosecuted in the Court of the Chief Presidency Magistrate, Calcutta, on a charge of being in possession of the said goods alleged to be stolen goods. He was, however, acquitted on November 13, 1953. Immediately thereafter, proceedings were started under the Land Customs Act and notices were served on the plaintiff to show cause why the said goods should not be confiscated. The plaintiff showed cause in writing and submitted that the goods were not liable to confiscation, on grounds more fully stated in his answer to the 'show cause' noticed. The defendant Collector of Central Excise, however, by his order dated February 3, 1954, confiscated the goods under Section 167(8) of the Sea Customs Act. In paragraph 8 of the plaint the grounds on which the order is contended to be invalid are set out. It is contended that the order is a nullity and that the defendants have wrongfully confiscated the said goods. The prayers, inter alia, are: (1) a declaration that the order of confiscation is void, inoperative and of no effect, and (2) delivery of the said goods wrongfully detained or its value.

(2.) In the written statement filed by the defendants the plaintiff's claim is disputed. It is alleged that the goods were seized under Section 178 of the Sea Customs Act, for violation of Section 5 of the Land Customs Act and Section 19 of the Sea Customs Act. It is contended that the order of confiscation is valid in law, that the Collector had full jurisdiction to make the order and that none of the grounds taken against the said order in paragraph S of the plaint has any substance. It is denied that the plaintiff was a bona fide purchaser of the said goods. All material allegations of fact and submissions of law are denied and disputed. After confiscation, the property in the goods has vested in the Union of India and the same is not liable to be delivered to the plaintiff. It is submitted that the plaintiff has no cause of action to institute the suit, that the suit is not maintainable and that it should be dismissed with costs.

(3.) At the trial, various issues were raised. Learned counsel on behalf of both parties asked me to decide one issue as and by way of preliminary issue, before taking up the trial of the other issues. The issue intended to be tried as the preliminary issue is as to the maintainability of the suit. It is primarily an issue of law, on the basis of facts on which there is no dispute. Reliance is placed, inter alia, on the 'show cause' notice, the order of confiscation and a few letters, inter partes, all included in the Brief of Documents. By consent, these documents are marked exhibits and formal proof has been dispensed with. It is contended by Mr. Roy Chowdhury, learned Counsel appearing for the defendants, that if the issue is decided in favour of the defendants, there would be no necessity to try the other issues and incur further costs. If the issue is decided against the defendants, the suit would have to proceed. Mr. Bhabra, appearing on behalf of the plaintiff, agrees with Mr. Roy Chowdhury that in the interest of the parties this procedure should be adopted.