TARAK NATH SEN Vs. UNION OFINDIA

JUDGEMENT

(1.) The petitioners Nos. 1-4 claimed to be partners of the Firm, Messrs. Shyamlal Sen and Company. The Additional Collector of Customs by his order No, 127, dated July 28, 1967 (Annexure 'D' to the petition) has confiscated under Section 111 (d) of the Customs Act, 1962, read with Rule 126-M of the Defence of India Rules, 1962, 142 pieces of gold coins (disc) weighing approximately 1656 grammes which were seized on May 21, 1965 at 7, Nalini Seth Road, Calcutta. The Additional Collector by the same order has imposed on Messrs. Shyamlal Sen and Company and its partners a penalty of Rs. 10,000/- each under Section 112 of the Customs Act, 1962 and Rs. 5,000/- on each of them under Rule 126-L (16) of the Defence of India Rules.

(2.) Mr. N. C. Banerjee, learned Advocate for the petitioners has submitted that the aforesaid order of the Additional Collector of Customs imposing penalties upon the petitioners is illegal, without jurisdiction and in violation of the principles of natural justice. In the first place, the learned Advocate for the petitioners has contended that a combined show cause notice in respect of the alleged offences under the Customs Act, 1962, Foreign Exchange Regulation Act, 1947 and the Defence of India Rules, 1962 was bad in law. I am unable to accept this submission. According to the said show cause notice, dated June- 3, 1965, issued by the Assistant Collector of Customs for Preventive (I), Customs House, Calcutta (vide Annexure 'A' to the petition) on information a party of Customs Officers led by the Assistant Collector of Customs, Preventive (I) had reached the premises No. 7, Nalini Seth Road, Calcutta 7 occupied by Messrs. Shyamlal Sen & Company at 7-45 p. m. on May 21, 1965 for search. In course of the search, 142 pieces of gold coins (disc) wrapped in a handkerchief were recovered and seized from inside the oven in the room on the 2nd floor. Rs. 24,900/- in Indian Currency found inside the Iron Safe placed in the guddy was also seized. Tarak Nath Sen, Debnath Sen, Jognath Sen and Mahinath Sen were found inside a room in the 1st floor of the premises. The partners could not produce any documentary evidence to show that the gold coins (disc) were duly declared before the Gold Control Authorities or that those had been entered in the prescribed returns. According to the above show cause notice importation of Gold without a valid permit was prohibited under Section 8 (1) of the Foreign Exchange Regulation Act, 1947 and the Government of India Notifications mentioned in the said notice. Therefore, the seized gold was liable to confiscation under Clause (d) of Section 111 of the Customs Act, 1962. According to the said notice persons in possession or in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which they knew or have reason to believe, were liable to confiscation under Section 112 of the Customs Act, 1962. According to the said notice the above alleged acts were also in contravention of Rule 126-H & Rule 126-I of the Defence of India Rules, 1962 (Gold Control) (Part XIIA) as possession of gold not in-cluded in any return was illegal. Further, failure to make any declaration of gold other than ornament amounted to contravention of the Defence of India Rules.

(3.) Thus, according to the above show cause notice, same set of facts gave rise to the above charges against the petitioners under the aforesaid provisions of the Customs Act and the Defence of India Rules. In other words, the petitioners' aforesaid acts amounted to contravention of Section 111 (d) and Section 112 of the Customs Act, 1962 and also of Rules 126-M and 126-L (16) of the Defence of India Rules, 1962. Under Rule 126-M of the Defence of India Rules (Gold Control), confiscation of any gold under Rule 126-L may be adjudged by the different officers of Customs or Central Excise depending on the value of the seized articles. Therefore, I find nothing illegal either in the show cause notice (Annexure 'A' to the petition) or in the adjudication proceeding merely because they were in respect of ;alleged contravention of the Customs Act and the Defence of India Rules (Gold Con-'trol). Therefore no prejudice was caused by conducting such combined proceeding to the petitioners and when the show cause notice gave sufficient particulars of the charges the petitioners had no difficulty in showing cause. In fact, the petitioners while showing cause did not make any grievance regarding the said joinder of charges.