H A DAGMAN Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) -The present Rule was issued on 26.11 79. The writ petitioner has challenged order No 174 and. order No. 175 dated 14.7.72 passed by the Additional Collector of Customs, Calcutta imposing penal of Rs., 10,000/- upon the petitioner (H. A. Dagman) under section 74 of the Gold Control Act, 1968. The petitioner has also challenged the order dated 27.7.7-4 passed by the Gold Control Administrator as the appellate authority, to dismiss the appeal and by alarming the aforesaid order of the Additional Collector of Customs dated 14.7.72. The petitioner has also challenged the order in revision dated 7 9 79 passed by the Special Secretary to the Government of India. It is stated that acting on a secret information officers of Air Customs, Calcutta Airport attended the Bombay Bight of Indian Airlines through Flight No. 175 dated 28.5.71 at about 10.00, P.M. All the baggages of crew were unloaded from the aircraft and the two baggages remained unidentified. Out of the said two unidentified baggages one was fours locked and another was found unlocked. Locked bag was opened in presence of independent witnessed and 105 of gold bars were recovered and in the unlocked bags 25 pieces of gold bars along with 12 pieces of mangoes were recovered Several statements were recorded and a show cause notice was served upon the petitioner on 8.11.71 for contravention of the Control Act. In view of the petitioner's written representation against the show cause notice, the additional Collector of Customs, Calcutta disposed of the adjudication proceedings under Gold Control Act and made an order after recording his findings and imposed penalty of Rs. 10,000/- under section 74 of the Gold Control Act. The petitioner preferred an appeal before Gold Control Administrator, New Delhi against the order dated 14.7.72. Both the appeal and the revisional application were disposed of. Being aggrieved the petitioner has come to this writ Court on the ground that no oral evidence has been recorded at the time of the enquiry or the trial. The respondent No. 5 acted wholly who without jurisdiction in relying upon the statements recorded by the Customs Officers prior to the issuance of the show cause notice in the matters of imposing of penalty under section 74 of the Gold Control Act, 1968. The petitioner's further contention is that under provision of section 83 of the Gold Control Act, it is incumbent upon the respondent Nos. 1 to 5 to record the evidence of the witnesses. The respondent Nos. 1 to 5,have no power to rely upon the statements other than the receiving evidence on affidavits There are allegations that the respondent Nos. 1 to 5 acted wholly without jurisdiction in receiving the statements of different persons and there is no clear evidence to link the petitioner and the packages containing smuggled gold in the form of foreign marking. Stating all these facts in details, the petitioner has sought for the reliefs to quash the impugned orders as indicated above.

(2.) The writ petition is contested by the respondent authorities by filing affidavit-in-opposition by the respondent Nos. 1 to 3 and 5 and No. 4 separately. It is disclosed that pursuant to information received at Dum Dum Airport to the effect that one Indian Airlines Steward Sri H. A. Bagman would carry smuggled gold bars from Bombay by Indian Airlines Flight No. 1?5 a group of Customs Officers took to their position around the said aircraft on the aforesaid date and maintained surveillance on the crews haggles. The gold bars were seized in the reasonable belief that there was smuggled goods and was liable to confiscation under the Customs Act. In connection with the above seizure, enquiries were made with different persons. All recorded statements were supplied to the petitioner and it revealed during the enquiries that Sri H. A. Dagman and Sri M. K. Kundu the two flight stewards of Indian Airlines were closely associated to each other and the Indian Airlines' roster indicated that they preferred to fly together and in fact, on 27.6.71 both of them went to Bombay in Flight No. IA 176 and stayed there at hotel Ritz in room No 304 and that on. 28.5.71 both of them accompanied by fight stewardess Miss G. Rodringness went to Crawford market and purchased mangoes from the same vendor for themselves as well as far Captain Aserappa., Sri Dagman and Sri Kundu carried their purchase in the respective handbags and that out of the mangoes purchased by Sri Dagman, 12 pieces mangoes were given to Sri Aserappa on board the aircraft at Santacruz Airport. In course of investigation, it transpired that the petitioner was involved in smuggling the prohibited gold bars and show cause notices were issued to the petitioner and Sri M. K. Kundu both under the Customs Act, 1962 and Gold Control Act, 1968 on 8.11.71. The case was adjudicated by the Additional Collector of Customs on 14.7.72 after granting persoria1 hearing to the said persons. The Adjudication Officer imposed personal penalty of Rs. 10,000/ each and under the Customs Act, 1962 and on each Sri H. A. Dagman and Sri M. K. Kundu. Against the order passed by the Additional Collector under Gold Control Act, the appeals were preferred. The petitioner also challenged the order made in the appeal before the revisional authority. Thereafter, the petitioner has come to the writ Court to seek the beliefs. It is disclosed in details that upon finding of all relevant facts the impugned orders were made according to law. The petitioner cannot avoid the game by filing the writ petition and there is no merit in the petitioner's contention. The petitioner, however, filed affidavits-in-reply controverting the allegations of the respondents

(3.) For effective adjudication of the matter in dispute, the entire file with all relevant papers have been produced before this Court with the assistance of the learned counsel appearing for the respective parties. This Court has the occasion to go through the entire file. The attention of the Court has been drawn to section 74 of Gold Control Act, 1968. It indicates inter alia that any person who, in relation to any gold, does or commits to do, any act which act of omission would render such gold liable to confiscation under this Act, or abets the doing or omission of such an act, or is in charge of the conveyance or animal which is liable to confiscation under this Act, shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees, whichever is more, whether or not such gold has been confiscated or is available for confiscation. The attention of the Court has further been drawn to the observation of .the Supreme Court in the case of Hindustan Steel Limited v. State of Orissa Civil Appeal Nos. 883 to 892 decided on 4.8.69 that