COLLECTOR OF CUSTOMS Vs. JEENA AND COMPANY

JUDGEMENT

(1.) ON 21st August 1986 M/s. Jeena and Co. Customs House Agent the writ petitioner No. 1, filed duplicate copy of shipping bill dated 18th August 1986 for shipment of 38 packages of tourist purchases consisting of papier mache valued at 64,700 F.O.B. in the name of one J. Sale, the address of whom was given as Grand Hotel, Chowringhee Road, Calcutta. In the course of examination of the goods it was found that all the 38 packages were cane baskets covered with gunny wrappings. When the said packages at random were opened for insepction it was found that each packet contained several mache of different sizes. However, the weight of the packets were found to be different from one another. Although there were several packets in each basket only approximately about 5/6 were found to be of heavy weight. These packets of heavy weight were opened and it was found that such packets contained hashish (charas) skilfully wrapped with cellophene paper covered with brown paper having yellow gnoting. Because of such was coating no smell of hashish was emaraled outside. At the baskets 193 kg. nett (240 kg. gross) of hashish was found. The international value of the said hashish was approximately rupees one crore fifteen lacs. At the time of such examination of the said goods J. Sale, holder of French passport No. 344/81 was not present. The investigation branch was immediately put on action and investigation stated in the matter. As a part of such investigation not only the consignor J. Sale was searched for at Grand Hotel as well as at the premises of M/s. Jeena and Co. and also for seizure of incriminating documents in connection thereof. The office of M/s. Jeena and Co. was also searched and several persons including two executives of M/s. Jeena and Co. were interrogated. Summons were issued under Section 108 of the Customs Act. The result of such searches and seizures and/or interrogations revealed that various documents were seized from the office of M/s. Jeena and Co. One Janardan Thakur and K.K. Bhattacharji, two senior personnel of M/s. Jeena and Co. were interrogated. As a result of such investigation it revealed that K.K. Bhattacharji, the officer handling the above -mentioned cargo had put their signatures on the relevant documents. Apart from those documents seized from the office of M/s. Jeena and Co. one piece of rubber stamp of M/s. Doona and Co. of Srinagar was also found inside the drawer of the table of K.K. Bhattacharji of M/s. Jeena and Co. In the course of such investigation under Section 108 it came to the knowledge of the Collector of Customs that the said officers of M/s. Jeena and Co. did not inspect the passport of J. Sale nor did they comply with the conditions as laid down in Regulation 14 of the Customs House Agent Licence and Regulation of 1984. They further did not obtain the letter of authority from J. Sale before proceeding to deal with the matter as clearing agent. As a result of such investigation the appellant gathered that those goods have been despatched by one M/s. M.S. Doona and Co. of Srinagar who issued a challan on 18th August 1986 whereas the date of receipt of the goods by M/s, Jeena and Co. also bears the same date i.e. 18th August 1986. The original invoice which was stated to have been issued by M/s. M.S. Doona and Co. of Srinagar was not submitted to the Customs but instead a separate invoice was prepared in the office of M/s. Jeena and Co. Before exportation of such goods a certificate of the actual origin has to be obtained from the Export Inspection Agency, Calcutta, and such form had to be filled and prepared by the supplier of the goods i.e. M/s. Jeena and Co. In the instant case the said form which was submitted to the Export Inspection Agency, Calcutta, was filled and prepared in the office of M/s. Doona and Co. and one Sri Tapash Kumar Chakraborty had signed for M/s. Doona and Co. and a rubber stamp of M/s. Doona and Co. was put in. As it appeared from such search and seizure in the course of such investigation prima facie revealed that the writ petitioner No. 1 had acted in contravention of the Customs Agents Licence and Regulation of 1984 and according to the appellant also appeared to have aided and abetted to the attempt for illegal exportation of prohibited goods and thereby committed an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 as well as they have violated the provisions of Customs Act.

(2.) UNDER the circumstances two senior personnel of the writ petitioner No. 1 Sri K.K. Bhattacharji and Janardan Thakur were arrested. The Collector of Customs G. Sarengi issued on 26th August 1986 an order suspending the writ petitioner from further acting as a Customs House Agent pursuant to the licence granted to M/s. Jeena and Co. to act as a Customs House Agent with immediate effect. In the said notice it was stated that a consignment of export cargo (charash) weighing about 230 kg. gross and 193 kg. net valued at approximately 11.50 less which is equivalent to one crore and 15 lacs approximately in the international drug had been seized on 21st August 1986 at shed No. 4 Netaji Subhas Dock, Calcutta. It had further been stated in the said order that M/s. Jeena and Co. acting as the agent on behalf of the exporter J. Sale for clearance of the said consignment from the customs had filed a shipping bill dated 18th August 1986 declaring the contents of the consignment as tourist purchases. Upon preliminary enquiry it was indicated in the said order itself that it appeared that M/s. Jeena and Co. were prima facie involved in the admitted export of the said narcotics in the manner as indicated in the said order itself i.e. that M/s. Jeena and Co. were not in possession of any letter of authorisation issued by the exporter as required under Clause (a) of Regulation 14 of the Customs House Agents Licencing Regulation of 1984. They had not forfeited the passport of the exporter before undertaking the goods on his behalf nor any attempt had been made by M/s. Jeena and Co. to verify the address of the customer. Sri K.K. Bhattacharji, senior cargo executive of M/s. Jeena and Co. handled the consignment and had the original certificate prepared in his office and had it signed by one Sri Tapas Krishna Chakrabarty, who was a transport contractor and handled cargo for M/s. Jeena and Co. It was subsequently stated that during search of the premises of M/s. Jeena and Co. and rubber stamp of the supplier at Srinagar had been recovered which according to the Collector of Customs. Sri G. Sarangi, appears to have been used for embossing the country of origin certificate prepared for the clearance of the aforesaid consignment. It had further been stated in the said order that both Mr. J. Thakur of M/s. Jeena and Co. and Mr. K.K. Bhattacharji had been arrested in connection with the said seizure and had been remanded to Jail Custody by the Judicial Magistrate. On that basis the Collector of Customs stated in the order that M/s. Jeena and Co. had failed to discharge their responsibilities as a Customs House Agent in appropriate manner and also aided and abetted the said attempt to export the said consignment of Narcotics and inasmuch as an action to hold an enquiry was being contemplated. In these circumstances he ordered suspensions of the Customs House Agent Licence granted to M/s. Jeena and Co. to act as a Customs House Agent with immediate effect. It had further been mentioned in the said order until further orders in terms of Clause (2) of Regulation 21 of the said Customs House Agents Licencing Regulation of 1984 was passed. From the order itself it indicates that it was an interim order of suspension in terms of Rule 21. Rule 21 provides for suspension and invocation of licence in the circumstances as enumerated in the said Rule 21. Power had been given to the Collector of Customs to suspend, revoke the licence of Customs House Agent on various grounds including the grounds where the agent fails to comply with any of the conditions of the bond executed by him under Regulation 11. or where the agent fails to comply with any of the provisions of the Regulation or he thinks any misconduct which, in the opinion of the Collector, renders him unfit to transact any business in the Customs Station. In Sub -rule (2) of Rule 21 notwithstanding anything as contained in Regulation (1) the Collector may, in appropriate cases, where immediate action is necessary, suspend the licence of the Customs House Agent where an enquiry against such agent is pending or contemplated.

(3.) IN the case reported in Camillo Molinaro v. Jessey : (1970)IILLJ284SC it was observed that rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the Courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rule of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision, the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with the language of the principles of natural justice or not depend upon the express words of the provisions conferring the power, the nature of the power conferred the purpose for which it is conferred and the effect of the exercise of that power. It was further observed that where an appropriate authority bona fide forms opinion such authority can pass such order if such authority is clothed with the statutory power to do the same. In the instant case the show cause notice had been given and as indicated earlier, the rule provides for representation being made by the writ petitioner and an opportunity would also be given at such hearing to the writ petitioner to cross -examine the witnesses and/or dispute the documents which may be used by the authorities concerned in support of their charge against the writ petitioner. In the affidevit in opposition filed by the Collector of Customs himself in paragraph 4 he submitted that pending the enquiry the licence of the writ petitioner had been suspended as he was satisfied on the basis of the materials received and/or information gathered in the course of investigation that an attempt for illegal exportation of prohibited goods was made. The investigation revealed that there was prima facie evidence warranting initiation of proceedings for revocation of licence of the writ petitioner for contravention of the Customs House Agent Licensing Regulation of 1984 and also because of involvement in an attempt for illegal exportation of prohibited goods. Considering that such allegations were of extremely serious nature, he bona fide formed an opinion for immediate suspension of the licence granted to the petitioner pending full enquiry into the matter and as such be justified the order passed on 26th August, 1986.