SANWARMAL PUROHIT AND ANOTHER Vs. THE COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS, SHILLONG AND ANOTHER

JUDGEMENT

(1.) THESE two petitions raise common questions of law and fact and arise out of one order passed by the Collector of Central Excise and Land Customs, Shillong. The petition filed by Sanwarmal Purohit has given rise to Civil Rule No. 199 of 1962 and that filed by Hari Prasad Tharad has been numbered as Civil Rule No. 200 of 1962. The petitioner Sanwarmal Purohit resides in Gauhati. He contends that he carries on business in different commodities including cinnamon. On the 18th July 1961, the petitioner purchased two packages of cinnamon from a firm known as Dayalji Bhawanji of 12/13, Amratola Street, Calcutta, which imports cinnamon from foreign countries under permit and licences. The vlaue of the two bags of cinnamon was Rs. 1,993,13 nP. and the two bags weighed 175 lbs. The goods were delivered to the petitioner on the 31st July, 1961. The two bags were brought to Shillong by the petitioner where he tried to dispose them of; but, as he could not secure proper price, he decided to bring them to Gauhati.

(2.) AS already mentioned, Sanwarmal Purohit claimed ownership of the two packages of cinnamon. Notices were issued to Sarvashri Hariprasad Tharad Sanwarmal Tharad, Sanwarmal Purohit, Madhoprasad Tharad and Benoyendra Das, calling upon them to show cause why the. seized goods should not be confiscated under section 5(3) and section 7(1) of the Land Customs Act, 1924, section 167(8) of the Sea Customs Act, 1878 read with section 19 of the Sea Customs Act, 1878 as made applicable by section 3(2) of the Imports and Exports (Control) Act, 1947 and under section 168 of the Sea Customs Act, 1878 and why penalty should not be imposed upon them under section 167(8) of the Sea Customs Act, 1878. In response to these notices, these persons filed objections and the Collector, Central Excise and Land Customs, Shillong, by his order dated the 9th March, 1962, directed that the seized cinnamon should be confiscated. The confiscation was to be absolute, in terms of section 3(2) of the Imports and. Exports (Control) Act, 1947 read with section 183 of the Sea Customs Act, 1878. A penalty of Rs. 2,500/ - was imposed on Hari Prasad Tharad and of Rs. 1,500/ - on Sri Sanwarmal Purohit under section 167(8) of the Sea Customs Act. The car was also made liable to confiscation under section 168 of the Customs Act, but as the car had already been released on the owner furnishing a security of Rs. 1, 000/ - the said amount was directed to be confiscated. No orders were passed against Sanwarmal Tharad, Madhoprasad Tharad and Benoyendra Das, driver, as these persons were held to be not responsible for the offence. By means of the present petitions, the said order has been impugned. The matter came up before a Division Bench Of this Court where a preliminary objection was raised that as no appeal was filed against the order of tile Collector of Customs, under Article 226 of the Constitution, this Court should not exercise its discretion in favour of the applicants. Though the whole case has been referred to the Special Bench for disposal, the referring order shows that there was some divergence of opinion on this, point and thus, the matter was referred to a Special Bench. A point is now taken again before the Special. Bench by the Counsel for the other side that the present petitions are not maintainable, inasmuch as the petitioners had a right of appeal which they have not availed of. In my opinion, the existence of an alternative remedy is no bar to the grant of a writ of certiorari. The existence, however, of an alternative Remedy may be taken into consideration by the High Court in exercising its discretion under (Article 226 of the Constitution. Without referring to the numerous authorities on this point, it is sufficient to refer to the case of State of U.P. v. Mohammad Nooh,, AIR 1958 SC 85. The law on this point has been set out in the following passage at p. 93. by S.R Das, C.J: -

(3.) IT is now settled that the Collector of Customs, when adjudging confiscations and imposing penalties under section 167(8) of the Sea Customs Act, acts judicially. Under section 182, the authority has to adjudge the confiscation and the penalty to be imposed. Section 188 provides for an appeal by any person aggrieved by any decision or order passed by an officer of Customs within three months from the date of such decision or order to the Chief Customs Authority. Section 191 provides for revision by the Central Government. A writ of certiorari would thus lie against an order of confiscation and imposition of penalty under s ection 167 (8) . Dr. Medhi contends mainly that in ordering confiscation of the property seized and imposing penalties, the Collector of Customs has violated the fundamental principles of natural justice. The petitioner claimed ownership of the cinnamon. His case was that he purchased the cinnamon from a firm of Calcutta. On some secret enquiry made from the Calcutta firm, the Collector of Customs rejected the petitioner's defence that he purchased these goods from the Calcutta firm.