ROMESH CHANDER Vs. SUPERINTENDENT CUSTOMS

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment dated November 22, 1972 of Mian Jalal-ud-Din, J. whereby the appellant's petition No. 261 of 1971, for issue of writs of Certiorari and Mandamus against the respondents herein was dismissed.

(2.) THE facts leading to this appeal are: During their tour of the border area on May 6, 1966, the Customs (Preventive) Start Rajouri, apprehended the appellants, Mela Ram son of Anant Ram, and Preetam Dass son of Des Raj residents of Rajouri, and recovered from the possession of the appellant two cut biscuit shape gold bars weighing ten tolas with the words and figures "jhon-son Mathey London 99. 0" inscribed on them as also two other pieces of gold weighing two Tolas and Two Mashas which did not bear any marking. Some biscuit shape gold bars bearing foreign markings were also recovered from the possession of Mela Ram and Preetam Dass. On the aforesaid recoveries being effected from them all the three persons were called upon to furnish proof regarding the lawful import and possession of the gold and on their failure to do so, the Customs staff seized the said gold in presence of independent witnesses believing that it had been smuggled. In the course of their statements recorded in the presence of independent witnesses by the Deputy Superintendent, Customs, Rajouri, all the aforesaid three per-sons including the appellant admitted the recovery of the gold from their possession and stated that the same was smuggled by them from Pakistan and was in the process of being transported to Rajouri for disposal duly concealed by them when it was seized by the Customs Staff. Under his show cause memo dated May U, 1966, the Deputy Superintendent Customs, Rajouri, called upon the aforesaid three persons to show cause and explain as to why the gold seized from their possession be not confiscated under Section 111 (k) of the Customs Act, 1962, for contravention of the provisions of Sections 109 and 11 of the Act read with Section 8 (1) of the Foreign Exchange Regulation Act and Section 3 (ii) of the Imports and Exports Act, 1947. The said persons were also called upon to explain as to why penal action should not be taken against them for contravention of the provisions of Section 112 of the Customs Act, 1962. In their reply to the show-cause memo the said persons denied that the gold was recovered from their possession and pleaded that the same was planted on them by the Customs staff. They also pleaded that while in Customs custody they were subjected to duress by the Customs Staff and their statements were extorted under threats held out to them. After giving them an opportunity of being heard and examining the witnesses produced by them in defence, the Assistant Collector Customs Division, Amritsar, vide his No. VIII-10 (4) JK/66/5844 dated March 17, from the aforesaid three persons under Section 111 (k) of the Customs Act, 1962, and imposed on each one of them a personal penalty of Rs. 250/-under Section 112 of the Customs Act, 1962. Subsequently vide C. No. HP/69/rajouri PT-66 dated May 7, 1969, the S. P. Customs (T and I), Jammu, issued notice to the appellant and the other two persons requiring them to show cause as to why the said gold be not confiscated under the then operative Rule 162-M of Gold Control Rules and now under Section 71 of the Gold Control Act, 1968, and why penal action be not taken against them under the then operative Rule 126 (16) of the Gold Control Rules and now under Section 74 of the Gold Control Act, as there were reasons to believe that they had contravened the provisions of Rule 126-M (1-A) of the Defence of India (Fourth Amendment) Rules, 1966. All these persons were also called upon to show cause why penal action under the operative Rule 126 (16) of the Gold Control Rules and now under Section 74 of the Gold Control Act, 1968, should not be taken against them.

(3.) THE appellant and the aforesaid three persons submitted their reply to the said notice contending therein that the notice was misconceived, that the gold was not recovered from them and that the gold having been already confiscated and personal penalty also imposed upon them, they could not be put to double jeopardy for the same offence. They also pleaded that they could not be convicted and subjected to penalty under the Gold Control Act, 1968, which was an ex post facto law. Thereupon respondent No. 2 vide his No. C. No. 810- (14)JK/66/79-9108 dated October 1, 1971, informed the aforesaid three persons that "proceedings under the Customs Act, 1962, had been finalised whereas proceedings under the Gold Control Act, 1968 were still pending decision" and called upon them to intimate within ten days of the receipt of the communication whether they wanted to be heard in person or the case under the Gold Control Act, 1968 be decided on the basis of the facts already on the record. On receipt of this communication the said three persons requested respondent No. 2 through their counsel to reconsider his decision in view of the facts that the notice issued by him was time barred and no action under law or departmental rules could be taken against them after the lapse of more than three and a half years and that the seizure of gold having taken place long before the enforcement of Gold Control Act they could not be proceeded against under an enactment which was nonexistent at the time of the commission of the alleged offence. This reply also did not evoke favourable response and respondent No. 2 vide his order No. C 8 (10) (14) JK 66/pi/l 1008/7-12-71 directed the appellant and the other two persons to attend his offi-1969, confiscated the entire gold recoveredce at Srinagar on December 31, 1971, together with their defence witnesses and other evidence failing which the case would be decided on the basis of the record.