- (1.) This petition has been placed before us for disposal on a reference made by Somasundaram, J., in revision in the following circumstances.
(2.) Petitioner is the Assistant Collector of Customs and Central Excise, Kandamangalam. He sought to set aside in revision an order of the District Magistrate of South Arcot dated 31-7-1954 directing the return of two bars of gold weighing 307-7/8 tolas to one Krishna Filial from whose possession they were seized by the Customs authorities on 23-3-1952 at about 1 a.m. On the very next day, 24-3-1952, Krishna Filial was convicted under, S. 7(1)(a) read with S. 7(3), Land Customs Act, and sentenced to rigorous imprisonment for a period of four months. The Sub-Magistrate ordered the confiscation of the gold bars. In appeal the District Magistrate, Cuddalore confirmed the conviction and also the order of confiscation. Krishna Pillai pleaded guilty and in his statement under S. 242, Criminal P.C., said that some one gave him the blocks at the border to take across the Indian Union. In revision Somasundaram, J., acquitted Krishna Pillai but confirmed the "order of confiscating the gold blocks". There were two accused in the case, the case against one of whom was withdrawn on Krishna Pillai's plea of guilty. The learned Judge in revision took the view that it was not proper to try Krishna Pillai without letting him on bail and giving him an opportunity to consult an Advocate, and that those circumstances have given rise to the contention that he was kept in duress and that he had no independent legal advice and that he may have confessed out of fear. On 25-11-1953, in appeal on special leave granted by the Supreme Court, the order of confiscation was set aside as being passed illegally and without jurisdiction in view of S. 7(3), Land Customs Act. Their Lordships observed as follows : "It is clear from a perusal of this section that the only jurisdiction and power which the Court has got under this section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise".
(3.) On 16-12-1953, the Collector of Customs and Central Excise, Madras, issued a notice to Krishna Pillai to show cause under S. 5, Land Customs Act, and S. 19, Sea Customs Act, read with S. 8(1), Foreign Exchange Regulations Act, why these gold bars should not be confiscated under S. 5(3), Land Customs Act, and S. 167(8), Sea Customs Act. Krishna Pillai was called upon to produce all the evidence on which he intended to rely. He then filed a claim challenging the legality of the enquiry held by the Collector of Central Excise on the strength of his acquittal, and the setting aside of the order of confiscation by the Supreme Court and said he was taking appropriate judicial proceedings "for the recovery of my gold". On 15-1-1954 the Collector confiscated the bars of gold under S. 5(3), Land Customs Act, and S. 167(8), Sea Customs Act, read with S. 8(1), Foreign Exchange Regulations Act, 1947. Then Krishna Filial filed a simple memo under no specific provision of law before the Sub-Magistrate asking for return to him of these gold bars, which it may be said were handed back to the Customs authorities on 24-3-1952, the date of his conviction.;