D.N.Sinha, J. -
(1.) The facts in this case are shortly as follows: On the 25th October, 1958 one of the Customs officers at Dum Dum Airport, while examining a wooden case declared to contain rosogolla, achar, papar and dried vegetables under cover of Shipping Bill No. A. E. F. No. 761 dated 18-10-58 and consignment Note No. 085/SR 1082755 to be shipped to Hongkong per Swiss Air, detected Rs. 51,000/- in Indian Currency Notes of hundred rupees denomination concealed in a specially made cavity on the battens nailed to the inner sides of the case.
(2.) In the shipping bill, the consignor was shown to be one Ramghawan Singh, Karnani Mansions, Park Street, Calcutta, and the consignee was shown to be one Iswarlal, 41, Wyndh am Street, Hongkong. It was found from the shipping bill that the case in question was originally to be shipped per M/s Thai Airways Co., Ltd., but it was ultimately booked with the Swiss Air. Enquiries revealed that no person by the name of Kamghawan Singh ever lived or was living in Karnani Mansions at Park Street. The evidence shows that it was a fictitious name. Enquiries made of M/S. Thai Airways Co., Ltd., and Indian Airline Corporation revealed that during the Puju holidays an elderly person had been to their office with a wooden case on three days for booking the same. This same person had been to their office in connection with the booking of another case declared to contain images of Gods under cover of consignment note No. 085/SR 1082754. This man had signed the consignment note in the presence of the officers. A loader of M/s Thai Airways Co. Ltd. and the Traffic Assistant of the Indian Airline Corporation, stated that they would be able to identify the person. In fact, they identified Sri Bhagwandeo Tewari employed by M/s Agrawal Trading Corporation of 191, Harrison Road, Calcutta. Thereupon, the Customs Authorities took out a search warrant from the Chief Presidency Magistrate of Calcutta under Section 172 of the Sea Customs Act and the office of the petitioner firm was searched as also the residence of the partners, On scrutiny of the documents seized the following facts appeared:
(1) On 22-10-58 Bhagwandeo Tewari had been to M/s Thai Airways Co. Ltd., with a case, for which he had to pay rickshaw, and Taxi fare and coolie charges, which were recorded in the books of the petitioner firm. (2) On 24-10-58 Bhagwandeo Tewari had been to the office of the India Airline Corporation and incurred similar expenses which were only recorded. (3) From the attendance register of the petitioner firm, it was found that Bhagwandeo Tewari was the cashier of the firm. In fact, he admitted his handwriting in the books of account. (4) On comparison of the specimen writing of Bhagwandeo Tewari with the signature (signed as Ram Chandra) on the consignment notes regarding No. 085/SR 1082754 and No. 085/SR 1082755, it was found that the specimen writings and the signatures were in the same hand. A typed authority letter dated 24-10-58 accompanying the said consignment notes compared with a letter written by the petitioner firm and duly signed by Giridharilal Gupta one of the partners, showed that they were typed on the same typing machine. (5) Enquiries revealed that the case, booked under consignment Note No. 085/SR 1082754, said to contain images of Gods was sent in the name of Radhey Shyam of 201, Mahatma Gandhi Road, Calcutta, but that no such person ever resided at the said place, and it was a fictitious name. (6) During the course of search of premises No. 11B Jatindra Mohan Avenue, a duplicate shipping bill No. A. E. F. 910 dated 25-10-58 was discovered, taken in the name of one Gopikrishna Tai of 11, Beadon Street, Calcutta, but enquiries revealted that no such person resides or ever resided at the said place. (7) It appeared from an account-slip seized during the search that besides the expenses incurred by Bhagwandeo Tewari in connection with the cases which he took to the Indian Airline Corporation and Thai Airways Co. Ltd. a sum of Rs. 127-73 np. was shown as expenditure against the words "Hongkong Lagaya", the said sum being the exact freight paid for the case covered by the consignment Note No. 085/SR 1082755 containing the currency notes.
(3.) On the 6th May, 1959 the Assistant Collector of Customs and Superintendent. Preventive Service, Customs House, Calcutta, the respondent No. 1 in this application, issued a show-cause notice upon the petitioner firm, stating all the above facts. It was further stated therein that the exportation of the Indian currency out of India was prohibited, except with the general or special permission of the Reserve Bank of India or the Central Government. Under Section 8(2) of the Foreign Exchange Regulation Act read with the Reserve Bank of India Notification No. FFRA-105/51-RB, dated 27th February, 1951 (as amended). No such permit or authority existed in connection with the exportation of the said Indian Currency of the value of Rs. 51,000/-and, therefore, an offence had been committed under Section 23 of the Foreign Exchange Regulation Act. The petitioner firm was given an opportunity of showing cause, otherwise it was stated that a prosecution would be lodged under Section 23(1) read with Section 8(2) of the Foreign Exchange Regulation Act. On the 7th April, 1959 a similar notice was issued upon Giridharilal Gupta, the petitioner No. 2 in the application, asking him to show cause why penal action should not be taken under Section 167(3), (8), (37) of the Sea Customs Act. He was asked to state in his written explanation whether he wished to be heard in person. It was further stated that if ho failed to submit a written explanation in time or did not appear before the Assistant Collector of Customs when the case would be fixed, for hearing, the case might be decided on the basis of evidence on record without any further notice. On the 13th April, 1959 the petitioner firm submitted a written explanation. It was stated therein that the petitioner firm consisted of two partners, Giridharilal Gupta and Puranmull Jain. The defence was that the petitioner firm had nothing to do with the consignment in question, and that Ramghawan Singh was not known to the firm. It was denied that the ease in question was despatched by the petitioner firm or that Bhagwandeo Tewari was deputed to book the same. It was stated that the firm has no knowledge that Bhagwandeo Tewari had despatched the present consignment or any other consignment containing images of Gods. It was stated that although the duplicate shipping bill in the name of Gopikrishna Jain was recovered from the custody of Sm. Bhagwati Devi, who was the wife of a cousin of Giridharilal Gupta, she was living separately and not at the residence of the partners of the petitioner firm, who, it is claimed, had no knowledge of any shipment of a case containing currency notes. It was stated in the explanation that Giridharilal Gupta and Puranmal Jain were the partners and not Dangarmal Sarogi as mentioned in the show cause notice. The same explanation was given by Giridharilal Gupta in his individual capacity. On the 6th May, 1959 a corrigendum was issued to the show cause notice dated 7th April, 1959. The names of the partners were corrected. It was further stated that both the petitioner firm and the two partners thereof had committed an offence punishable under Section 167(3) and (8) and (37) of the Sen Customs Act read with Section 23-A of the Foreign Exchange Regulation Act, 1947 and they were to explain within seven days why a penal action should not be taken against them under Section 107(3), (8) and (37) of the Sea Customs Act. It was further stated that if a written explanation was not submitted with documentary evidence in support thereof within seven days, the case will be decided upon the basis of the evidence already on record, without further; notice. In the explanation given to the show cause-notice, a request was made for the inspection of certain documents and inspection was given. This was recorded in a letter dated 19th May, 1959 written, jointly by the petitioner firm and Giridharilal Gupta. This is the only explanation on record and it simply states that they had no knowledge of the offending parcel and hope was expressed that the matter would be dropped. Beyond this, there was no explanation given, no personal hearing asked for, and nobody appeared when the matter was decided. On the 30-5-1959 the matter was disposed of by an order made by the Additional Collector of Customs, Calcutta, the respondent No. 2 in this application. A copy of the order is annexure "E" to the petition. It was held that upon the evidence on record, it had been established that the offence had been committed and that the offending Indian currency should be confiscated under Section 167(8) and (37) of the Sea Customs Act without any option, and a personal penalty imposed of Rs. 1000/- under Section 167(3) of the Sea Customs Act, a personal penalty of Rs. 1000/- under Section 167(37) of the Sea Customs Act, and a personal penalty of Rs. 51,000/-under Section 167(8) of the Sea Customs Act read with Section 23(A) of the Foreign Exchange Regulation Act. On the 27th June, 1959 the petitioners prayed for an extension of time to deposit the- amount, and, thereafter, this application was made in July 1959 and the Rule issued. A second. Rule was issued on the 28th August, 1959 which has been numbered as Matter No. 115 of 1959 and relates to the release of five cases of art silk and piecegoods which have been seized and/or detained by the Customs Authorities under Section 192 of the Sea Customs Act, in execution of the amount due from the petitioner under the order dated 30th May, 1959.;