Decided on June 21,1961

Palriwala Brothers Limited Appellant


- (1.) This is an appeal from an order of P.B. Mukharji, J., dated December 23, 1957, dismissing an application under Article 226 of the Constitution of India asking for Writs in the nature of Mandamus and Certiorari for cancellation of an order of imposition of penalty under the provisions of the Sea Customs Act made by an Additional Collector of Customs on June 28, 1956.
(2.) The Appellant is a public joint stock company having its registered office at No. 14, Netaji Subhas Road, Calcutta and carries on business inter alia as general merchants and exporters of various goods and commodities and ft was at all material times the Managing Agent of a company known as Shree Shew Sakti Oil Mills Ltd. having its factory and godown at No. 153, Upper Circular Road, Calcutta. In the first half of February, 1956 the Appellant was served with 13 several notices to show cause bearing Nos. S37-255/55P (Part I) to S37-255/55P (Part XIII). Three of such notices are dated February 7, 1956, two of them are dated February 8, 1956, another three of such notices are dated February 10, 1956, two others are dated February 11, 1956 and the remaining three are dated February 14, 1956. It is alleged that besides these 13 notices, another notice to show cause, dated February 8, 1956, bearing No. S37-255/55P (Part) "ALCA" was also served on the Appellant. In the last mentioned notices which was issued under the signature of Shri S.K. Srivastava, who described himself as the Assistant Collector of Customs and Superintendent, Preventive Service, it was stated that the Appellant who had a licence to export only 25 tous of sesame seeds had actually shipped on board the ship S.S. "ALCA" 500 bags of Indian sesame seeds which were found on weighment at Genoa to contain 47 tons 18 cwt. 3 qr. 25 lbs. as against the declared weight in the Bill of lading of 25 tons 8 cwt. 3 qr. 13 lbs. and this shipment of the goods in excess of the weight permitted by the licence contravened the provisions of the Sea Customs Act, the Import and Export Trade Control Act and the Foreign Exchange Regulations Act. Accordingly, the notice called upon Palriwalla Brothers Ltd. and three persons, S.N. Palriwala, G.S. Palriwala and G.N. Palriwala, to submit an explanation in writing along with all the original or certified copies of the documentary evidence on which they wanted to rely in support of the explanation within a week from the date of the notice, and they were also called upon to show cause why penal action should not be taken against them under Section 167(3)(8) of the Sea Customs Act, The notice further required the said persons to state whether they wished to be heard in person before the case was decided. Warning was also given in the said notice that if the written explanation was not submitted in time or the persons against whom the notice had been issued did not appear before the undersigned when the case was fixed for hearing, the case might be decided on the basis of evidence on record without any further notice to them. The receipt of this notice hearing No. 837-255/55P (Part) "ALCA", dated February 8, 1956, is disputed by the Appellant. But the Appellant admits that the other 13 notices to show cause had been duly received by the Appellant company and they had given Hue replies in respect of such notices. It appears however that on March 6, 1956 Shri S.K. Srivastava, the Assistant Collector of Customs and Superintendent, Preventive Service, wrote a letter to the Appellant company, the material portion whereof is as follows: To Messrs. Palriwala Bros. Ltd. No. 14, Netaji Subhas Road, Calcutta. Sub.: Contravention of the provisions of the Sea Customs Act and Export Trade Control Act and the F.E.R.A. shipment of 600 bags of Indian sesame seeds on board s.s. "Alca" under cover of S/Bill No. E490 (AP) of 26-8-55. Please refer to the office Show Cause Memo. No. S37-255/55P (Part) "Alca" dated 8-2-56. It is noticed that no reply to the above Show Cause Memo, has so far been received from you. You are hereby directed to submit the same within 3 days from date failing which the case will be decided ex parte. Sd. S.K. Srivastava
(3.) On receipt of this letter the Appellant on March 8, 1956 wrote in reply stating that all the notices to show cause that had been actually received by the company had been replied to by them and if no reply had been sent to any other notice that had been sent, the company was sorry for that, and the Appellant company further asked that copies of the shipping bills and other documents and papers which were in the possession of the Custom and Export Control Authorities concerned, be supplied to them and they also asked for inspection of the original papers and documents in connection with the same. It was further pointed out in this letter that on receipt of the copies of the documents the company would make such representation as they might be advised. The case of the Respondents is that on receipt of the letter of March 8, 1956 Shri S.K. Srivastava had written in reply a letter dated May 17, 1956 by which inspection of the shipping bills was offered on May 19, 1956 at the office of the Rummaging Inspector, Custom House, Calcutta, and the Appellant company was asked to make their final submissions by August 22, 1956 and it was pointed out that if the Appellant company failed to turn up for inspection of the documents or to submit final submissions within the time mentioned, the case would be adjudicated without further reference to the Appellant company on the basis of the evidence on record. The case of the Appellant company, however, is that no such letter was received by them at any time. It appears that thereafter on June 28, 1956 Shri S.K. Srivastava, who had in the meantime become the Additional Collector of Customs, purported to make an order in respect of the alleged contravention of the Sea Customs Act and other Acts, in respect of the said 500 bags of Indian Sesame seeds on board S.S. "ALCA" under cover of shipping bill No. E490 (AP) of August 26, 1956 for which the alleged notice to show cause bearing No. S37-255/55P (Part) "ALCA", dated February 8, 1956, had been issued. By the said order the Additional Collector of Customs imposed a personal penalty of Rs. 22,000 on the Appellant company and the order further directed the said penalty to be deposited in the Custom House Treasury within a week from date. But although this order was issued on June 28, 1956 it was despatched by the office of the Additional Collector of Customs on the July 2, 1956 and was received by the Appellant company on July 4, 1956. The grievance of the Appellant company is that as no notice to show cause dated February 8, 1956 was received by them and as no date for hearing of this case had been fixed by the Custom authorities nor any proper opportunity to make representations against the alleged notice had been afforded to the Appellant company and as Mr. S.K. Srivastava was himself the prosecutor and the Judge in the said case and he had all along a bias against the Appellant the order passed by Shri S.K. Srivastava on June 28, 1956 is invalid and inoperative being in violation of the principles of natural justice and the fundamental principles of judicial procedure.;

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