Decided on August 06,1991



K. Sankararaman, Member (T) - (1.) THESE three appeals filed by Shri Janardhan Thakur, M/s. Jeena & Co. and Shri K.K. Bhattacharya arise from the same adjudication order. They involve common issues and are accordingly disposed of by this common order. The first two appeals were heard by us on 15th July when learned Senior Counsel Shri S. Kapoor along with Advocates Shri S. Gupta, D. Sinha and S. Sinha appeared for the concerned appellants. The same Counsels appeared for the third appellant Shri K.K. Bhattacharya on 29th July, 1991.
(2.) The essential facts involved in the matter which led to the passing of the impugned order-in-original dated 9-6-1988 by the Additional Collector of Customs, Calcutta, are as below:- 2A. M/s. Jeena & Co., Customs House Agents, prepared a Shipping Bill for the export of 38 packages of what was described in the Shipping Bill as "Paper Mask", the exporter being one Jean Sala, a French national. The goods were declared as "Tourist Purchase". The said exporter had signed the declaration in the Shipping Bill about the truth of the statements made therein. When the packages were produced for Customs examination and two packages were examined, they were found to contain Papier Mache boxes therein, some of which were found to be heavier than the others. They were forced open in the presence of the representative of the Customs House Agents, M/s. Jeena & Co. and two independent witnesses. They were found to contain a darkish green/brown coloured semi-solid substance with a pungent smell. On chemical test the said substance was found to be Hashish. The tourist exporter who had sought to export the same and who had signed the declaration in the Shipping Bill was not found in Grand Hotel, Calcutta, which address had been given in the Shipping Bill. He was later traced in Port Blair, Andamans. After necessary investigations the Assistant Collector of Customs, Special Investigation Branch, Customs House issued a show cause notice dated 2-12-1986 calling upon Mr. Jean Sala and Shri K.K. Bhattacharya of M/s. Jeena & Co. Custom House Agents to explain as to why the Hashish seized should not be confiscated and why penalty should not be imposed on them under Section 114(1) of the Customs Act, 1962. Though a copy of the notice was also issued to M/s. Jeena & Co., no action was indicated against them. However, a supplementary notice was issued on 20-1-1987 whereunder both Shri Janardhan Thakur, the Senior Export Executive of M/s Jeena & Co. and the firm, Jeena & Co. were asked to show cause why penal action should not be taken against them under Section 114(1) of the Customs Act, 1962 for aiding and abetting Mr. Jean Sala in attempted export of 193 kg of Hashish valued at Rs. 11,50,000/-. After the appellants were heard by the Additional Collector of Customs, he adjudicated the case holding them guilty of the offences alleged against them and imposed penalties under Section 114(1) of the Customs Act, 1962. The main accused Mr. Jean Sala who did not attend the personal hearing was imposed a penalty of Rs. 1,50,000/-. The Hashish was confiscated. The appeals before us have been filed as stated earlier by the company M/s. Jeena & Co. and its two employees, S/Shri Janardhan Thakur and K.K. Bhattacharya.
(3.) M/s. Jeena & Co. have submitted in their appeal that theirs is an old and reputed firm of Customs House Clearing Agents having been established in the year 1900. The exporter in question had arranged two exports earlier through them in the years 1984 and 1985. Nothing irregular was found by the Customs department on the said two occasions. They had acted in good faith and had no knowledge that the packages contained any contraband goods. The impugned order contains no finding that their two Officers had any knowledge of the contents of the consignment in question. The allegation that they (Jeena & Co.) had filed the Shipping Bill knowing that the said consignment contained Hashish is unfounded. The registered firm being a juristic person can have any knowledge only through its Partners or Officers. When against their two Officers (Shri Janardhan Thakur and Shri K.K. Bhattacharya) there was no allegation of knowledge of the contents of the packages, the question of knowledge against the firm does not arise at all. This and a number of points listed by them had been agitated by them before the Additional Collector during the personal hearing granted to them on 29-1-1988 but the same had not been properly recorded and dealt with by him. It was urged in the appeal that if the person lending his support does not know or has no reason to know about the commission of offence, he cannot be said to have intentionally aided or facilitated the commission of offence and that he was an abettor.;

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