SARKAR, J.: - (1.) THE following Judgment were delivered.
(2.) THE appellants had brought into India from the U.S.A. a large quantity of electrical instruments under a licence. THE respondent, the Collector of Customs, Calcutta, started proceedings for confiscation of these goods tinder s.167(8) of the Sea Customs Act, 1878. THE appellants contend that the proceedings are entirely without jurisdiction as the Collector can confiscate only when there is an import in contravention of an order prohibiting or restricting it and in the present case the Collector was proceeding to confiscate on the ground that a condition of the licence under which the goods had been imported had been disobeyed. THE appellants, therefore, ask for a writ of prohibition directing the Collector to stop the proceedings. THE question is, has the Collector jurisdiction to adjudicate whether the goods are liable to be confiscated? THE decision of that question, however, depends on certain statutory provisions and the fact of the case to which, therefore, I shall immediately turn. Sub-section (1) of s. 3 of the Import and Exports (Control) Act, 1947, provides that the government may by order prohibit, restrict or otherwise control the import of goods. By Notification No. 23-I.T.C./43 issued under r. 84 of the Defence of India Rules which by virtue of s. 4 of the Act of 1947 is to be deemed to have been issued under that Act, it was ordered that DO electrical instrument could be brought into India except under a licence. By another order made under s. 3 of the Act and contained in Notification No. 2- ITC/48, dated 6/03/1948, it was provided that the licence to import electrical instruments might be issued subject to the condition that the goods would not be disposed of or otherwise dealt with without the written permission of the licensing authority. The first appellant is a company and the second appellant, one of its directors. On 8/10/1948, a licence was granted to the appellant to import from the U.S.A. a large quantity of electrical instruments, namely fluorescent tubes and fluorescent fixtures. In the application for the licence it was stated that the goods were not required for sale but for modernising the lighting system of the appellant's factory at Ellore in Madras. The licence was issued subject to the condition that the goods would be utilised only for consumption as raw material or accessories in the licence holder's factory and that no portion thereof would be sold to any party.
(3.) THE goods duly arrived in India and were cleared out of the customs sometime about the end of February, 1949. Soon thereafter, the authorities concerned are said to have got information that the goods were being sold in the market in breach of the condition of the licence. THEreupon the police took steps and after obtaining a search warrant from a Magistrate in Calcutta on 12/08/1949, seized a large stock of the goods from the godown of the appellants. Thereafter on 12/01/1951, two proceed. ings were started. One of them was a prosecution of various officers of the appellant company including the second appellant under s. 420 read with s. 120 of the Indian 'Penal Code on the allegation that the licence bid been obtained on false and fraudulent representations as there was no intention at any time to use the goods for any factory. After certain proceedings to which it is unnecessary to refer, the accused persons were discharged by a Presidency Magistrate of Calcutta on 27/07/1953, under s. 253 of the Code of Criminal Procedure and the prosecution under so. 420 and 120B of the Penal Code came to an end. The learned Magistrate held that it had not been proved that the licensing authority had been deceived by any representation of the accused officers of the company nor that `right from the time of applying for the licence, the intention was to sell the goods or part thereof`.;