Sabyasachi Mukharji, J. - (1.) In this application under Article 226 of the Constitution Messrs. Hoare Miller & Co challenges the notice dated 5th October, 1967 issued by the Assistant Collector of Customs to the petitioner to show cause why the goods covered by the three shipping bills mentioned in the said notice should not be confiscated under Section 113 (d) of the Customs Act, 1962 and why penal action should not be taken against the petitioner under Section 114 of the Customs Act, 1962. After setting out the facts of those three shipping bills the notice stated, inter alia, as follows:-- "3. The facts detailed in para. 2 tend to show that the contracts in respect of the subject Roods have been entered into between Messrs. Union Agencies (Distributors) Pvt. Ltd. Rhodesia and the exporters. The name of their Zambia Associates Messrs Factors Zambia Ltd., had been utilised as a cover and Messrs. J. N. Barnett & Co. Beirs as their Agent for diversion of the goods to Rhodesia. Exports to Rhodesia are prohibited in terms of the Government of India order No. 9/65 dated 17-11-65 issued under Section 3 of the imports & Exports (Control) Act. 1947. As it appears that Messrs. Hoare Miller & Co. Ltd., have filed the shipping bills under reference in an attempt at exporting the goods to Rhodesia in contravention of the aforesaid prohibition, the goods under reference appear to be liable to confiscation under Section 113 (d) of Customs Act and Messrs. Hoare Miller & Co. Ltd. is liable to penal action under Section 114 ibid, for attempting to contravene Section 11, Customs Act read with Sec. 3 Imports & Exports (Control) Act, 1947. Messrs. Hoare Mills & Co. Ltd. are hereby directed to explain in writing and to show cause within a week hereof why the goods should not be confiscated under Section 113 (d), Customs Act. 1962 and why penal action should not be taken against them under Section 114, Customs Act, 1962. They should also produce documentary evidence if any in support of their explanation. They may also inform this office in writing if they would like to avail of any personal hearing in this matter. If no reply is received within the stipulated time, the case will be adjudicated on the basis of evidence on record without any further reference to them. This is without prejudice to any other action that may be taken under any other law for the time being in force in India. They may take inspection of the documents and copies thereof by prior appointment with the undersigned."
(2.) In effect, the notice stated that the goods covered by the shipping bills were indirectly meant for Rhodesia export to which country was prohibited and as such the petitioner has contravened the provisions of law. In this connection, it is relevant to refer to the Notification of the Ministry of Commerce prohibiting export of goods to Rhodesia. The said notification was to the following effect:-- "S. O. 3613.-- In exercise of the powers conferred by Section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947) the Central Government hereby prohibits the import and export of all goods whether directly or indirectly, into or from any port or place in India, from or to any place in Rhodesia. No. IPC (Genl. 44)/65 P. Sabanayagam, Chief Controller of Im- ports & Exports.''
(3.) In this application under Article 226 of the Constitution the petitioner has challenged the said show cause notice. For the purpose of this application the petitioner has confined the challenge to three grounds. It was contended, firstly, that the prohibition of export was by the Controller and not by the Central Government. It was contended that under the Imports and Exports (Control) Act, 1947 it was the Central Government which was competent to impose any prohibition and not the Controller. Secondly, it was urged that there was no juirsdiction under Section 3 of the imports and Exports (Control) Act, 1947 to restrict export indirectly. It was submitted that such a restriction amounted to vague restriction. It was, thirdly, urged that the order in question was not valid inasmuch as there was no specification of the goods intended to be prohibited, I will examine the validity of the each one of the aforesaid three contentions. In this connection, it may be relevant first to refer to the provisions of the Imports and Exports (Control) Act, 1947. Section 3 of the said Act provides as follows :-- "3. Powers to prohibit or restrict imports and exports.-- (1) The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise control-line, in all cases, or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order; (a) the import, export, carriage coastwise or shipment as ships, stores of goods of any specified description; (b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried. (2) All goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited under Section 11 of the Customs Act, 1962 (52 of 1962) and all the prohibitions of that Act shall have effect accordingly. (3) Notwithstanding anything contained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose conditions on the clearance, whether for home consumption or for shipment abroad, of any goods or class of goods imported into India.";