Sinha, J. - (1.) The facts in tills case are shortly as follows: Some time in March 1954, the Customs authorities obtained information that two insured parcels which were declared as containing "Handloom cloth", then lying at the Calcutta General Post Office, contained contraband goods. A batch of C. P. C., officers went to the post office and requested the postal authorities to deliver the parcels to the consignee in the presence of the officers. But no consignee turned up, and ultimately the two parcels were handed over to the customs authorities by order of the Chief Presidency Magistrate, Calcutta. The first insured Parcel No. 120 was despatched by one P. B. Deb from Agartalla post office to Messrs. Sell Abu Backer & Co. of 58, Lower Circular Road, Calcutta. The second insured Parcel No. 77 was despatched by Section N. Ghosh from Agartalla Bazar post office, to Messrs. Md. Abu Backer & Co. of 65/11-12, Lower Chitpore Road, Calcutta. Upon being opened, the first was seen to contain 11 pieces of gold bars weighing 188, 5/8 tolas and the second one was seen to contain 9 pieces of gold bars weighing 199, 1/2 tolas. According to the information obtained by the customs authorities, there exists a widespread system of smuggling gold from Eastern Pakistan via Agartalla. The circumstances under which this gold was sent, induced the authorities to think that the gold was contraband. I may mention here that the value of the gold which had been sent under the false description of "Handloom cloth', would be in the neighbourhood of Rs. 30,000/-, and that Agartalla is not a normal source of supply of gold to the Calcutta market. The authorities first contacted the consignees in Calcutta by serving show cause notices upon them. Messrs Md. Abu Backer & Co. of 65/11-12 Lower Chitpore Road absolutely disclaimed all responsibility in the matter, stating that no insured parcel was receivable by them from Agartalla Bazar and they knew nothing about it. The other firm, Sell Abu Backer & Co., stated that one Shermal Jain, proprietor of Mahabir Stores, Agartalla (petitioner in this case) happened to be their customer. He told them that he was temporarily going out of Calcutta and requested them to receive a parcel on his behalf, but they disclaimed knowing anything about the contents. Next, Shermal Jain the petitioner herein, was contacted. He claimed ownership of the gold bars and stated that Section N. Ghosh and P. B. Deb were employees attached to his, firm Mahabir Stores at Agartalla. They had sent the gold bars, declaring them to be 'Handloom cloth' in order to please their employer and save postage.
(2.) As regards the gold, the story made out was as follows: 240 tolas 2 annas of gold was purchased by the petitioner from one Sri Motilal Deb Nath of Agartalla and 150 tolas 6 annas of gold was purchased by the petitioner from Messrs. Joy Banker Raiyya Guru of Calcutta. Motilal Deb Nath of Agartalla is a farmer and land owner at Agartalla. Messrs. Joy Sanker Rajyya Guru of Calcutta were dealers in gold. It was alleged that the petitioner wanted the gold for making ornaments. The petitioner did produce two receipts from the alleged sellers. The reason why the gold was sent back to Calcutta is as follows;
(3.) It is said that a theft took place at the petitioner's shop at Agartalla involving a sum of Rs. 13,270/- and that heavy sums of money were due to different creditors in his business at the time, and that moneys were due from the consignees, who were creditors. The gold was sent down to Calcutta for the purposes of liquidating the debts. A definite case was made that the petitioner owed Rs. 8,000/- to Sell Abu Backer and Rs. 5,000/- to Md. Abu Backer and Co. and that it was proposed to pay off these debts as also others, after selling the gold. Both Messrs. Sell Abu Backer and Md. Abu Backer & Co., have denied that any money is due from the petitioner to them. 3. On or about 25-5-1954 a show cause notice was served on the petitioner by the Superintendent of Central Excise and Land Customs, Central Preventive Circle, Calcutta, copy whereof is annexed to the petition. The notice, inter alia, stated that gold had been brought into India from Pakistan across the land frontier and subsequently brought to Calcutta without either a valid permit of land customs in contravention of Section 5, Land Customs Act, 1924 and without a valid permit granted by the Reserve Bank of India in contravention of various notifications under the Foreign Exchange Regulation Act of 1947. It was stated that an offence had been committed under Section 5, Land Customs Act, 1924 and Section 19 or the Sea Customs Act, 1878 as made applicable by Section 23A/23B, Foreign Exchange Regulation Act, 1947. The petitioner was called upon to show cause why penal action should not be taken against him and the gold confiscated under Section 7, Land Customs Act. 1924 and Section 167 (8), Sea Customs Act, 1878. The petitioner submitted his explanation, a copy whereof is annexed to the petition. It appears that hearings were given on various dates and the petitioner himself produced evidence and witnesses and was represented by counsel. Even the gold had to be produced for examination by goldsmiths. Copies of the minutes have been produced in Court and I direct that they should be filed as of record.;