P.Chakravartti, C.J. - (1.) The Collector of Customs, Calcutta and four of his officials on one side and a firm called the Calcutta Motor and Cycle Company and its four partners on the other are both dissatisfied with an order of Sinha J., dated the 9th August, 1955, whereby he quashed three notices issued by the Customs officials under Section 171-A(1) of the Sea Customs Act on the partners of the firm and at the same time held that a search of the premises of the firm and the seizure of certain prohibited goods thereat had been perfectly legal. The Collector and his co-appellants want the notices to stand, while the members of the firm want the search and seizure to be declared illegal and the goods seized to be returned to them. Against so much of the order as is adverse to them, the Customs officials have appealed, while the remainder of the order has been challenged by the members of the firm in a cross-objection.
(2.) The facts are simple and may be shortly stated. According to the Customs authorities, they received information that the Respondent firm, in collusion with various other firms, had been importing goods without valid licences, were not declaring the correct value or the correct description of the goods at the time of their importation and were bringing into existence various documents for the purpose of creating evidence in their favour. On receipt of such information, they made some enquiries and came into possession of certain facts and eventually on the 16th May, 1955, the Assistant Collector of Customs and Superintendent of Preventive Service made an application to the Chief Presidency Magistrate of Calcutta under section 172 of the Sea Customs Act for the issue of four warrants for the search of the four premises, including the firm's shop, its godown and the residence of one of its partners. The Magistrate issued the warrants applied for. On the strength of one of those warrants relating to the firm's shop at 5, Bentinck Street, Calcutta, the Customs authorities held a search of the shop rooms which began in the afternoon of the 18th May, 1955 and was concluded in the morning of the following day. In the course of the search, they seized one bundle of velvet and one bundle of sharkskin which were admittedly prohibited goods. They also seized a large number of files, but when they wanted to take them away, strong objections were raised by a large band of lawyers whom the firm's partners had in the meantime brought to the scene. This happened at about 9 p.m. and as the Customs officials were unable to deal with the legal arguments of the lawyers and could not also, at that late hour, consult the Government Solicitor, which they wanted to do, they left the files in one of the ante-rooms and sealed its doors. It is alleged that many of the files contained incriminating material, but when on the next day the door was unlocked, it was found that a large number of the files had disappeared. The search was continued and concluded at 10-15 a.m., the search party taking away with them the two bundles of sharkskin and velvet and seven files which were allegedly all the files left.
(3.) On that very day, i.e. on the 19th May, 1955, one Shri D.G. Banerji, Rummaging Inspector (Intelligence), issued a notice on Shri S.M. Jajodia, one of the partners of the firm, under Section 171-A(2) of the Sea Customs Act. The notice sai3 that on checking the files it had been found that as many as 52 files, the numbers of which were given, were missing and Shri Jajodia was asked to produce those files within a week. A second notice under no particular provision of law was also issued on the same day on Shri S.M. Jajodia by one Shri C. Basu, Superintendent, Preventive Service and by that notice he was asked to produce by the 23rd May, 1955, any evidence which he might have in his possession to show that the sharkskin and velvet had been legally imported into India or if his firm had not imported the goods but purchased them, from a third party, such evidence as he might have in his possession of the purchase. On the next day, i.e. the 20th May, a third notice under Section 171-A of the Sea Customs Act was issued by one J. Smith, Chief Inspector, to the four partners of the firm and they were asked to appear before Smith on the 21st May, 1955 at 10 a.m. On the same day, a further application for a search warrant with respect to the firm's godown at 16 Mangoe Lane, Calcutta, was made to the Chief Presidency Magistrate by the same Assistant Collector of Customs and Superintendent, Preventive Service and a warrant was issued forthwith. Armed with that warrant, the Customs officials went to 16 Mangoe Lane and caused the godown to be opened for holding a search, but according to them, the members of the firm asked for a day's time to produce the documents relating to the importation of the goods stored in the godown and then asked for further time till the 23rd May, 1955, which was granted. According to the Respondents, the Customs officials first went to the godown at 16 Mangoe Lane on the 18th May, before they had obtained a search warrant, but this the Customs officials denied, On the 23rd May, 1955, a fourth notice was issued by Shri D. G. Banerji, Rummaging Inspector (Intelligence) to the firm under Section 171-A of the Sea Customs Act and by it the firm and each and all of its partners individually were asked to produce forthwith all the documents relative to the importation, purchase or sale of the goods lying in the godown at 16 Mangoe Lane.;