- (1.) The facts in this case are shortly as follows : The petitioner is an employee of the firm of Messrs. Mahadeb Basak & Brothrs, Khagra, Murshidabad, carrying on business as jewelers. On the 28th of August, 1956 he was apprehended on the Krishnapur local train at Sealdah and two pieces of gold bar weighing 30 tolas 9 pies were found in his possession and seized, and a detention receipt was given to the petitioner, a copy whereof is Annexure A to the petition. The description of the seized gold was "Two pieces of gold without any marks or numbers (Subject to Chemical Test)" On or about the 20th of June, 1956 the petitioner was served with a show cause notice by the Superintendent, Land Customs Calcutta, the respondent No. 2. stating that there was reason to believe that the gold had been imported from Pakistan without a valid permit as required in law and the petitioner was called upon to show cause why the goods should not be confiscated and penalty imposed. The petitioner gave his explanation. His explanation is briefly as follows: He says that he was employed by the Murshidabad firm mentioned above. He arrived at Calcutta from Khagra on the 28th May, 1956 to purchase gold for his employers. This particular gold which was found in his possession is stated to have been purchased by him from a jewellery shop, Messrs Radhakissen Addy & Co., of No. 10, Nalini Sett Road, Sonapatti, Calcutta. The petitioner states that the sellers did not give him a cash memo, nor entered it in their books of account and he frankly confesses that this was in order to avoid sales tax. He further states that one Hemanta Kumar Mukherjee was present when this purchase had been made. It is said that this Hemanta Kumar Mukherjee is a respectable citizen of Khagra town and brother of the Vice Chairman of the Khagra Municipality. The petitioner filed an affidavit affirmed before a Presidency Magistrate by this Hemanta Kumar Mukherjee. The show cause notice had asked the petitioner to state whether he wanted to be heard personally and in his explanation the petitioner asked for a personal hearing. The petitioner was heard personally and the findings of the Collector of Land Customs, Calcutta is contained in Annexure A to the petition. By this order the Collector confiscated the gold under Section 167(8) of the Sea Customs Act, 1878 read with Section 23A of the Foreign Exchange Regulation Act, 1947, the confiscation being absolute, that is to say, without an option of paying a fine. It is this order which has been challenged in this application.
(2.) The first point that has been taken by Mr. Dutt appearing on behalf of the petitioner is that there has been a gross violation of the rules of natural justice because the Collector relied on the evidence of the firm of Radha kissen Addy & Co., which was taken behind his back and which he was not appraised of and had no opportunity to meet. The matter is dealt with as follows in the order of the Collector : "Enquiries were made in the books of firm M/s. R.K. Addy & Co., from whom the gold was said to have been purchased. During the investigation the firm denied any such sale to Shri Suniti Kumar Saha. It is, therefore, obvious that no legal notice can be taken of the pleas put forward by the party. It is thus evident that the party was found in possession of the seized gold for which he could not give any satisfactory account. What is worse has given an explanation which has not been found correct on verification."
(3.) It is obvious, therefore, that the Collector was relying on the evidence of the preliminary enquiry of which the petitioner knew nothing. In my opinion this is fatal to this order. As I have had occasion to point out before, the Collector might make any amount of preliminary enquiries. But if he wishes to depend on any evidence given therein, then he must apprise the accused of that evidence and give him an opportunity to meet it. Here what is stated is that Messrs. R.K. Addy & Co., denied the sale. It is not known who belonging to that firm had denied the sale and certainly the petitioner had no opportunity of meeting such evidence. It was wholly taken behind his back, and he knew nothing about it.;