P.C. Pandit, J. - (1.) THIS is a petition under Article 226 of the Constitution filed by Amir Singh, proprietor of Messrs. Sunder Singh Amir Singh. Goldsmiths, Faridkot, challenging the legality of the order passed by the Collector of Central Excise and Customs, New Delhi, confiscating two gold bars, weighing 110 tolas, 4 mashas 3 rattis under section 167(8) of the Sea Customs Act, 1878 (hereinafter referred to as the Act' read with section 19 of the same Act, made applicable by section 23 -A of the Foreign Exchange Regulation Act, 1947.
(2.) ON 11th January 1957 at about 8 in the evening, on information having been received earlier, the customs preventive party apprehended the petitioner at Amritsar Railway Station. Oil his personal search, the following articles were recovered : (i) Two bars of gold weighing 110 tolas 4 mashas and 3 rattis. (ii) one pair of bangles weighing 1 tola 10 mashas and 3/4 ratti, and (iii) Indian currency worth Rs. 1,163/ -. According to the allegations of the petitioner, in January 1957 he had received an order from His Highness the Raja of Faridkot for manufacturing a number of silver articles, which had to be delivered at an early date. For the purpose of executing this order, he had gone to Amritsar for purchasing silver and for securing services of some technical hands, who were required for the manufacture of these articles. After having been apprehended, he was taken to a police -station by the customs officials and was subjected to inhuman methods of investigation. He was, consequently, obliged to sign certain documents, purporting to contain the substance of interrogation made by the said officials. Next day, when the petitioner was still in their custody, in compliance with their orders, his Munim, Moti Ram, had brought the papers and the account -books of his firm from Faridkot for their inspection. He was also forced to affix his signatures to another document. Later on, the petitioner was released and he sent telegrams to the higher authorities stating that his and his Munim's signatures on certain documents were obtained by force by the Customs officials. The Assistant Collector, Land Customs, Amritsar, was, therefore, annoyed with the petitioner and he issued a show -cause notice to him under section 178 -A of the Act, calling upon him to prove that the gold seized from him was not smuggled one. In reply to this notice, the petitioner produced oral evidence of respectable witnesses and unimpeachable documentary evidence, which conclusively established that the gold in question had been acquired by him by lawful means. The petitioner also made a written request that he should be given a personal hearing before the case was decided. As a result, Shri R. Parshad, Collector of Customs, New Delhi, gave a personal hearing to him on 10th January 1958, when all the documentary and oral evidence was sifted by the said Collector and he found that the entries in the books and the contents of the affidavits of respectable persons, which had been filed by him, "were authentic". After the hearing was over, the Collector informed the petitioner that the orders would be communicated to him in due course. In the meantime, Shri R. Parshad was transferred and Shri B.D. Deshmukh was appointed in his place. On 12th July 1958 he passed the impugned order without affording any hearing to the petitioner. While deciding the case against him, he pressed into service the statements of two persons, namely, Dharam Pal and Tek Chand, who were never examined or produced in the presence of the petitioner and he had no opportunity to cross -examine them. Against this order, the petitioner filed an appeal before the Central Board of Revenue, New Delhi, who dismissed the same without giving any opportunity to the petitioner of being heard. Thereafter, the petitioner filed a revision petition under section 191 of the Act to the Central Government. The same was also rejected on 6th July, 1961 without hearing the petitioner. This order was actually received by the petitioner in August 1961. Thereupon, the present writ petition was filed on 26th December, 1961. In the return filed by the respondents, it was stated that the petitioner was arrested at about 8 in the evening of 11th January, 1957 from the Rickshaw Stand, outside the Railway Station, Amritsar. Prior to his arrest, there was information with the Customs authorities that the petitioner was carrying smuggled gold. On the search of his person, the above mentioned articles were recovered. On being questioned, the petitioner made a lengthy statement to the effect that he had brought ornaments from Faridkot to Amritsar and had them melted from the shop of one Dharam Pal in Amritsar with a view to purchase silver from the sale proceeds of the melted gold. Dharam Pal, who was then along with the petitioner, was immediately questioned as to the correctness of the petitioner's statement. He denied any knowledge about the possession of these ornaments by the petitioner. He also stated that he had not melted any gold brought by the petitioner. In fact, his shop did not deal with the melting of ornaments. The petitioner was released at about midnight. He appeared on the following day along with his Munim, Moti Ram, and his books of account with a view to convince the Customs authorities that regular entries in respect of the gold, which was seized from him, existed therein. The entries were examined and the statement of the Munim was also recorded. Moti Ram stated that the entries in respect of the gold in question had been made in the books of account on the morning of 12th January, 1957 at the instance of the petitioner. It was denied that any coercion or undue influence was exercised at the time of the recording of the statements of the petitioner and his Munim. The petitioner gave another statement on 12th January, 1957 to the effect that he had brought gold ornaments weighing about 50 tolas from Faridkot and had purchased an equal quantity of gold from one Tek Chand Dalai of Amritsar. This statement was made by him, apparently, because he found that his previous statement could not be sustained in view of deposition of his Munim, Moti Ram. The Customs authorities then immediately contacted Tek Chand in the presence of the petitioner. He, however, denied having sold any gold to the petitioner on 11th January, 1957. It was true that on 15th January, 1957 the petitioner made a complaint to the Collector, Central Excise, Delhi, about the maltreatment meted out to him. This complaint, however was duly investigated and was eventually found to be baseless. On 1st February, 1957 a show -cause notice was issued to the petitioner, to which he sent a reply through his counsel. No documentary evidence was, however, filed by him along with his reply dated 13th February, 1957. The petitioner had asked for a personal hearing and the same was granted by Shri R. Parshad, the then Collector, Central Excise, on 10th January, 1958. During the course of this personal hearing, the petitioner placed on record some documents in the form of affidavits. He was accompanied by his Advocate, Shri M.M. Sharma, who was duly heard. After hearing, Shri R. Parshad on the same day made a detailed note of the points raised by the petitioner's counsel and of the answers made by the petitioner to the questions put to him. Shri R. Parshad was later on transferred and Shri B.D. Deshmukh came in his place, who passed the impugned order on 12th July, 1958, after having duly considered the note prepared by his predecessor along with the other material placed on the record The seizure of the gold was on the basis of reasonable belief founded upon the existence of prior information that the petitioner was in possession of smuggled gold. It was further stated that at the time the petitioner's appeal was heard, he was present along with his counsel and full opportunity was given to him to present his case. It was not necessary, under the law, to hear the petitioner before his revision petition was disposed of by the Central Government.
(3.) LEARNED counsel for the petitioner confined his arguments to the following two points : Firstly, he contended that he was not heard by the Collector, who passed the impugned order. It was true that Shri R. Parshad had given him a personal hearing, but since the order of adjudication was passed by Shri B.D. Deshmukh, under the law, it was necessary that he should have also personally heard him. Secondly, he submitted that the impugned order had been based on the evidence of Dharam Pal and Tek Chand, who were never examined in the presence of the petitioner, and he, consequently, had no opportunity to cross -examine them. On these two grounds, it was submitted that the impugned order was opposed to all principles of natural justice.;