Delhi High Court
Sita Ram Aggarwal vs The Union Of India And Ors. on 16 December, 1966
Equivalent citations: AIR1967DELHI38, AIR 1967 DELHI 38
ORDER
(1) By an order dated 8th March, 1957, the Collector of Central Excise and Land Customs , New Delhi directed the confiscation of 16 pieces of `Bathur' Gold with a marking of `R.C.R.D.' thereon, under Section 167(8) of the Sea Customs Act, 1878, read with section 19 thereof, as made applicable by S. 23-A of the Foreign Exchange Regulation Act, 1947. A personal penalty of Rs.5000/- was also imposed on the petitioner.
(2) The allegations, on which the customs authorities took action against the petitioner, are that on 9th April, 1956, the customs officers of the Central Excise Collectorate, New Delhi, on a prior information, apprehended the petitioner when he was sitting at the shop of Shri Rattan Chand Saraf in Chandini Chowk, Delhi; that he had a bag lying close to him at the said shop; that he was asked by the customs officers to show the contents of the said bag and that on search it was found to contain 12 pieces of Bathur gold with a marking of `R.C.R.D.' on them. The petitioner was then brought to the Customs House, Delhi and 4 more bars of similar gold was recovered from him from his waistcoat.
The said 16 pieces of gold weighed 399 tolas, 9 mashas and 2 rattis. The petitioner is alleged to have told the customs officers that the gold in question was purchased by him from one Shri Mukand Lal Saraf of Amritsar. He is also stated to have informed them that in addition to the gold in question, he had purchased various toher quantities of gold from the said Shri Mukund Lal Saraf, which he sold through Shri Rattan Chand Saraf of Delhi. Show cause ntoices were issued to the petitioners, Shri Mukand Lal Saraf and Shri Rattan Chand Saraf on 18th April 1956. By the said ntoice the petitioner was asked to show cause why the gold should nto be confiscated as the same was believed to have been imported into India by land from a foreign territory without permit.
The ntoice to Shri Rattan Chand Saraf and Mukand Lal Saraf called upon them to show cause why penalty should nto be imposed on them under Section 7(C) of the Land Customs Act as evidence had been laid that each one of them had procured and permitted some quantity of gold, including the quantity of gold seized from the petitioner, to be kept knowing that it had been passed into India by land from a foreign country without a permit, under 5 of the Land Customs Act, 1924 and without valid permission of the Reserve Bank of India, as required under Section 3 (1) of the Foreign Exchange Regulation Act, 1947.
In reply to the show-cause ntoice, Shri Rattan Chand Saraf denied that he had any connection with the petitioner and Shri Mukand Lal Saraf stated that he never purchased or sold any gold from or to the petitioner. The petitioner, in reply to the show cause ntoice, reiterated his stand, disclosed earlier, that the gold in question had been purchased by him in a bona fide manner through Shri Mukand Lal Saraf, broker, in open market at Amritsar and that the marking `R,C,RD' was of a refiner's firm of Amritsar, who kept regular accounts of all business transacted by them. As evidenced by the order of the Collector of Central Excise and Land Customs dated 8th March 1957, the petitioner expressed desire to summon the records of the Telephone Department, Posts and Telegraph Department and of the Refinery of Rattan Chand Rikhyab Dass of Amritsar. He also wanted to summon the records of Dharm Kanta of the said firm, Rattan Chand Rikhyab Dass. The Collector of Central Excise and Land Customs declined this request of the petitioner on the ground that "Shri Sita Ram Agarwal was informed to make his own arrangements for the production of the evidence in his defense."
(3) It is pertinent to refer to some correspondence between the petitioner and the Collector of Central Excise and Land Customs pertaining to the petitioner's request to summon evidence. On 3rd July, 19, the petitioner, wrtoe to the Collector, Central Excise Collectorate, New Delhi, and in the first three paragraphs thereof gave the precise dates and particulars of each transaction entered into by him and the materials which would evidence the said transactions. In paragraph 5 he said - "In proof of my innocence, I would like to summon the following evidence and record and the same may be collected by your office to expedite the proceedings."
Then he proceeded to give the particulars of the records required from Delhi Telephone District, Amritsar Telephone Exchange, etc. Towards the end, the petitioner also made a request that the Telephone Office and Telegraph Office may be directed to preserve the records aforesaid, so that he may be able to summon the said records as and when required. There has been some objection on behalf of the respondents about the absence of precise particulars of the materials required by the petitioner.
It was also suggested on behalf of the respondents that the request was nto to summon any witnesses but only to direct the records to be preserved so that they may be summoned as and when required. This objection on behalf of the respondents is an attempt at hairsplitting, which cannto be countenanced. Where the allegation is of denial of natural justice, it is the substance of such requests which has to be seen.
Apart from that, I find that sufficient particulars have been given in the letter dated 3rd July, 1956, which also contains a request that the said materials may be collected by the customs department "to expedite the proceedings."
As I read the letter, it is a clear request to make those records available to the petitioner, and it is nto denied on behalf of the respondents that the authorities concerned had the power under the said Act to enforce the production of any witnesses and records. That again is nto the end of the matter. In reply to the aforesaid letter of the petitioner, the Collector of Central Excise and Land Customs did nto raise any of the objections, now suggested at the bar before me, but simply said. "As regards the records of the offices of the Delhi Telephone District, Central Telegraph Office and the firm whom you desire to produce in your defense, arrangements for their production may please be made by you independently."
The objection as to the nature of the request and the alleged ambiguity, therefore, clearly appears to be an after-thought. Again, by letter dated 29th September, 1956 the petitioner wrtoe to the Collector, Central Excise Collectorate, wherein it was inter alia, stated -
"(1) On receipt of these weights (referring to the weights of individual bars supplied by the Department), I instituted enquiries from the refinery of Messrs. Rattan Chand Rekhab Das and the following facts could be ascertained so far. On the basis of the said information, I give below the weight of each bar and the name of the person against each bar, as appearing in the record of the said refinery from whom the gold was refined and converted into bars."
(2) "It is, therefore, prayed that the customs department may have the said record inspected and I am sure that necessary information as to the persons who have gto the said remaining bars refined, would be available from the said record. If there is any difficulty in this matter, I may be permitted to have the record examined for the above mentioned purpose. This data would conclusively establish that the gold bars under reference were purchased from the local market."
(3) "I submit that it would nto be possible for me to produce the witnesses of the records as I have no authority to enforce their attendance or production as the case may be. In the interest of justice, the attendance of necessary witnesses and production of the documents, as has been listed by me or may be listed by me be enforced through your department."
This letter was replied to by the Superintendent (Preventive), New Delhi, on 24th October, 1956, and he said "As regards the witnesses and the records, which you want to produce in defense of your case, it is up to you to arrange the same. It is in these circumstances that the petitioner alleges complete violation of the demands of natural justice.
(4) The petitioner filed Civil Writ No. 246-D of 1957 (Punjab) Sita Ram Aggarwal v. Union of India, in the Punjab High Court praying for quashing of the order D/-8-3-1957. This petition was dismissed by Mehar Singh, J. (As he then was) on 7th February, 1962, on the ground that the petitioner had nto availed of the alternative remedy of appeal available to him. In the concluding part, the learned Judge observed: "In consequence, the petition fails and is dismissed with costs xxxxx but there is further direction that if there is any difficulty on the question of limitation in regard to the admission of the appeal of the petitioner because he has nto deposited the amount of the penalty, then he is now allowed to deposit the amount of the penalty and his appeal will then be heard by the appellate authority on merits."
In the decision of Mehar Singh J., there is some discussion about the nature of the request by the petitioner for summoning evidence, but final views were nto expressed thereon, because the learned Judge was inclined to dismiss the petition in view of the alternative remedy being available to the petitioner.
(5) As I have said earlier sufficient particulars had been given about the nature of the evidence required to be summoned and I think, it was a clear request to make those materials available. That apart, the customs authorities did nto decline to summon the materials on the ground of vagueness but on the ground that the petitioner must himself make his own arrangements for the same. If this view were to be upheld, it would be impossible for any person to effectively meet the charge against him I think, it is the duty of the customs authorities to assist an accused person in the production of materials and the satutte has conferred that power to that end. After the dismissal of the writ petition, the petitioner took recourse to the various remedies by way of appeal and revision and it is nto disputed on behalf of the respondents that in the grounds of appeal as well as of revision a grievance was made about the non-summoning of the evidence. buth the appeal and the revision were dismissed by the Central Board of Revenue and the Central Government respectively. This writ petition can be disposed of on the short ground of denial of nature justice.
The decision of the various authorities constituted under the said Act went against the petitioner on the ground that in view of the Section 178-A of the Sea Customs Act, the burden lay on the petitioner to prove that the gold was nto smuggled. He should have been, as I have indicated above, afforded the necessary opportunity to summon the materials and it is nto disputed that the materials asked for by him were relevant to the enquiry. I would like to observe that in all such matters a dedicated devtoion to rule of law is expected of the authorities exercising judicial or quasi-judicial powers. The demands and the claims of natural justice cannto be treated with scant respect. The circumstances of this show that there has been a clear violation of natural justice.
(6) In these circumstances, this petition must be allowed and the impugned orders quashed. The petitioner will have the costs of these proceedings.
CK/G.G.M. (7) Petition dismissed.