Calcutta High Court
M/S. Modern Agency & Anr vs The Chief Commissioner Of Customs & Ors on 28 August, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
OD-3
W.P. 409 of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
M/S. MODERN AGENCY & ANR.
Versus
THE CHIEF COMMISSIONER OF CUSTOMS & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 28th August, 2018.
Appearance:
Mr. Arijit Chakraborty, Adv.
Mr. Prasanta Bishal, Adv.
Mr. Tapan Bhanja, Adv.
...For the Petitioners
Mr. Somnath Ganguly, Adv.
Mrs. Sanjukta Gupta, Adv.
...For the Customs and Central Excise
Mr. Kaushik Dey, Adv.
...For Respondent No. 3
The Court: An order in original dated May 31, 2018 is under challenge in the present writ petition.
Although the order in original is appealable, nonetheless, the petitioners seek to maintain the writ petition on the ground of breach of the principles of natural justice.
Learned Advocate appearing for the petitioners submits that, the adjudicating authority did not grant a right of cross-examination of one of the prosecution witnesses although, a request for the same was made in writing. In support of his contention, he refers to a writing dated April 25, 2018 which contains a request to cross-examine two prosecution 2 witnesses. He draws the attention of the Court to the recording in the impugned order in original and submits that, the request for cross- examination was not dealt with in the impugned order. Consequently, the right of cross-examination being denied, he submits that, the proceedings stand vitiated by breach of the principles of natural justice. The impugned order should, therefore, be quashed.
Learned Advocate appearing for the Customs authorities submits that, the writ petition is a mechanism to delay the proceedings. He submits that, the petitioners requested for time in the adjudication proceedings on April 6, 2018, which was granted. The show-cause notice was issued on February 13, 2018. The petitioners are seeking to delay the disposal of such proceedings to the extent possible.
Directorate of Revenue Intelligence is represented. It appears from the record that, the Customs authorities issued a notice under Section 124 of the Customs Act, 1962 against the petitioners on February 13, 2018, alleging that, the petitioners are guilty of smuggling of cigarette of foreign origin into India.
The petitioners participated in such proceedings. Apparently, the prosecution was relying upon the statement of one Ravinder Kapoor in the proceedings. The petitioners by a writing dated April 25, 2018 wanted to cross-examine such person. The petitioners also wanted to cross- examine one Tapan Ghosh, who is one of the prosecution witnesses. 3
The request for cross-examination was, however, not considered by the adjudicating authority as appearing from the impugned order. The adjudicating authority does not deal with the request for cross- examination contained in the writing dated April 25, 2018. True, an adjournment was granted by the adjudicating authority on April 6, 2018. However, the same by itself does not allow an inference that the petitioners are employing dilatory tactics when the petitioners made a request for cross-examination of prosecution witnesses. In an adversarial litigation, where, the prosecution adduces a natural person as its witness, the principles of natural justice require that, such natural person is allowed to be cross-examined by the opponent, that is, the delinquent. In the facts of the present case, the petitioners having put in a request for cross-examination of two witnesses of the prosecution by its writing dated April 25, 2018 and the petitioners admittedly not being granted such opportunity, in my view, the impugned order stands vitiated by reason of breach of the principles of natural justice. The impugned order is, therefore, quashed. This order will not prevent the adjudicating authority to proceed afresh from the stage reached on April 25, 2018 or from such stage that it deemed appropriate. It is expected that, the adjudicating authority will keep the request allowing the petitioners to cross-examine the two witnesses noted in the writing dated April 25, 2018, in accordance with law.
W.P. No. 409 of 2018 is disposed of. No order as to costs. 4 All points raised by the parties are kept open.
(DEBANGSU BASAK, J.) TO