TMI Blog1965 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... orities from a source. Dharam Chand Jain carried this large number of gold bars round his waist tied in dhoti. Four hundred and twelve tolas was a heavy weight. Apart from this large amount of gold and the large number of bars and their being all carried round the waist, an unusual place, there were other remarkable features attending this seizure of gold. This gold was packed with or wrapped up with printed census papers of East Pakistan. The fineness of the gold 999.10 suggests that this gold was imported foreign gold because normally this fineness is not achieved in India. The seizure was made at Kaliaganj during the transhipment or change that the said Dharam Chand Jain was making in the journey. The seizure was actually made on the 13th November, 1956 between the hours 15.55 and 20.30 hours. The whole of the gold was recovered from the person of Dharam Chand Jain and from his waist, and was worth about ₹ 50,000. 2-A. The defence of the appellant was that, the gold was not smuggled or imported foreign gold, that this gold bar was made out from old ornaments purchased from Jewellers and thereafter melted at the shop of the appellant in the moulds of the appellant. Ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23-A of Foreign Exchange Regulation and Section 9 of the Land Customs Act, 1924. 5. This show cause notice gave a fair account of the evidence on which the charge was based slating, namely, (1) that the seizure was made on the basis of a source information lodged with the seizing police officer, a copy of which was enclosed; (2) the search list was prepared by the seizing police officer showing the recovery of the gold bars from fhe person of Dharam Chand Jain wrapped up with printed census papers of East Pakistan and the copy of the search list was also enclosed; (3) Dharam Chand Jain's statement that he was proceeding from Katihar to Calcutta, but on search of his person if was found that Dharam Chand Jain had no money with him for meeting the expenses of air journey to Calcutta; (4) the appellant's case that the gold was obtained by the appellant after melting and moulding old ornaments purchased by the appellant in the ordinary course of business was not supported by any reliable evidence and as long as six months after the date of seizure, the appellant submitted certain books of accounts and purchase memos which on investigation showed that none of the alleged sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been denied to the appellant. The order recorded on that date, the 3rd December, 1958 showed that the appellant came ready and prepared to take that step. 8. The Collector had no other option but to carry on as best as he could. On the 17th December, 1958 he enclosed a statement from Mohendra Narayan Ghosh and asked for further submission of the appellant in respect of that evidence. This Mohendra Narayan Ghosh was the printer of the receipt form of the appellant which he was supposed to have given to the jewellers from whom he got the broken ornaments for melting. On the 7th January, 1959 the appellant submitted his explanation and comment on the statement of Mohendra Narayan Ghosh. Then on the 10th January, 1959 the Collector of Land Customs offered inspection of the account books of the appellant as well as the records of the Yogomaya Press and asked for further submission of the appellant on that point. Thereafter, on the 30th January, 1959 the appellant through his lawyer wrote to the Collector stating that he had no jurisdiction to determine the liability until and unless it was proved that the samples drawn by the Superintendent were from the seized gold. 9. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not seized under the Sea Customs Act but under the Criminal Procedure Code. In support of his contention he draws attention to the heading of the statement of Dharam Chand Jain taken on the day of the seizure i.e., 13-11-1956. Apparently, that heading was on a printed form and the heading is as follows : Copy of the statement of Shri Dharam Chand Jain s/o Late Asharam Jain of Raiganj recorded under Section 161, Cr. P. C., in connection with seizure of 412 tolas one anna 4 ratis of gold on 18-11-56 under Section 550 Cr. P. C. On that slender basis of the heading recorded in Dharam Chand Jain's statement Mr. Bhabra has built up his argument, that the gold in this case was not seized under the Sea Customs Act, and therefore, the onus under Section 178-A of the Sea Customs Act, should not have been shifted by the learned Judge to the appellant. 12. The apparent glamour of this point as a piece of technicality sheds much of its lustre by reason of the fact that the adjudication of the Collector of Customs which the appellant is challenging in this proceeding did not at all apply Section 178-A of the Sea Customs Act. What the Collector of Customs rightly did was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an investigation under Chapter XIV of the Criminal Procedure Code dealing with information to the police may examine orally any person supposed to he acquainted with the facts and circumstances of the case. Such person is bound to answer all questions relating to such case put to him by such officer, except of course the questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. This is purely a provision of making a record of statement of a person. Section 56 of the Cr. P. C. similarly deals with the procedure when the police officer deputes a subordinate to arrest without warrant. It is the power to arrest without warrant that is provided there. Then Section 550. Cr. P. C. deals with the powers to police to seize property suspected to be stolen. It provides that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence . Neither Section 161, Cr. P. C., nor Section 56, Cr P. C. nor Section 550, Cr. P. C. proves the basic assumption of Mr. Bhabra that the proceedings were not under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on search of the person of your employee Shri Dharam Chand Jain, son of late Askaran Jain at Kaliaganj, District West Dinajpore on 13-11-56 by the Sub-Inspector of Police. District Enforcement Branch, Kaliaganj under the powers vested in him as Land Customs Officer by virtue of the notification No. 190-Cum dated 10-12-55 issued by the Ministry of Finance, Revenue Division, Government of India. Therefore, that police officer who was seizing the goods and using the thana form was not acting under the Indian Penal Code so much or under the Criminal Procedure Code, but in his capacity as Land Customs Officer under Section 3 of the Land Customs Act read with the Notification. Reference may in this connection be made to the decision of the Supreme Court in Hukma v. State of Rajasthan, . 16. Mr. Bhabra, learned Counsel for the appellant relied on the Supreme Court decision in Gian Chand v. State of Punjab, . In that decision the Supreme Court discussed this question and drew the distinction between seizure under the Act and a seizure under provisions of other laws. There the goods were delivered to the Customs authorities by the Magistrate under Section 180, and therefore, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of substitution of the gold. The appellant's case before the Collector of Land Customs was that the seized gold might have been substituted at some period between 13-11-56 and 18-7-58 when ten samples were drawn for testing. We have carefully analysed the records and the decision of the Collector of Land Customs. We are satisfied that there is no substance whatever in this charge of substitution. It was really an after-thought of the appellant. The facts are that all these 41 pieces of gold bars were seized on 13-11-56 from the possession and person of Dharam Chand Jain. After seizure a seizure list was prepared and the police officer scaled the gold on that very day. Subsequently, an escort was arranged by him and on 16-11-56 with the seals intact the entire gold was deposited into the Raiganj Sub-Treasury. It shows that between the date of recovery and deposit to the Sub-treasury, that is between 13-11-56 and 15-11-65 there was no room for substitution. The next period is from 16-11-56 to the date of taking over gold by Sri Das when it was lying with the Sub-treasury at Raiganj with the police seals intact. On that date, the 14th May, 1956, at the time of taking over the gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn from the seized gold. For the first time doubt was raised about the identity of the gold pieces only on the 21st July, 1958, in a letter addressed to the Collector of Land Customs by the appellant. The Collector of Customs was right in holding from the records that that letter misstated the facts for the records clearly show that the identity of the gold must have been finally accepted by the appellant or else there was no reason why the appellant or his lawyer should have proceeded with the selection of ten samples, witnessed the drawal of samples from these pieces by the Bullion Registrar and also attested the inventory that was later prepared and of which a copy was taken by the lawyer himself. What is most curious is that even in that letter dated 21st July, 1958, there was no definite or firm denial of the identity of the gold pieces. The appellant only wanted an enquiry to be made as to when and why the seal of the bag containing the gold was broken in his absence or in the absence of his employee Dharam Chand Jain. 20. Here a word must be said about the seals. It appears that immediately after the seizure, the gold pieces were wrapped up and sealed by the police o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is not the relief that can be canvassed under Article 226 of the Constitution or which is even sought in this writ What is worse, such a relief by way of damages for substitution or conversion of the appellant's goods certainly has become time barred under limitation. 23. In any event, we are however, satisfied on the facts that there has been no substitution at all. 24. Finally, Mr. Bhabra for the appellant contends that the adjudication in this case has violated the principles of natural justice. The way he formulates his charge of violation of natural justice may be set out briefly. In the first place, he argues that Abalakants Bhattacharjee, Sub-Inspector, District Enforcement Branch was not produced for cross-examination because he was the person who should have been called as he seized the gold and then lodged it at the Raigunj Sub-treasury. It is also his complaint that the police officer who brought the gold from Raigunj to Calcutta has also not been produced for cross-examination. Then, the complaint is that Mr. P.N. Sen, Superintendent of Land Customs Prosecution and Intelligence Branch, who was the person before whom samples were to be taken and when seals w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whereas from the statement of Mohendra Narayan Ghosh these purchase receipts were not even printed till 17-8-1956. That threw great doubt on the genuineness of these purchase receipts. But then there was no violation of any principle of natural justice because the Collector of Land Customs sent the statement of Mohendra Narayan Ghosh to the appellant with his forwarding letter of the 17/18th December, 1958 addressed to the appellant stating Your further submission, if any, in respect of the above evidence, may be made to the undersigned within a fortnight of the date hereof, failing which the case will be decided on the evidence on record without any further reference to you. So, here the appellant had the full statement of Mohendra Narayan Ghosh, the proprietor of the Yogmaya Press which incidentally was not an evidence on oath. Here also complete and full opportunity was given to the appellant to comment on this evidence . The fantastic, comment made on this evidence by the appellant was that Mohendra Narayan Ghosh was not a sufficiently literate person and that the appellant had commenced his business on 28-7-1956 and within a few days he had received the printed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. Natural justice certainly includes that any statement of a person before it is accepted against somebody else, that somebody else should have an opportunity of meeting it whether it (sic), by way of interrogation or by way of comment does not matter So long as the party charged has a fair and reasonable opportunity to see. comment am criticise the evidence, statement or record on which the charge is being made against him the demands and the test of natural justice are satisfied. Cross-examination in that sense is not the technical cross-examination in a Court of law in the witness-box. 29. The judicial climate on this point is thickly clouded with many decisions. The resuit is that the danger of confusion has become real and natural justice is on the misleading road of sentimental potentialities. Many long arguments and citations were made to us from the Bar. We shall notice only a few one of deference to these arguments. 30. Mr. Bhabra contends that formal cross-examination is a part of natural justice. In support of that proposition he relies first on the case of Union of India v. T.R. Varma, . To begin with that case was a case of a departmental enquiry on the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions arc not Courts and that therefore, they are not hound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. they can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and eircumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts. This gives the counter-foil to Mr. Bhabra's argument when he tried to rely on the observations in Verma's case , quoted above which incidentally has also been quoted by Venkatarama Aiyar, J in . In the passage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal must fail. The circumstances against the appellant are eloquent These circumstances are : (1) Fortyone bars of gold, a large quantity, weighing more than five seers and of the value of more than ₹ 50,000; (2) they were in bars with special mark as '999' which are not to be obtained in India according to the expert opinion; (3) that they were found in the waist of the person Dharam Chand Jain wrapped in Pakistan census papers; (4) that Dharam Chand Jain was taking a devious route from Katihar to Raiganj, from Raiganj to Kaliaganj, from Kaliaganj to Balurghat and from Balurghal to Calcutta and yet he had not the money for the air ticket. With all that gold he was travelling by bus and train and in a manner not consistent with a bona fide traveller carrying legitimate gold. The Government's comment is that he was touching the various points on the frontier with a view to make contacts for disposing of such gold, or else there was no point in pursuing such a preposterous route; (5) the actual case made by the appellant completely proves the case of the Government. The whole story that the appellant was sending the gold to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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