TMI Blog1987 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... purchases to Rotterdam, at No. 4, Netaji Subhash Dock. He met Mr. K.K. Bhattacharjee, Sales Assistant of the petitioner Firm and stated that he had purchased various papier-mache goods and Tourist purchases from one M/s. Dona : Co., Srinagar. In that connection he also handed over to the said Officer, a covering letter authorising the petitioner No. 1 to forward the consignment, the purchase invoice of M/s. Dona Co., Srinagar and Enactment Certificate issued by the Grindlays Bank, Srinagar and one Rubber Stamp of Dona Co., Srinagar (for Certificate of country of origin). 4. The said Shri K.K. Bhattacharjee and other Officers of the petitioner No. 1 duly inspected all the aforesaid documents and also the Pass Port, which was produced for checking and recording the number etc. 5. The documents in respect of the consignments were thereafter placed in the Customs Office on 18th August, 1986. The Customs officials after proper checking passed the shipping bill on the same day. The petitioner No. 1 received the consignment of 38 packages from Mr. J. Sala packed in cane baskets wrapped with gunny sheets at their godown on 18th August, 1986 along with delivery challan. 6. On 20t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior personnel of the petitioner No. 1, namely, Shri K.K. Bhattacharjee and Shri J. Thakur were arrested and the licence of the petitioner No. 1 was suspended pending full enquiry into the matter. 12. The petitioners also filed an affidavit-in-reply controverting the material averments contained in the affidavit-in-opposition. 13. Mr. Dipankar Ghosh, the Learned Counsel, representing the petitioners, questioned the impugned action of suspending the licence of the petitioner No. 1 by the Customs authorities on two different grounds. His first contention was that the impugned order (Annexure 'A') was not in consonance with Regulation 21 of 1984 and secondly, that clause (2) of Regulation 21 under which the order of suspension was made was ultra vires the Constitution. 14. These contentions of Mr. Dipankar Ghosh were seriously controverted by Mr. Jatin Ghosh, the learned Counsel representing the respondents. According to Mr. Jatin Ghosh, the impugned action is quite in accordance with Regulation 21 of 1984 and that Regulation 21(2) is not ultra vires the Constitution as alleged. 15. Coming now to the rival contentions of the parties, it may be considered at the outset whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents as the consignment as "tourist purchases"; Whereas upon preliminary enquiries it appears that M/s. Jeena Co., are prima facie involved in the attempted export of the said narcotics in as much as they appear to have inter-alia committed the following acts of commission and omission :- (a) M/s. Jeena Co. were not in possession of any letter of authorisation issued by the exporter as required under Clause (a) of Regulation 14 of the Custom House Agents Licensing Regulations, 1984. (b) M/s. Jeena Co., had not verified the passport of the exporter before handling the goods on his behalf. Further, no attempts were made to verify the address of the exporter. The address of the exporter in the Shipping Bill was declared as C/o Grand Hotel, Calcutta; on enquiries, however, it appears that the exporter never stayed at Grand Hotel during the relevant period. (c) Mr. K.K. Bhattacharjee, Senior Cargo Executive of M/s. Jeena Co. appears to have handled the consignment and had got, the Country of origin certificate prepared in his office and got it signed by one Mr. Tapash Kr. Chakraborty who is a Transport contractor and handles cargo for M/s. Jeena Co. (d) Durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that such shipping bill, containing all the relevant particulars about the goods, is required to be signed by the exporter. Mr. Ghosh contended that a shipping bill may, accordingly, be very well considered as the necessary authorision as required by Regulation 14(a) and that in the instant case the shipping bill so signed by the exporter, was produced before the Customs authorities by the petitioner No. I for checking etc. 19. In my judgment, this contention of Mr. Ghosh is not without substance. As a matter of fact, no specific form for authorisation under Regulation 14(a) has been prescribed and there is also nothing dependable to indicate that any such authorisation by Mr. J. Sala to the petitioner No. 1 was ever requisitioned by the Assistant Collector of Customs and on such requisition the petitioner No. 1 failed to produce it. Thus, it cannot prima-facie be said that the petitioner No. 1 M/s. Jeena Co. was not in possession of any letter of authorisation issued by the exporters as required under Clause (a) of Regulation 14. 20. Regarding the grounds (b), (c) and (d), it was contended by Mr. Ghosh that no such Regulations are there calling upon a Customs House Agent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil consequences, namely, total suspension of the business of the Customs House Agent till a proper enquiry is started and concluded under Regulation 23, for which again no time limit has been prescribed. Significantly, there is no provision for appeal or review by the Customs House Agent against the action so taken under Sub-Regulation (2). Thus, before exercising the extraordinary power under Sub-Regulation (2) of Regulation 21, the Collector must be fully satisfied that the case is an 'appropriate case' and that 'immediate action is necessary". 24. It was contended by Mr. Jatin Ghosh' that since the Collector of Customs, who has been authorised to take action under Sub-Regulation (2), is a very responsible and a high ranking officer, there is no possibility of such power being misused or being used arbitrarily. In reply to this contention of Mr. Ghosh, reference may be made to one of the latest decisions of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 = 1986 Lab.I.C. 1312. In paragraph 99 of the said decision the Supreme Court under similar circumstances observed as follows:- "It was urged that the Board of Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out". In support of the said decision the Supreme Court referred to one of its earlier decisions in Commissioner of Police v. Gordhan Das Bhanji, AIR 1952 SC 16 where it was observed that: "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to by Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Similarly in Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India, A.I.R. 1976 SC 1785 (at page 1789) the Supreme Court observed that, "It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order if makes........... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put its past record of long 86 years to serious test, but that does not justify immediate suspension of the licence in the absence of anything to show that without such immediate action very serious consequences would have followed. 31. Serious consequences have, however, followed in this case but that is on account of the hasty and arbitrary order passed by the Collector of Customs, since the effect of such order has been the total suspension of the business of the petitioner No.1 since August 26, 1986 and the enquiry under Regulation 23 is yet to commence. 32. Now, the impugned order, apart from its not being in consonance with Regulation 21(2) of the Regulations of 1984, also suffers from non-compliance with the audil alteram partem rule though it has entailed grave and serious civil consequences. It is true that Regulation 21(2) is silent on the point, but in the circumstances of the case there should have been observance of the rule since there is nothing to show that in view of any extreme urgency of the matter such observance would have frustrated the entire cause. Mr. Dipankar Ghosh in this connection referred me to the decision of the Supreme Court in Swadeshi Cotton M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alteram partem rule and that being so, it is liable to be struck down. 34. Mr. Dipankar Ghosh, the learned Counsel for the petitioners also challenged the constitutional vires of Regulation 21(2) on the following grounds :- (i) that the Regulation confers unguided, uncontrolled and uncanalised discretionary power; (ii) that there is no time limit regarding duration of the suspension and Regulation 23 also does not provide when, in case of a contemplated enquiry, the said enquiry should be started; (iii) that there is no check against abuse or arbitrary use of the power in the sense that there is no provision of appeal or review against any order passed under the regulations and (iv) that the Regulation does not specifically provide for recording of reasons for passing the order of suspension. 35. Prima-facie these are all weighty grounds and strike at the reasonableness of Regulation 21(2) exposing prima-facie its constitutional infirmity. As observed by the Supreme Court in Air India v. Nargesh Neerza, A.I.R. 1981 (S.C.) 1829 (at page 1857) that :"It is true that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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