TMI Blog1976 (7) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner sent Ext. P1 reply stating that he had no knowledge whatsover of the alleged offence, that he had instructed his driver not to use the car for any unlawful purpose, that the trip sheet showed that thecar had on 14-11-1973 gone to Irinjalakuda and returned to Cochin and again to Trichur and returned to Cochin at about 1 p.m. on the same day (both places being away from Kodungallur from where the smuggled goods are alleged to have been carried), and that his car was therefore not liable to be confiscated under Section 115. On 20-8-1974 the petitioner was asked to furnish the names of witnesses he wished to examine at the time of personal hearing. Ext. P7 dated 6th September, 1975 is the reply sent by the petitioner's advocate stating that Shri P.C. Abraham (petitioner himself) and Shri M. Abdul Kader were the two persons the petitioner wished to examine. Ext. P3 is a letter informing the petitioner's advocate that the hearing would take place on 1-10-1974 and asking him to be present with the witnesses. Apparently the hearing did not take place on that day. Ext. P4, dated 30-9-1974 is a letter sent by the petitioner's advocate stating : "Before the examination of defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had only to be argued. On account of personal inconvenience to appear before the respondent at 11 a.m. on 30-9-1975 as required in Ext. P5 and as there were several parties to be heard in the matter I requested the respondent over the phone to take up the personal hearing in respect of my clients only in the afternoon and to give me time till then. The respondent acceded to my request. ....... If only the respondent had intimated m or my clients that the persons whose statements had been recorded behind the back of my clients would be produced for examination or tendered for cross-examination and fixed a time for that I would have certainly appeared promptly at the time fixed by the respondent for that purpose." 3.Ext. P6 order whereby the petitioner's car has been confiscated is impugned for the reason that the respondent did not give the petitioner a proper opportunity to show why his car was not liable to be confiscated. It is contended that the petitioner should have been given a due opportunity to cross-examine the persons whose statements were relied on by the officer to the detriment of the petitioner, and that the failure on the part of the respondent to produce these p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision. 4.I shall now refer to the relevant sections of the Act. Sec. 115(2) says : "Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules : Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. x"xxx Sub-section (2) of Section 115 thus makes it clear that unless the owner is in a position to show that the unlawful employment of the car was without the knowledge or connivance of himself or his agent or his driver and that each of them had taken all necessary precautions against such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n every case under this Chapter in which anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged, - without limit, by a Collector of Customs or a Deputy(a) Collector of Customs; x"xxx 6.Section 124 embodies the principles of natural justice relating to audi alteram partem. The Section reads as follows : "No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - is given a notice in writing informing him of the grounds on(a) which it is proposed to confiscate the goods or to impose a penalty; is given an opportunity of making a representation in(b) writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and is given a reasonable opportunity of being heard in the(c) matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral." The owner of the vehicle has to be given notice of the grounds on which his property is proposed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Loreburn in Board of Education v. Rice [1911 A.C. 179 at 182]. His Lordship observed : "In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial." 9.The twin aspects of natural justice, namely audi alteram partem ("hear both sides") and nemo judex in causa sua potest ("no one can be a judge in his own cause") ensure that no person shall be condemned without giving him an effective opportunity of being heard by a Tribunal that is free from bias. In other words, he should not only have an opportunity to meet the charges against him and state his own case, but the Tribunal hearing him must also act in good faith. A reasonable or fair opportunity of being heard in essence means an opportunity of being heard by an unbiased Tribunal. This in short is the quintessence of the rules of natural justice. These principles apply not only to courts, but in substance to administrative Tribunals as well; for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly right in deciding a charge of infamous conduct against a professional man." 11.The procedure of a Tribunal is generally much less formal than that of a court. In T.A. Miller Ltd. v. Minister of Housing and Local Government and Another [1968 (1) W.L.R. 992] Lord Danning M.R. observes : "Hearsay is clearly admissible before a Tribunal. No doubt in admitting it, the Tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the Tribunal must give the other side a fair opportunity of commenting on it and of contradicting it:" 12.Principles of natural justice are not embodied rules. Their aim- "....is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it." [A.K. Kraipak v. Union of India - AIR 1970 S.C. 150] Principles of natural justice cannot be applied uniformly. They vary from case to case depending upon the facts of each case and the constitution of each Tribunal. As stated by Tucker, L.J., in Russell v. Duke of Norfolk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 80, paras 24 to 32]; AIR 1968 Cal. 174; AIR 1970 Cal. 154]". 15.Counsel for the petitioner submits that the principle stated by the Supreme Court in regard to cross-examination in proceedings under the Sea Customs Act, 1878, does not necessarily apply to proceedings under the Customs Act, 1962, for, according to him, the earlier Act did not contain any provision analogous to Section 124 of the new Act. He contends that the petitioner's case which is governed by the provisions of the new Act cannot be decided on the basis of the above-mentioned observation of the Supreme Court. 16.Petitioner's Counsel Shri Rama Shenoi, with his usual thoroughness and learning, referred me to a large number of authorities in support of his contention that cross-examination is an essential requirement of an opportunity of being heard, but none of them directly answers the point at issue. He drew my attention to the following statement of Professor Wade : "The right to call and to cross-examine witnesses is therefore, as a general rule, part of the procedure required by natural justice." (Administrative Law, 2nd Edition, page 194). The learned author says that there is a right to cross-exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial or administrative, except upon a hearing wherein each party shall have opportunity to know of the claims of his opponent, to hear the evidence introduced against him, to cross-examine witnesses, to introduce evidence in his own behalf, and to make argument. This is a requirement of the due process clause of the Fifth Amendment of the Constitution." In the United States the requirements of audi alteram partem are embodied in Section 7(c) of the Administrative Procedure Act, 1946 in the following words : "Every party shall have the right to present his case or defence by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts." Counsel for the petitioner referred me to a more recent decision of the United States Supreme Court in William L. Greene v. Neil M. McElroy (360 US 474, 3 L ed. 2d, 1377 at 1397). The Court states : "We decide only that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not neatly cut and dried or nicely weighed and measured. What is a fair opportunity must of necessity depend upon the facts and circumstances of each case, the constitution of each Tribunal and the provisions of law applicable to it. The requirements of natural justice thus vary from case to case and they are not rigid or fixed rules. None of these decisions therefore can be of direct help in answering what is a reasonable opportunity in terms of Section 124(c) with regard to the facts and circumstances of the present case. 19.The burden of proof in proceedings before the Customs authorities is discussed in Collector of Customs v. D. Bhoormull [1983 (13) E.L.T. 1546 (S.C.) = AIR 1974 S.C. 859] : "Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that he himself was not present, despite the inability of his advocate to be present. Whatever be the reasons that kept the petitioner and his counsel away from the enquiry, the petitioner could have, if he so desired, challenged the order of the Collector in appeal where he could have pressed the many points argued before me on the nature of the evidence relied on by the department and the inadequacy of such evidence. But he did not file any appeal. These questions cannot now be examined in the present proceedings. It cannot be stated that there was no evidence for the Collector to form his conclusions. He had before him the statements of certain persons and other facts collected by his officers. In the absence of any effective answer by the petitioner, the Collector was justified in forming his conclusions on the basis of the available evidence. As stated earlier, the requirements of natural justice vary from case to case and therefore the observations which are relevant in certain circumstances need not necessarily be applicable to other circumstances. In the light of the facts and circumstances of this case, it cannot be stated that the rules of natural justice, embodied in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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