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TMI Blog1970 (3) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier in village Randhisar. The said two persons were arrested on the allegation that they had come from Pakistan and Mohammad had brought with him smuggled gold. Another person also named Mohammad, son of Gayi, was subsequently arrested in village Suresar on the ground that smuggled gold had been recovered at the instance of Mohammad, son of Hayat from a Kund, i.e. a small water reservoir belonging to Mohammad, son of Gayi. The police claimed to have recovered 692 tolas of gold in 69 bars bearing foreign markings. A camel alleged to have been used by the two persons for their travel and transport of the gold was also taken possession of by the police. The camel and the gold were later on handed over to the Customs officials of Bikaner an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative before the case was adjudicated so that a date could be fixed for the hearing of the case, if considered necessary. The appellant's name does not find a place in the concluding paragraph of this notice (although those of the other three appear there) to the effect that if no cause was shown against the action proposed to be taken within ten days from the date of the receipt of the memo or if the named persons "did not appear when the case was posted for hearing it would be decided ex parte on merits of the facts already on record". There can however be no doubt ..... and indeed there is no dispute ...... that the written notice was addressed to all the four persons whose names appeared at serial numbers 1 to 4 at the foot th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made while they were in police custody. Secondly, there was no material on record to connect him with the alleged smugglers or with the smuggled gold or with the act of smuggling and there was no basis for a reasonable belief that he was a person concerned in the importation of the gold. Yet another ground was taken that the maximum penalty which could be imposed under Section 167(8) of the Sea Customs Act was only Rs. 1,000/-. The appellant also alleged that he had submitted a show cause through his Counsel by a written reply, dated August 27, 1958, under a certificate of posting which had not been taken into consideration by the Collector of Central Excise. He claimed to be entitled to a reply thereto and to a personal hearing before d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der such material as was available before him to reach his conclusion. According to the learned Judge the Collector was not governed directly by the rules of evidence and in the circumstances of the case no exception could be taken to his having proceeded on the basis of the statements recorded. The learned Judges also felt himself unable to exercise any discretion in favour of the appellant for invoking the extraordinary jurisdiction of the Court in certiorari proceedings, particularly as the appellant had sought to support his case by a spurious document. He however relied on a judgment of a Division Bench of that Court to hold that the personal penalty imposed could not exceed Rs. 1,000/-. 6.Writ petitions had also been filed by Mohamma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 167(8) was not limited to the sum of Rs. 1,000/-. In the result the Division Bench accepted the appeal of the Union of India and restored the penalty imposed by the Collector. 7.Our attention was also drawn to a recent decision of this Court in A.K. Kripak v. Union of India - 1969 (2) SCC 340, where some of the rules of natural justice were formulated in Paragraph 20 of the judgment. One of these is the well known principle of audi alteram partem and it was argued that an ex parte hearing without notice violated this rule. In our opinion this rule can have no application to the facts of this case where the appellant was asked not only to send a written reply but to inform the Collector whether he wished to be heard in person or through a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 5, read with Section 7 of the Land Customs Act. In our view this is a matter of no moment as the order of the Collector passed on 9th August, 1959, clearly showed that the confiscation had been ordered under Section 167(8) of the Sea Customs Act, read with Section 19 of the Act as made applicable by Section 23A of the Foreign Exchange Regulation Act and the personal penalty was imposed under these provisions of law. 10.Lastly it was urged that the levy of personal penalty to the extent of Rs. 50,000/- on the facts of this case was a perverse order. It is difficult to appreciate the argument. If the gold smuggled weighed 692 tolas of which the value would not be less than rupees one lakh a penalty of Rs. 50,000/- was certai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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