TMI Blog1999 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition that the petitioner was required to export various goods at F.O.B. value of Rs. 5680805/- of total 1105 M.T. and that the goods imported thereunder were to be utilised in accordance with the Notification No. 117/602/14/78-DBK, dated 9-6-1978 read with the Notification No. GSR, dated 5-4-1982. The licence also provided that in the event of failure to fulfil the export obligation within the prescribed time the licence holder shall, inter alia, pay the Customs Authority duty proportionate to the material or corresponding to the product not exported. The petitioner was further required to intimate the Licensing Authority the actual date of clearance of first consignment of imported goods within 7 days and send quarterly returns of all imports made, goods manufactured and goods exported. The petitioner had to execute a bond and guarantee agreement of the value of Rs. 3,31,000/- before the Licensing Authority. Under above terms and conditions of the licence the writ petitioner exported materials during the period from 8-8-1986 to 22-9-1986 and earned substantial amount of U.S. dollars which was duly deposited to the Reserve Bank of India. 3.The petitioner imported on 7-8-1986 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatsoever relating to or under the purported searches, seizures and detentions." 4.The D.R.I. authorities justified the action taken by them in the Affidavit-in-opposition sworn by Sri Kunja Behari Mallick contending, inter alia, that on secret information received and on enquiries made it appeared that the writ petitioner along with his brothers and others were wrongfully selling G.P. Sheets imported by them duty free under the "Duty Exemption Scheme" by various manipulations. Thereupon a watch was maintained on the said goods recently imported on or about 17th October, 1986 and 23rd October, 1986 by the writ petitioner and thereafter the said search and seizure was made in accordance with the provisions of law. Their further contention is that the records seized and in particular the Delivery Order and the statements made by Biresh Chandra Pal, the transport contractor, Abani Bhattacharjee, a sircar of the clearing agents, P.D. Tebriwal, purchaser of some of the said goods, Madan Gopal Mazodia, the brother and that of Kailash Mazodia clearly corroborate the said information which was received by the Customs Authorities. As regards the 68 coils of G.P. Sheets seized at the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating officer rejects such request of the respondents he will record his reasons in writing for .doing so." 6After having heard the learned counsel for both. the sides the learned trial Judge allowed the writ petition on a finding that the petitioner has fulfilled the entire export obligation of the licence and the said export had been accepted by the Customs Authorities and the Licensing Authority, that the goods in question were lawfully imported under valid licence acquired by the Customs Authorities for home consumption and as such were not liable to confiscation. The learned trial Judge further held that there was no basis to believe that the importation of the goods were either illegal or in violation of law, that the condition precedent for holding the belief for making the search and seizure was absent. The ld. trial Judge on the basis of the above findings allowed the writ application with the following directions :- "Search and seizure dated 8th November, 1986, 9th November, 1986 and 10th November, 1986 by the respondents are quashed and set aside. Consequently all proceedings, orders and notices including show-cause notice dated 21st November, 1986 are also qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision reported in 1994 (74) E.L.T. 197 Supreme Court where it has been held that the reasonable belief have to be viewed from the experienced eye of seizing Customs Officer the Court will not sit in appeal over belief so long as prima facie, there were grounds to justify the belief. It has been further pointed out that the ld. trial Judge has observed that except P.D. Tibrewal or other persons who made the deposition in the said investigation have subsequently retracted their statement in the criminal court and/or otherwise. The learned trial Judge failed to appreciate that the statement and admission made under Section 108 of Customs Act, even if retracted, is binding and can be relied upon and further that the refusal of permission to cross-examine the witnesses did not allow to vitiate the principle of natural justice in view of the decision reported in 1997 (89) E.L.T. Supreme Court page 646. He has further argued that the learned trial Judge has taken serious exception as the writ petitioner was not allowed to cross-examine the witnesses despite the order of the trial Judge and in doing that the learned trial Judge has failed to appreciate the order, of the appellate cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Adjudication Authorities refusing the right of the respondent to cross-examine the witnesses has been under challenge in the writ petition. The Division Bench by its order dated 28-4-1988 upheld the trial Judge's order of holding auction issued direction as under, "After meeting the costs, charges and expenses of the sale the Special Officers will keep the balance amount in a suitable fixed deposit account with a nationalised bank. The rights and claims of the parties in the goods as at present will shift to the sale proceeds. The appellants will be entitled to enforce order or orders, if any, passed in the pending adjudication proceedings, if ultimately sustained, against the sale proceeds." ****** ***. "We direct that the final order passed in the adjudication proceedings will not be communicated to the respondents except upon a fortnight's notice and this order will not prevent the respondents from taking - further or other proceedings in respect of the final adjudication order as they may be advised." 12.In view of the above order of this Bench and the facts appearing from the materials on record indicating the stage of the adjudication proceedings we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat "courts in India and even in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure, if, therefore, the view of the learned Single Judge of the Calcutta were to be accepted meaning thereby that if the search is shown to be illegal, anything seized during such illegal search will have to be returned to the person from whose premises the same was seized, it would tantamount to saying that evidence collected during illegal search must be excluded on that ground alone. This was in terms negatived by the Constitution Bench. It has been often held that the legality in the method, manner or initiation of search does not necessarily mean that anything seized during the search has to be returned. After all in the course of a search, things .or documents are required to be seized and such things and documents when seized may furnish evidence. Illegality of the search does not vitiate the evidence collected during such illegal search. The only requirement is that the court or the authority before which such material or evidence seized during the search shown to be illegal, is placed has to be cautious and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion hardened into reasonable belief and thereafter search and seizure followed. Documents and goods were seized on search and investigation was conducted by examining witnesses giving out incriminating evidence justifying search and seizure. It is true that the individual liberty has been sought to be protected by the courts against the abuse of power by the authorities executing a statutory obligations by means of (a) procedural restraints in the form of the ground rules for search and seizure, (b) statutory restraints provided in the Act and judicial restraints and (c) Judicial restraints evolved by the courts of law. In our opinion, such cloak of protection thrown around a suspect should not be pushed to the extreme verge so as to degenerate it into a taboo of disability in dealing with economic offences by an organised Section of the community. We are, therefore, unable to agree with the learned trial Judge that the search and seizure was not conducted without reasonable grounds to believe that the goods were being sold inside the country in violation of the terms of licence. 18.It appears from materials on record that the adjudication proceedings has advanced to a great ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order, dated 21-11-1988 which is set out in the memo of appeal in paragraph 14 at page 192 of the paper book volume (I). In our opinion, the learned trial Judge in exercising writ jurisdiction cannot sit upon the reasonings offered by the adjudicating officer particularly when such reasonings were given at the order of the Division Bench after having considered the relevant decisions on the point of entitlement of the writ petitioner to cross-examine the witnesses. In view of the discussions made above we hold that the Judgment and orders passed therein by the learned trial Judge are liable to be set aside and accordingly the same is hereby set aside. The writ petition is dismissed without any order as to costs. 21.[Concurrence per : S.B. Sinha, A.C.J.]. - In my opinion, the question as to the validity of search has lost its importance in view of the subsequent events. 22.As an adjudication proceedings have already been started, the same is required to be considered in its own merits. 23. Before us, arguments at great length have been advanced as regard the orders passed in the adjudication proceedings. Unfortunately, Division Bench of this Court has passed interim order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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