TMI Blog1971 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... To appreciate the dispute it will be necessary to refer to the facts in short which are set out as follows. 2.Acting on an information about smuggling of contraband gold Customs Officers of the Preventive and Intelligence Unit took out search orders from the appropriate authority and searched two contiguous premises being premises Nos. 81-B, Chittaranjan Avenue and 14 Feares Land, Calcutta on January 31, 1968. While flat No. 81-B Chittaranjan Avenue was in the nature of a residential flat the premises in 14, Feares Lane appears to be a store room. The room at 14, Feares Lane was found under double locks. The Preventive Officers found a cook present at flat No. 81-B, Chittaranjan Avenue and while they were proceeding with the search two persons Abdul Kader and I. A. M. Hamid appeared on the scene. Nothing in criminating was found on search at 81-B, Chittaranjan Avenue but a key bearing No. 2793967 was recovered from a steel cabinet. With the help of this key one of the locks at the store room at 14, Feares Lane bearing the identical number was opened. The other lock, however, could not be opened and as such the latch on the door was removed. On entry so secure the Preventive Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he key produced by him was a genuine key of the lock or not. The Collector though he refused to disclose the forensic test report had no objection to a representative of Messrs. Godrej Company Ltd. being examined as a defence witness. On the next date of bearing i.e., on June 20, 1969 the petitioner filed an application before the Collector of Customs with two prayers as follows : - "In the above circumstances I request (1) that a certified copy of the forensic test report regarding the key may be granted to my client on my client's cost and (2) that summons may be issued on Messrs. Godrej and Boyce Manufacturing Company (P) Ltd., Calcutta to send their agent to give evidence about the seized Godrej lock No. 948328 and its key. My client is prepared to bear the cost for the witnesses." 5.The first prayer was made on the ground that the forensic test report would be a material and necessary document. The second prayer was made on the ground that the evidence of a representative of Messrs. Godrej Company Limited would be indispensable in order to establish that the key produced by him was the genuine key of the lock seized and also to explain the reason why the said lock could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner and without fixing any date of further hearing disposed of the proceeding by an order of confiscation passed on September 27, 1969 and such order was communicated to the petitioner by a memo, dated October 13, 1969. Thus the adjudication proceeding was disposed of just a few days before this court had issued the interim order staying further proceedings. 10.In C. R. 8607(W) of 1969 the petitioner is disputing the validity of this confiscation order on two fold grounds. In the first place, it is claimed that such an order has been passed in a proceeding wherein the petitioner had been denied a reasonable opportunity to substantiate his defence by denial of his prayers made in his application dated June 20, 1969. Secondly it is claimed that in any event when the adjudication proceeding was stayed pending appeal before the Appellate Authority against the interlocutory order, the adjudicating authority could not have disposed of the matter ex parte after the disposal of the appeal without fixing a further date of hearing and without giving a further notice to the petitioner. 11.Both the Rules are being contested by the respondents and affidavits have been filed. Facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue finally. 14.The petitioner by his application dated the June 20, 1969 had prayed for two things. Firstly he had prayed for disclosure of a forensic test report which was directed in course of the adjudication proceeding when the petitioner had produced the key No. 948328. Importance of possession of this key to prove possession of the seized currency notes had not been disputed by the Collector. As a matter of fact, he had a suspicion that the key produced was not the real key in use but might have been manufactured later on. Therefore to ascertain the genuineness of this key and further to ascertain whether the key was in use or not he himself had directed a forensic test. Having directed such a forensic test it is not open to him to disown the relevancy or the importance of such a test report. Now the petitioner wanted to know the result of the test and therefore he asked for a copy of the report. The Collector did not refuse this prayer on any ground that the report is not relevant. On the other hand, the reason for the rejection of the prayer was that such report will be disclosed only if it be used against the petitioner and not otherwise. In my opinion, the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in proceedings under the Act including adjudication proceedings. Only limitation contemplated by section 128(1) is that the persons to be summoned must be such as the authority issuing the summons considers necessary. It would be improper construction of this provision to think that the witness necessary for the prosecution alone could be summoned and not the witness necessary for the defence. Such a construction would be found amentally inconsistent with quasi-judicial nature of adjudication the object whereof is to find out the truth or otherwise of the allegations on which a charge has been levelled. This being the position. I must accept contention of Mr. Burman and hold that the Collector on the face of the records misguided himself in thinking that a summons under section 108(1) may not be issued for enforcement of attendance of a witness cited by the defence. It is obvious, therefore, the refusal of these two prayers had materially prejudiced the petitioner in the adjudication proceeding and the order is erroneous on the face of the records. 16.On the conclusions as above C.R. 7271(W) of 1969 must succeed and the impugned order of the Collector of Customs refusing the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
