TMI Blog1962 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ough Custom's barriers, and that on this occasion 66 watches, out of which 50 were Titoni watches, 14 Steel Favre-leuba watches, 1 Favre-leuba rolled-gold watch and one Roamer Rolled gold watch were handed to him by Almeida for safe transport out of the Customs, and on the previous day a consignment of 32 watches were delivered to him for a similar purpose by Menino Vaz. On the strength of the statement taken from Srinivasan, the Customs Officials would appear to have searched No. 5 Tank Street, Royapuram, Madras, where Almeida and Vaz were tenants, and in that search found a cloth bag hanging in a corner of the lavatory attached to the house containing 31 Titoni Watches and one Favre-leuba watch and Indian currency notes of the Value of Rs. 5,232. Almeida, who was in the house, disclaimed ownership of the bag with its contents; but, in his statement given on January, 17, 1959, admitted that he and Menino Vaz had brought watches during November and December, 1958 from Singapore and utilised Srinivasan for transporting the smuggled goods out of the Customs free of duty, and that Srinivasan was paid commission for this service. Almeida was supposed to have also admitted that the 66 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, Mr. Vaz, learned Counsel for the Petitioners made three points (1) that the impugned order is vitiated because it was not based on any proper enquiry or legal evidence, and, in that sense, the order violated the principles of natural justice; (2) on the same facts, the petitioners were proceeded departmentally and also prosecuted in a criminal court, and this procedure was improper because (a) it led to a conflict of findings, and (b) it involved the prosecutor and the Judge being one and the same person namely, the Customs Collector; and (3) that even granting the facts to be true, inasmuch as the 32 watches were seized outside the Customs barrier, the petitioners could not properly be found to have been concerned in the importation of the contraband goods. It is convenient to dispose of the last two points first. 4.It is true that the petitioners were prosecuted for an offence under Section 5 of Imports and Exports (Control) Act, 1947 and also proceeded against departmentally under Section 167(8) of the Sea Customs Act, on the basis of the same facts. It is, further true that in the criminal court the petitioners were acquitted whereas they have been found responsible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than Section 167(8) of the Sea Customs Act. From another angle, the offence under Section 167(8) may appear to be a wider scope. It may be possible that, on some points, there may be common ground between the two sections. But it is plain that the two provisions provide for offences of different nature with different penalties, though the same facts might constitute on occasions an offence under both the provisions. The jurisdictions to proceed for the offences are also different, one a criminal prosecution in a court of law, and the other a proceeding before the departmental authorities. Section 5 of Imports and Exports (Control) Act itself seems to visualise two parallel proceedings on the same facts, one under the Sea Customs Act, and the other under Imports and Exports (Control) Act. That is the indication of the words, "without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act," in Section 5. I do not, therefore, think that the contention, that the two proceedings should not be prosecuted in parallel fashion because it may lead to a conflict of findings, is well founded. For identical reasons, as I think the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned in illegal importation. Whether a person is concerned in illegal importation or not depends on the fact of his importing or arranging for the importation against prohibition. Only he is proved to have done that, its effect is not nullified or wiped out merely because he has successfully passed off the goods across the Customs frontier and the same were seized off the Customs frontiers. I can find no justification for the argument, either in the language of any of the paragraphs in clause (8) of Section 167 or in Section 178 of the Sea Customs Act. The word 'concerned' means and implies both the cases of a person actually importing or arranging therefor. As this court observed in Devichand and Co. v. Collector Central Excise. "To bring the petitioners within the terms of Item 8 it is necessary to establish either that they actually imported the gold or were concerned in the import of gold. That is to say, it must be shown that they had arranged for the import of the gold or abetted the import of the gold or received it immediately after the import, the receipt being the final step in the process of importation." As the learned Judge pointed out in that case, they must hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were not given an oral enquiry. Their grievance is that the Collector made no effort, as seen from his order, to apply his mind at all to the reply of Almeida and that he had, in order formally, to satisfy the law followed the procedure of issuing a show cause notice, calling for a reply and then making the order without any serious consideration of the points made out in reply. It is difficult to say that there is no force in the contention so urged by the petitioners. 8.There can be no doubt, that an enquiry into the alleged offence under clause (8) of Section 167 of the Sea Customs Act is of a quasi-judicial nature. When the only material before the Customs Collector consists of statements some of which have been retracted and allegation made in reply to the show cause notice is that one or the other of the statements has been extorted or does not represent the truth, having regard to the nature of the enquiry and its serious implications, he must make a full and honest attempt to go into the allegations, examine the same and satisfy his mind for given reasons why these allegations were not well-founded. In this case, the order of the Customs Collector discloses a total fail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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