Judgment

HEGDE, J.

( 1 ) THIS appeal by certificate arises from a writ petition filed by the appellant in the High Court of Calcutta.

( 2 ) THE appellant is a citizen of Nepal. He carries on business in Nepal His business consists entirely in exporting rice, dal and other products from Nepal to other countries. He entered into a contract with a firm in Cairo on 24/11/1968 to export 250 M. T. of split lentils (masur dal), the shipment whereof was to be completed within three months from the date of opening of the letter of credit. That letter of credit was duly opened. Thereafter the appellant obtained an export licence from the Government of Nepal for exporting masur dal in accordance with the agreement entered into by him with the Cairo firm. A copy of this licence was sent to the Collector of Customs, Calcutta and the Border Customs Posts at Nepalgani and at Birgani. The dal in question was sent to Calcutta either through Rupadiah from Nepalganj or through Raxaul from Birganj. The concerned invoices were verified and certified by the Nepal Customs Officers at Birgani and Nepalganj and by the Indian Customs Officers at Rupadiah and Raxaul. After the dal reached Calcutta and when it was about to be shipped, the appellant was served with a notice to show cause by the Assistant Collector of Customs as to why the entire consignment should not be confiscated and penal action taken against the appellant for having re-exported the dal that had been exported from India to Nepal, in contravention of the terms of the treaty entered into between India and Nepal in 1960 The appellant pleaded that the dal in question was not of Indian origin and further even if it is found to be a dal of Indian origin, by exporting the same, he had not contravened any of the terms of the trade and transit treaty entered into between India and Nepal in 1960.

( 3 ) THE adjudicating officer rejected the contention of the appellant and came to the conclusion that the dal in question was of indian origin. He further came to the conclusion that by exporting the same, the appellant contravened the terms of the treaty between India and Nepal. He accordingly ordered confiscation of the dal sought to be exported to Cairo. The dal seized was kept in the custody of Port Commissioners of Calcutta. The appellant challenged the legality of the order passed by the Customs authorities by means of a writ petition in the High Court of Calcutta. That writ petition was allowed by a single judge of the High Court. He came to the conclusion that on the material on record, the conclusion that the dal in question was of Indian origin is a wholly unsustainable conclusion. He also accepted the contention of the appellant that re-exporting of any dal exported from India to Nepal, does not amount to a contravention of the treaty referred to earlier. In the result he allowed the writ petition of the appellant and made the rule issued absolute. He quashed the order passed by the adjudicating officer by issuing a writ of certiorari and further issued a writ in the nature of mandamus directing the respondent to forthwith release 250 M. T. masur dal of the appellant which was the subject matter of the impugned order of confiscation.

( 4 ) AS against that order, the Customs authorities went up in appeal to the appellate bench of the Calcutta High Court.

( 5 ) THE appeal was heard by a bench consisting of Mitra and Sen JJ. Mitra J. differing from the conclusions reached by the learned single judge came to the conclusion that the adjudicating officers conclusion that the dal in question was of Indian origin is a sustainable conclusion and further by attempting to export that dal to Cairo, the appellant contravened the terms of the treaty entered into between Indian and Nepal. As a result of those conclusions he allowed the appeal and dismissed the writ petition. Sen J. , agreed with the conclusion reached by the learned single judge that the dal is not proved to be of Indian origin and that by