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HIGH COURT OF PATNA
A. B. N. Sinha & B. D. Singh, JJ.
GOPI KISHAN - Petitioner
VERSUS
UNION OF INDIA & ORS. – Respondents
C. W. J. C. No. 424 of 1967
Decided On : 31st March, 1970
SEA CUSTOMS ACT, 1878 - SECTION 178-A - SEIZURE OF GOODS - REASONABLE BELIEF - BURDEN OF PROOF - APPEAL - LIMITATION - CONDONATION OF DELAY - REVISION - SPEAKING ORDER - WRIT OF MANDAMUS - CONFISCATION OF GOLD AND GOLD ORNAMENTS - RELEASE OF CONFISCATED GOODS.
Fact of the Case:
The petitioner, a goldsmith, challenged the seizure of gold and gold ornaments by the Collector of Central Excise under Section 167(8) of the Sea Customs Act, 1878, and the subsequent confiscation of a portion of the seized goods. The petitioner contended that the seizure was illegal as the seizing officer did not have a reasonable belief that the goods were smuggled, that the Collector erred in not accepting the show cause filed by the petitioner, that the appellate authority erred in holding the appeal time-barred, and that the Secretary to the Government of India erred in rejecting the revision application without a hearing or a speaking order.
Finding of the Court:
The Court held that the seizure was not illegal as the seizing officer had a reasonable belief that the goods were smuggled, based on credible information received from reliable sources. The Court also held that the Collector did not err in not accepting the show cause filed by the petitioner as the burden of proof was on the petitioner to prove that the goods were not smuggled. However, the Court held that the appellate authority erred in holding the appeal time-barred as the petitioner was entitled to condonation of delay under Section 14 of the Limitation Act, 1908, since he was diligently prosecuting a writ petition before the Court challenging the Collector's order. The Court further held that the Secretary to the Government of India erred in rejecting the revision application without a hearing or a speaking order.
Issues: 1. Whether the seizure of the goods was illegal due to the absence of a reasonable belief that they were smuggled? 2. Whether the Collector erred in not accepting the show cause filed by the petitioner? 3. Whether the appellate authority erred in holding the appeal time-barred? 4. Whether the Secretary to the Government of India erred in rejecting the revision application without a hearing or a speaking order?
Ratio Decidendi: 1. The seizure of the goods was not illegal as the seizing officer had a reasonable belief that the goods were smuggled, based on credible information received from reliable sources. The burden of proof was on the petitioner to prove that the goods were not smuggled. 2. The Collector did not err in not accepting the show cause filed by the petitioner as the burden of proof was on the petitioner to prove that the goods were not smuggled. 3. The appellate authority erred in holding the appeal time-barred as the petitioner was entitled to condonation of delay under Section 14 of the Limitation Act, 1908, since he was diligently prosecuting a writ petition before the Court challenging the Collector's order. 4. The Secretary to the Government of India erred in rejecting the revision application without a hearing or a speaking order.
Final Decision: The Court quashed the orders of the appellate authority and the Secretary to the Government of India, and remanded the case to the appellate authority for disposal of the appeal on merit.
The petitioner filed an application under Articles 226 & 227 of the Constitution of India and obtained a rule from this Court for quashing the order dated 4.8.58 passed by the Collector, Central Excise (Annexure C), appellate order dated 22.2.66 of the Member, Central Board of Excise and Customs (Annexure F) and revisional order dated 15/17.5.67 of Secretary to the Government of India (Annexure G), and for issuance of a writ of mandamus directing the respondents to release to the petitioner 496 tolas and 6 annas of confiscated gold and gold ornaments the particulars of which the petitioner has given in his supplementary affidavit dated 13.11.69.
2. The petitioner is the proprietor of M/S Gopi Kishan & Co. dealing in gold and silver ornaments and bullions at Purani Bazar, one of the quarters of the town of Mozaffarpur. The said firm (shop) is located in the front portion of the house of Smt. Kishuni Devi, mother-in-law of the petitioner who was living in a portion of the house at the rear. The other portion of the house is occupied by one Jasoda Lal, another goldsmith. In still another portion of the house some other tenant was occupying at the relevant time. On 18.2.58 -the Superintendent of Central Excise (respondent no. 5) after obtaining a search warrant from the Sub-divisional Magistrate (respondent no. 6) held a search of the shop of the petitioner along with some police officers, and seized 155 tolas 11 annas and 6 pies of gold and guineas, books of account and other records from his shop for which a list was also prepared. After so doing respondent no. 5 put them in the iron safe of the petitioner and after locking the same put a seal over it. On the same date he also put his seals on two other iron safes which were kept in the adjoining room belonging to his mother-in-law. As alleged by the petitioner, they contained her gold ornaments. Between 19th and 25th of February, 1958 respondent no. 5 also checked the bills, vouchers and books of account of the petitioner, which he had seized and came to the conclusion on calculation that on 18.2.58 the petitioner should have had in stock 731 tolas 7 annas and 11/2 pies worth of gold. On 25.2.58 respondent no. 5 opened the three iron safes, and found one of the iron safes belonging to his mother-in-law, empty but in other two iron safes he found 1188 tolas and 7 annas worth of gold ornaments, which were again put into the petitioner’s iron safe, and sealed by him. On 1.3.58 respondent no. 5 went to the shop of the petitioner again, opened his iron safe and out of 1188 tolas and 7 annas worth of gold, he released only 722 tolas 1 anna and 7 1/2 pies worth of gold and gold ornaments to the petitioner whereas after preparing a list of remaining 416 tolas 5 annas 41/2 pies worth of gold ornaments and guineas, he kept them in the iron safe and sealed it. On 3. 3. 58 respondent no. 5 took away 416 tolas 5 annas 41/2 pies of gold ornaments and guineas which he had kept in the iron safe and seized them in addition to 155 tolas 11 annas and 6 pies of gold and guineas which he had already seized on 18. 2. 58, total being 572 tolas and 101/2 pies. The petitioner on the same date filed an application (Annexure A) before respondent no. 5 that the ornaments of his mother-in-law Kishuni Devi should not be mixed up with those articles which were seized from the custody of the petitioner. Her ornaments, he prayed, should be separately kept and listed but it was not done. He also submitted to respondent no. 5 on the same date an abstract account (Annexure A.1) of all the articles seized. On 13.3.58 the petitioner again represented before respondent no. 5 for the delivery of the articles. It seems that the matter was referred to the Assistant Collector of Central Excise, respondent no. 4, who by letter dated 12.4.58 declined to entertain the prayer for the petitioner. On 13.3.58 the petitioner sent a letter to respondent no. 5 for providing him a copy of the search warrant but by letter
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