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HIGH COURT OF CALCUTTA
S. P. MITRA, S. C. GHOSH
SOVACHAND MULCHAND - Appellant
Versus
COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS - Respondent
Appeal 45 Of 1954
Decided On : NOVEMBER 23, 1966
SEA CUSTOMS ACT - SECTION 167(8) - SECTION 182 - INTERPRETATION - MENS REA - ALTERNATIVE REMEDIES - WRIT JURISDICTION - SCOPE AND EXTENT - JUDICIAL REVIEW - DISCRETION OF THE COURT.
Fact of the Case:
The petitioner, a company, imported certain goods into India. The Collector of Central Excise and Land Customs, Calcutta, issued a show cause notice to the petitioner under Section 167(8) of the Sea Customs Act, 1878, alleging that the petitioner had contravened the provisions of the Act by importing the goods without paying the requisite duty. The petitioner filed a writ petition in the Calcutta High Court challenging the show cause notice on the ground that it was issued without any mens rea on the part of the petitioner.
Finding of the Court:
The Calcutta High Court allowed the writ petition and quashed the show cause notice. The court held that the element of mens rea is a relevant factor to be taken into consideration in an offence alleged to have been committed under Section 167(8) of the Sea Customs Act. The court also held that the existence of an alternative remedy under the Sea Customs Act does not oust the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution.
Issues: 1. Whether the element of mens rea is a relevant factor to be taken into consideration in an offence alleged to have been committed under Section 167(8) of the Sea Customs Act? 2. Whether the existence of an alternative remedy under the Sea Customs Act ousts the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution?
Ratio Decidendi: 1. The court held that the element of mens rea is a relevant factor to be taken into consideration in an offence alleged to have been committed under Section 167(8) of the Sea Customs Act. The court relied on the observations of the Supreme Court in M. G. Abrol v. Shantilal Chhotelal and Co., (1966) 3 SCR 200, where it was held that the existence of an effective remedy does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the High Court should take into consideration in exercising its discretionary jurisdiction under Article 226 of the Constitution. 2. The court held that the existence of an alternative remedy under the Sea Customs Act does not oust the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution. The court relied on the observations of the Supreme Court in Municipal Council, Khurai v. Kamal Kumar, (1962) 3 SCR 375, where it was held that the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party. However, the High Court has jurisdiction to grant relief to such a party if it thinks it proper to do so in the circumstances of the case.
Final Decision: The appeal was allowed. The Rule was made absolute and the order of the Collector of Central Excise and Land Customs, Calcutta, dated the 12th December, 1951 was quashed and or set aside by a Writ in the nature of Certiorari and there will be a Writ in the nature of Mandamus directing the respondents not to give effect to the same. The Respondents may, however, if they are so minded, proceed with the show cause notice in accordance with law.
( 1 ) THIS is an appeal from the Judgment and Order if Sinha J. (as he then was) dated the 25th November, 1953. The facts briefly are that prior to the 1st of June, 1951, the export of Aluminium to Pakistan was permissible under an Open General licence. There was no prohibitior on such exports. BY a Notification dated the 1st June. 1951, the Government of India, imposed a prohibition. M/s. Sovachand Mulchand the appellant before us applied on the 10th July, 1951 to the Land Customs Authorities at Sealdah for a permit to export a certain quantity of aluminium warp to Mymonsingh in Eastern Pakistan. The Government of India on July 12, 1951, rejected the application: but since the notification of the 1st June, 1951 had not been communicated to Sealdah. a wagon was allotted to the petitioner on the 13th July, 1951 for despatch of goods on the 14th. As the goods were not tendered, the Railways, we were told, cancelled the allotment. On the 11th July, 1951, the notification of the 1st June, 1951. reached Sealdah. The petitioner did not get in touch with the authorities at Sealdah and on the 16th July, 1951, made another application to the Land Customs at Naihati for a permit to export the same quantity of adminium to Mymonsingh. The Naihati authorities gave the requiste permission as they were not aware of the 1st June notification The petitioner thereupon exported aluminium to Eastern Pakistan
( 2 ) ON the 31st August, 1951, the Collector of Central Excise and Land Customs gave a notice to the petitioner alleging that the petitioner had exported the said consignment of aluminium in violation of the notification of the 1st June, 1951. In this notice it was alleged (a) that the Land Customs Officer refused to pass the goods under an Open General Licence; (b) that the Railways had cancelled the wagon which was allotted to the petitioner; (c) that the petitioner came to know that the instructions restrict line the export of aluminium ware had not till then reached the Naithatl Land Customs Station; (d) that in order to defeat the export trade control restrictions the petitioner speedily transported the consignment by a lorry to the Naithati Land Customs station; (e) that taking advantage of the fact that the officer at Naithati was not aware of the notification, the petitioner submitted a fresh export application dated the 16th July 1951; and (f) that having obtained a permit from the officer at Naihati. the petitioner exported the said consignment to Eastern Pakistan. The petitioner was charged with exportation of the consignment in contravention of Section 19 of the Sea Customs Act. 1878 deliberately and with full knowledge of the illegality of the petitioner's action The petitioner was called upon to explain why action should not be taken against the petitioner under Section 167 (8) of the Sea Customs Act, 1878 for this deliberate and wilful breach of Section 19 of the Act. It was stated in this notice that if no reply were received within seven days from the receipt of this "memo". the case would be decided ex parte. This show cause notice was signed by an Officer ''for Collector of Central Excise and Land Customs. Calcutta. "
( 3 ) THE petitioner save a reply to this show cause notice. The date of the reply does not appear from page 20 of the Paper Book In this reply the petitioner staled, inter alia, that (a) the consignment which was passed at the Naihati Land Custonis station was completely different from the one for which the petitioner had applied for an Open General Licence to the Sealdha Authorities and (b) the petitioner had no information about any restriction on the movement of aluminium ware to Eastern Pakistan.
( 4 ) THE Collector of Central Excise and Land Customs, Calcutta, passed an order on the 12th December, 1951, imposing on the petitioner a personal penalty of Rs. 15,000. 00. The petitioner thereupon made an application to this Court under Article 226 of the Constitution challenging the
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