( 1 ) THIS is an appeal from the judgment and order of Binayak Nath Banerjee, J. dismissing the appellant's petition under Article 226 of the Constitution and discharging the Rule against the Collector of Land Customs, Calcutta.

( 2 ) THE appellant is Kishanlal Agarwalla carrying on business under the name and style of "shree Katihar Jewellery" at Katihar in the district of Purnea. A servant and an employee of the appellant by the name of Dharam Chand Jain was going from Katihar to Calcutta. He was following a rather devious route, it being from Katihar by train to Raiganj, thereafter, by bus to Kaliaganj and then he Intended to proceed by bus to Balur-ghat from where he wanted to travel by air to Calcutta. This was the appellant's case. On the journey at Kaliaganj this Dharam Chand Jain was caught red-handed carrying 41 gold bars bearing No. 999. 10 and weighing 412 tolas 1 anna and 4 ratis, on the strength of an information, received by the Land Customs Authorities from a source. Dharam Chand Jain carried this large number of gold bars round his waist tied in dhoti. Four hundred and twelve tolas was a heavy weight. Apart from this large amount of gold and the large number of bars and their being all carried round the waist, an unusual place, there were other remarkable features attending this seizure of gold. This gold was packed with or wrapped up with printed census papers of East Pakistan. The fineness of the gold "999. 10" suggests that this gold was imported foreign gold because normally this fineness is not achieved in India. The seizure was made at Kaliaganj during the transhipment or change that the said Dharam Chand Jain was making in the journey. The seizure was actually made on the 13th November, 1956 between the hours 15. 55 and 20. 30 hours. The whole of the gold was recovered from the person of Dharam Chand Jain and from his waist, and was worth about Rs. 50,000. 2-A. The defence of the appellant was that, the gold was not smuggled or imported foreign gold, that this gold bar was made out from old ornaments purchased from Jewellers and thereafter melted at the shop of the appellant in the moulds of the appellant. Another part of the defence of the appellant is that the gold seized was later on substituted by a different gold by the Custom Authorities. A further defence of the appellant is that his servant Dharam Chand Jain was going to the firm of M/s. Ramdhondas Bhagwandas at No. 56, Netaji Subhas Road, Calcutta with this gold.

( 3 ) THERE was an investigation followed by the adjudication of the Collector of Land Customs. On the 14th November, 1956, the appellant's mould or forma in which the gold was supposed to have melted and moulded was handed over to the Authorities. It is needless to say that after seizure of the gold a search list was prepared, the gold bars were weighed and sealed with the seal of the District Enforcement Branch Officer in the presence of Dharam Chand Jain and two witnesses, on the 13th November, 1956. The gold was then deposited in sealed packet in the Raiganj Sub-Treasury with seals intact, on the 16th November, 1956. Thereafter, on or about the 14th May, 1957, the Superintendent of Land Customs, Raiganj Circle took over the gold bars from the Sub-Inspector. District Enforcement Branch Police, Kaliaganj, Raiganj Sub-Treasury. The appellant's books of account were requisitioned as well as the cash memo books on or about the 25th June, 1967. The gold bars were brought down to Calcutta on or about the 6th September, 1957.

( 4 ) THEREAFTER, on the 26th September. 1957 the appellant received the show cause notice or memo dated the 5th September, 1957 from the Superintendent, Land Customs, Raiganj Circle, Malda. Further investigation followed. The samples were tested and assayed by the Mint Authorities of the Government of India. Finally the present show cause notice was given on or about the 1st October, 1958 on which the adjudication took place. This show cause notice recites first th

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