1962 Supreme(Cal) 211

HIGH COURT OF CALCUTTA
BOSE, DEBABRATA MOOKHERJEE
MAHADEO (PROSAD) SARAF - Appellant
Versus
S. K. SRIVASTAVA - Respondent
A. F. O. O.  116  Of  1962 (Matter No. 166 Of 1962)
Decided On : SEPTEMBER 12, 1962

The appellate court has the power to grant an interim injunction pending disposal of an appeal from an order summarily rejecting an application under Article 226 of the Constitution.

Headnote:

CUSTOMS ACT - Import of Dunnage Wood - Confiscation of Dunnage Wood - Personal Penalty - Violation of Principles of Natural Justice - Denial of Adequate Opportunity to Produce Evidence - Perverse Order - Illegally Preventing Appropriation of Dunnage Wood Covered by License and Duty Paid - Appeal from Order of Summary Dismissal - Scope of Appeal - Powers of Appellate Court - Remand - Maintainability of Application for Injunction Pending Disposal of Appeal.

Fact of the Case:

The appellant, a sole proprietor of a business that deals in the sale and purchase of various kinds of timber and wood, entered into a contract with Scindia Steam Navigation Co. Ltd. for the purchase of unserviceable dunnage wood. The importation of dunnage wood was governed by a notification issued under the Sea Customs Act, 1878. The appellant received a letter from Scindia Steam Navigation Co. Ltd. offering 15 tons of dunnage wood from its steamer. The steamer entered the Calcutta Port and the appellant contacted the officers of the Steamship Co. and requested them to take necessary steps for delivery of 15 tons of dunnage wood. A guarantee was submitted with the Customs Authorities purporting to be that of respondent No. 4 with a request for discharging 15 tons of dunnage wood out of the steamer and for shifting the same to G. Berth in King George's dock. The guarantee was accepted by the Customs authorities and the Steamship Co. was permitted to discharge 15 tons of dunnage wood from the steamer. The goods were then discharged into a cargo boat and were finally landed from the cargo boat to G. Berth where they were examined by the Customs Appraiser for the purpose of ascertaining the quantity and value for assessment of customs duty. The Bill of Entry in respect of 15 tons of dunnage wood was duly filed and the duty assessed thereon was duly paid on behalf of the Steamship Co. respondent No. 4. The appellant paid a sum of Rs. 1140/- to the respondent No. 4 as the purchase price of the said 15 tons of wood and received a delivery order for the said goods. The unloading of the said 15 tons of wood from the steamer commenced on 6th October 1961 and was completed on 9th October 1961 and they were unloaded into a cargo boat bearing No. C-13729 belonging to one Girish Munni Chowdhuri and the said boat was being manned by a crew consisting inter alia of one Shatu Manji. The said goods after being unloaded from the cargo boat to the G. Berth were stacked and the stack was market with grey paint in accordance with the rales of the Customs Authorities. The appellant received a notice issued by the Assistant Collector of Customs and Superintendent Preventive Services Respondent No. 2. calling upon the applicant to show cause why action should not be taken against him under Section 167 clauses 3. , 8. and 29. of the Sea Custom Act. It was alleged in this notice to show cause that in addition to the 15 tons of dunnage wood discharged from the steamer "s. s. Jaiakirti" other quantities of dunnage wood had been unloaded from the steamer under the orders of a representative of the appellant without the Knowledge and consent of the Customs Authorities and a portion ot this had been removed by a lorry engaged by the appellant. The appellant sent a reply to the said notice. The appellant was offered inspection of certain statements of Manjis and, dandis of the said cargo boat No. 13729 on the basis of which the notice to show cause dated the 1st November 1981 had been issued by the Assistant Collector of Customs respondent No. 2. A personal hearing was given to the appellant by the respondent No. 1, the Additional Collector of Customs. AS the hearing the appellant relied on a statement of the said Shalu Manji which had been made by the Manji in his presence and in the presence of Girish Munni Chowdhuri. Thereupon the Manji was called as witness by the Additional Collector of Customs for giving evidence and the Manji stated before the Additional Collector of Customs that he had made no statement before the appellant but he had merely put his thumb impression on a blank piece of paper and he further stated before the Additional Collector of Customs that no statement had been extorted from him by the Customs Authorities and whatever he had stated before the Customs Authorities was the truth. It appears that thereupon the appellant requested the respondent No. 1 to grant a further personal hearing in order to enable the appellant to produce the said Girish Munni Chowdhuri as witness and ttie appellant also requested the respondent Ho. 1 to summon and record the evidence of the customs officers under whose supervision the dunnage wood had been discharged. Another letter was written by the appellant asking for a further personal hearing, but no such further personal bearing was granted. The respondent No. 1 passed an order for confiscation of the dunnage wood and imposed a fine of Rs. 6,000/- in lieu of confiscation. The respondent No. 1 further Imposed a personal penalty of Rs. 4,000/- under Section 167 8. of the Sea Customs Act and a personal penalty of Rs. 1,000/- under Section 167 3. of the said Act on the appellant. The appellant moved an application under Article 226 of the Constitution of India for a Writ in the nature of Certiorari for quashing the order of the 1st May, 1962 and also for a Writ in the nature of Mandamus directing the respondents to recall or cancel the said order and to forbear from giving effect to the said order. But the application was dismissed In limine by Banerjee J. The appellant took out a notice of motion on 12th June, 1962 asking for an injunction restraining the respondents their agents and servants from taking any steps under the said order dated the 1st May, 1962 pending disposal of the appeal. An interim injunction was granted by this Court ex parte ponding disposal of the application and the notice of motion was made returnable on the 18th Juna 1962. Thereafter directions for affidavits were given and when the application for injunction came up for hearing certain objections ware raised on behalf of the respondents as to ttie maintainability of the application.

Finding of the Court:

The court found that the appellant was not given a fair opportunity to present his case and that the order of confiscation and penalty was perverse. The court also held that the appellate court has the power to grant an interim injunction pending disposal of an appeal from an order summarily rejecting an application under Article 226 of the Constitution.

Issues: 1. Whether the appellant was given a fair opportunity to present his case before the Additional Collector of Customs? 2. Whether the order of confiscation and penalty was perverse? 3. Whether the appellate court has the power to grant an interim injunction pending disposal of an appeal from an order summarily rejecting an application under Article 226 of the Constitution?

Ratio Decidendi: 1. The court held that the appellant was not given a fair opportunity to present his case before the Additional Collector of Customs because he was not allowed to produce further evidence to support his case and to cross-examine the witnesses of the Customs Authorities. 2. The court held that the order of confiscation and penalty was perverse because it was based on the finding that the appellant was involved in the illegal importation of dunnage wood, which was not supported by the evidence. 3. The court held that the appellate court has the power to grant an interim injunction pending disposal of an appeal from an order summarily rejecting an application under Article 226 of the Constitution because the appellate court has the same powers as the trial court, including the power to grant interim relief.

Final Decision: The appeal was allowed and the order of the learned trial Judge was set aside. The court directed that a Rule Nisi do issue in this case and the learned trial Judge taking matters under Article 226 of the Constitution do give direction for service of notice to show cause upon the respondent opposite parties and after giving opportunity to the parties to file affidavits determine the case on the materials placed before him.