DEBABRATA MOOKERJEE, J.

( 1 ) THIS appeal is brought from a decision of G. K. Mitter, J. , dated March 25, 1960, by which the learned Judge directed the issue of Writs in the nature of Certiorari, Mandamus and Prohibition in respect of an order made by the Additional Collector of Customs on the 15th June of 1959.

( 2 ) THE respondent was proceeded against under Section 167 (8) of the Sea Customs Act and a personal penalty of Rs. 60,000/- was imposed upon him by the Additional Collector of Customs on the finding that he was a person concerned in smuggling gold of foreign origin into India. A sum of Rs. 49,320/- found upon his person was directed to be detained in Order to be applied towards realisation of the penalty in the event of its remaining unpaid.

( 3 ) IT appears that besides the respondent two other persons Bholanath Gupta and a Chinese national named Wong Chit Khaw were proceeded against; Bholanath was dealt with in the same proceeding with the respondent but the Chinese national Khaw was dealt with separately in another proceeding. Nothing having been established against Bholanath, no penalty was imposed upon him; but in a separate proceeding the Additional Collector of Customs imposed a personal penalty in the sum of Rs. 20,000/- on the said Wong Chit Khaw and ordered confiscation of 23 bars of Chinese gold valued at Rs. 40,441/11 np. , found upon him.

( 4 ) THE respondent Sitaram Agarwalla as well as the said Chinese national were further prosecuted before a Magistrate. The trial ended in conviction of both of them under Section 167 (81) of the Sea Customs Act. The respondent was sentenced to pay a fine of Rs. 2000/- in default to suffer rigorous imprisonment for sis months and Wong Chit Khaw was sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for three months.

( 5 ) IT appears that the convicted men took an appeal to this Court and the appeal (Criminal Appeal No. 360 of 1959) was allowed and the convictions and sentences were set aside by an order dated the 11th August, 1961.

( 6 ) WONG Chit Khaw also applied under Article 228 of the Constitution challenging the decision of the Additional Collector of Customs imposing personal penalty and directing confiscation of the gold found upon him. That petition (being Matter No. 17 of 1960) was dealt with and dismissed by Sinha, J. on July 20, 1961, See 1962 (1) Cri LJ 317 (Cal ).

( 7 ) WE have, therefore, before us at the moment the appeal of the Additional Collector of Customs and others against the respondent Sitaram Agarwalla. We are not aware if any appeal has yet been preferred by the Chinese national against the decision of Sinha, J. whereby he upheld the order of the Additional Collector of Customs.

( 8 ) THE facts shortly stated are that on receipt of some information a constable attached to the Detective Department of the Calcutta Police was maintaining watch on the movements of the respondent Sitaram and the aforesaid Bholanath Gupta. On August 25, 1958, at about 11-30 a. m. these two men were seen to move together and eventually to station themselves on the western pavement of Jatindra Mohan Avenue near a certain temple. A baby taxi was seen shortly thereafter to proceed in that direction. At its approach, a signal was flashed when its occupant, the said Chinese national Wong Chit Khaw alighted from the taxi, shook hands with them and all the three men boarded the taxi. At this point of time, the constable raised an alarm which attracted public notice and he was able to secure the respondent Sitaram Agarwalla and his companion Bholanath Gupta. They were immediately taken to the police station for purposes of interrogation. In the confusion that prevailed, the Chinese national ran away but was given a chase by members of the public. While attempting to elude apprehension, the Chinese was seen to drop three packets which were picked up from the road by three men which they at

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