The court held that the notification prohibiting export of all goods to Rhodesia was beyond the authority given by Section 3 of the Imports and Exports (Control) Act, 1947, and the show cause notice based on the alleged violation of the said order was without jurisdiction.

SABYASACHI MUKHARJI, J.

( 1 ) IN this application under Article 226 of the Constitution Messrs. Hoare Miller and Co challenges the notice dated 5th October, 1967 issued by the Assistant Collector of Customs to the petitioner to show cause why the goods covered by the three shipping bills mentioned in the said notice should not be confiscated under Section 113 (d) of the Customs Act, 1962 and why penal action should not be taken against the petitioner under Section 114 of the Customs Act, 1962. After setting out the facts of those three shipping bills the notice stated, inter alia, as follows:--"3. The facts detailed in para. 2 tend to show that the contracts in respect of the subject Roods have been entered into between Messrs. Union Agencies (Distributors) Pvt. Ltd. Rhodesia and the exporters. The name of their Zambia Associates Messrs Factors Zambia Ltd. , had been utilised as a cover and Messrs. J. N. Barnett and Co. Beirs as their Agent for diversion of the goods to Rhodesia. Exports to Rhodesia are prohibited in terms of the Government of India order No. 9/65 dated 17-11-65 issued under Section 3 of the imports and Exports (Control) Act. 1947. As it appears that Messrs. Hoare Miller and Co. Ltd. , have filed the shipping bills under reference in an attempt at exporting the goods to Rhodesia in contravention of the aforesaid prohibition, the goods under reference appear to be liable to confiscation under Section 113 (d) of Customs Act and Messrs. Hoare Miller and Co. Ltd. is liable to penal action under Section 114 ibid, for attempting to contravene Section 11, Customs Act read with Sec. 3 Imports and Exports (Control) Act, 1947. Messrs. Hoare Mills and Co. Ltd. are hereby directed to explain in writing and to show cause within a week hereof why the goods should not be confiscated under Section 113 (d), Customs Act. 1962 and why penal action should not be taken against them under Section 114, Customs Act, 1962. They should also produce documentary evidence if any in support of their explanation. They may also inform this office in writing if they would like to avail of any personal hearing in this matter. If no reply is received within the stipulated time, the case will be adjudicated on the basis of evidence on record without any further reference to them. This is without prejudice to any other action that may be taken under any other law for the time being in force in India. They may take inspection of the documents and copies thereof by prior appointment with the undersigned. "

( 2 ) IN effect, the notice stated that the goods covered by the shipping bills were indirectly meant for Rhodesia export to which country was prohibited and as such the petitioner has contravened the provisions of law. In this connection, it is relevant to refer to the Notification of the Ministry of Commerce prohibiting export of goods to Rhodesia. The said notification was to the following effect:-- "s. O. 3613.-- In exercise of the powers conferred by Section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947) the Central Government hereby prohibits the import and export of all goods whether directly or indirectly, into or from any port or place in India, from or to any place in Rhodesia. No. IPC (Genl. 44)/65 P. Sabanayagam, Chief Controller of Im- ports and Exports. ''

( 3 ) IN this application under Article 226 of the Constitution the petitioner has challenged the said show cause notice. For the purpose of this application the petitioner has confined the challenge to three grounds. It was contended, firstly, that the prohibition of export was by the Controller and not by the Central Government. It was contended that under the Imports and Exports (Control) Act, 1947 it was the Central Government which was competent to impose any prohibition and not the Controller. Secondly, it was urged that there was no juirsdiction under Section 3 of the imports and Exports (Control) Act, 1947 to restrict export indirectly. It was submitted tha

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