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Gujarat High Court
Judgename :M.U.SHAH, J.M.SHELAT
BAPALAL KHUSALDAS GOSALIA - Appellant
Versus
R.PRASAD,collector OF CENTRAL EXCISE,baroda - Respondent
S.C.A. 841 of 1960
Decided On : 03/11/1964
Foreign Exchange Regulation Act 1947 – Sections 8 (1),23a – Sea Customs Act – Sections 19,167(8),182,178(a) – Customs – Property Possession Issue – It was the case of the petitioner that he purchased two ingots of gold in Bombay from the open market at the rates then prevailing – he came to Jorawarnagar where he stayed in his aforesaid bungalow for about twenty to twenty five days and returned thereafter to Marmagoa the customs authorities visited the said bungalow for making a search thereof pursuant to a search warrant obtained by them – As the petitioner was absent his munim one Soonderji Nagardas informed the customs authorities that he did not have in his possession all the keys of the bungalow – On the authorities threatening to break open the lock of the bungalow one Chunilal Umedchand undertook to produce the keys as early as possible – Held, As pointed out earlier the petitioners case was that the ingots were purchased by him as early as 1946 that is to say before the said notification of 1948 – Barring the private enquiries said to have been made by the first respondent and the inferences drawn there from there is nothing on record to show that the petitioners statement that he had purchased these ingots in 1946 was untrue or was such as could not be accepted – In our view the enquiry was conducted by the first respondent in a manner which was violative of the principles of natural justice and consequently both the enquiry as also the impugned order were vitiated and were bad in law – Court therefore of the opinion that the first respondent wrongly applied the provisions of section 178a and equally wrongly invoked the presumption therein contained and cast there under the burden of proving a negative thing upon the petitioner – Court are also of the view that in conducting the enquiry and passing the impugned order the first respondent violated the principles of natural justice –Order Accordingly
( 1 ) THIS is a petition for the writs of certiorari prohibition and mandamus for quashing the order passed by the first respondent dated October 29 1959 for prohibiting the respondents from enforcing implementing or executing the said order and for directing the first respondent to withdraw and/or cancel the aforesaid order. The impugned order came to be passed in the following circumstances:-
( 2 ) AT all material times the petitioner owned a house called Manju Villasituated at Jorawarnagar. In 1958 and 1959 the petitioner was ordinarily residing at Marmagoa where he was carrying on the business of mining. It was the case of the petitioner that in or about 1946 he purchased two ingots of gold in Bombay from the open market at the rates then prevailing. In or about August 1958 he came to Jorawarnagar where he stayed in his aforesaid bungalow for about twenty to twenty five days and returned thereafter to Marmagoa some time in September 1958 On December 4 1958 the customs authorities visited the said bungalow for making a search thereof pursuant to a search warrant obtained by them under section 172 of the Sea Customs Act VIII of 1878. As the petitioner was absent his munim one Soonderji Nagardas informed the customs authorities that he did not have in his possession all the keys of the bungalow. On the authorities threatening to break open the lock of the bungalow one Chunilal Umedchand undertook to produce the keys as early as possible. Nothing else happened on that day except that the officers sealed the doors of the said bungalow and posted custom guards thereat. By his letter dated December 6 1958 the Assistant Collector of Customs Rajkot informed the petitioner at Marmagoa to appear before him at Surendranagar on December 14 1958 with the keys of the said bungalow as also of the cup-boards safest. therein failing which he was informed that the authorities would break open the bungalow as also the safes cup-boards etc. placed therein. On December 17 1958 the bungalow was searched by the customs authorities and in the purported exercise of their powers enter alia seized two gold ingots weighing about 19 tolas and 14 annas. They also seized certain gold and silver ornaments which according to the petitioner belonged to his wife. After these articles were seized a panchnama was recorded and thereafter the customs authorities left the bungalow. At about 6-15 P. M. on that very day one Amratlal Ratilal Shah made an application on behalf of the petitioner calling upon the Collector of Central Excise Baroda to furnish to the petitioner the statement of reasons for the seizure of the aforesaid articles. On December 27 1958 the Assistant Collector of Customs intimated to the petitioner of the fact of the seizure of the said gold ingots and the ornaments observing that enquiries were being made by the customs in connection with the importation of those articles By that letter the petitioner was called upon to produce before the Assistant Collector of Customs evidence regarding the importation of the ingots and the ornaments seized on December 171958 In reply to the aforesaid letter dated December 17 1958 the Collector of Central Excise Baroda by his letter dated January 8 1959 stated that the seizure of the said articles had been made by the customs authorities under a search warrant issued by a competent Magistrate as the said articles were believed to be dutiable goods and/or prohibited and therefore liable to confiscation. As the petitioner could not leave Marmagoa by reason of certain territorial restrictions then prevailing he was represented by an advocate in the matter of the seizure of the said articles. By his letter dated March 12 1959 the petitioners advocate pointed out to the customs authorities that the two ingots seized by the authorities had not been illegally imported or smuggled into the country and expressly stated that they were not of foreign origin as suspected by them and further th
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