The burden of proof lies on the Department to establish that there is a violation of the statutory provision in Section 11K of the Customs Act, 1962, and the principles of natural justice require that the petitioner be given a reasonable opportunity to substantiate his defense.

JUDGMENT :

R.N. Misra J.

1. Challenge in this application under Article 226 of the Constitution is to the order dated 6-4-1971 (Annexuie-12) passed by the Collector of Customs and Central Excise (opposite party No. 1) in purported exercise of powers vested u/s 125 of the Customs Act, 1962 (hereafter referred to as the 'Act'), confiscating an ambassador car bearing registration No. ORR 1763 and authorising redemption thereof by one Bipin Prasad Agarwala on payment of a fine of Rs. 25,000 and also directing confiscation of 370.850 Kilogrammes of silver and authorising redemption of the same by the said Sri Bipin Prasad Agarwala on payment of a fine of Rs. 2 lakhs.

2. Petitioner alleges that he carries on money-lending business in his individual capacity from June, 1974 and he also started dealing in silver from September, 1976. He is an assessee under the Income Tax Act in respect of his business. In regard to his silver business, petitioner used to make local purchases of silver as also of old ornaments from the Tarava Market within Bolangir district. Petitioner's natural father Bipin Prasad Agarwala is a partner of a firm running under the name and style of Messrs Nagarmal Chhotelal (opposite party No. 4). The said firm also deals in silver. Petitioner maintains that in September, 1976, he sent 17 small silver bars, 98 silver coins, 4 silver sticks, 2 silver plates, 9 silver ingots weighing in all 370.850 Kilogrammes in an Ambassador Car driven by one Gobardhan Meher with a view to melting the same at Bargarh. Petitioner wanted the melted silver to be sent to Messrs Jalan & Company at Calcutta who are Commission Agents in Silver. On the basis of secret intelligence claimed to be available with the Preventive Officers of the Central Excise Department, the vehicle was intercepted on the way at about 5 a.m. and the silver was seized. A written statement was taken from Sarbeswar Dwari, the person accompanying the driver. Dwari happened to be an employee of Messrs Nagarmal Chhotelal (opposite party no. 4). A seizure list (Annexure-1) was drawn up. The Preventive Officers came to Tarava, raided the residential house of Bipin Prasad Agarwala (opposite party no. 5) and recovered and seized silver ingots weighing about 123 Kilogrammes. By noon time that day, the Assistant Collector of Central Excise together with Preventive Officers interrogated the petitioner and recorded his statement where petitioner claimed that the silver seized from the car belonged to him. In the afternoon that day. samples were drawn from the seized silver for assaying. A statement was taken from the driver of the vehicle. Further statements were also taken from Dwari, but all these statements had been collected behind the back of the petitioner. On 18-10-1976, petitioner applied for return of the seized silver and made a second petition to the same effect on 13-12-1976. On 7th of March, 1977, the Assistant Collector recorded a further statement of Bipin Prasad Agarwala behind the back of the petitioner and on the same day samples were drawn for the purpose of assaying from the seized silver from the residence of Bipin Prasad Agarwala. On 2-8-1977, the Collector of Central Excise issued show-cause notices to opposite parties 3 to 8 and the petitioner. In the notice petitioner was described as the son of Bipin Prasad Agarwala and it was stated therein that the specified goods were being transported in a suspicious manner to Bombay without cover of appropriate transport voucher and thus provisions of Section 11K of the Customs Act read with Rule 3(1) of Specified Goods (Prevention of Illegal Export) Rules 1969, had been violated. The notices were, therefore, called upon to show ca.use why the goods should not be confiscated u/s 113(b) of the Act and the car being the means of transport of the specified goods should not be conficated u/s 115(2) of the Act. They were also called upon to show cause why they may not be penalised u/s 114(i) of the Act. Petitioner claimed