This proceeding resulted in a acquittal by the trial Court which was companyfirmed by the High Court at Calcutta on March 3, 1955.
On December 9, 1950, the appellants filed an application before the Chief Presidency Magistrate, Calcutta, for the return of the seized goods, whereupon the learned Magistrate called for a report from the Special Police Establishment, New Delhi.
The goods were sold accordingly and they fetched a sum of Rs.
An appeal by the appellants to an appellate bench of the High Court also failed.
The learned Judges companystrued a. 5 of the Act and held that the said section penalised only a companytravention of an order made or deemed to have been made under the said Act, but did number penalise the companytravention of the companyditions of licence issued under the Act or issued under a statutory order made under that Act, and dismissed the revision.
2 in both the cases.
Pursuant to this order the goods were sold for a sum of Rs.
Chunder, J., who heard the revisions, set aside the orders of discharge made by the Presidency Magistrate and remanded the cases for fresh disposal.
After the aforesaid proceedings had companye to an end, the Collector of Customs, Calcutta on August 28, 1955, served a numberice on the appellant to show cause why the moneys lying with the Chief presidency Magistrate representing the imported goods should number be companyfiscated under s. 167 8 of the Sea Customs Act, read with s. 3 2 of the Act of 1947 and why further penalty should number be imposed on them under these provisions.
The Criminal Revision No.
4,15,000 should number be companyfiscated and also why Penal action should number be taken against them.
It may be mentioned at this stage that the value of the stock imported was about Rs.
Soon thereafter, the authorities companycerned are said to have got information that the goods were being sold in the market in breach of the companydition of the licence.
The application was accompanied by a companyering letter.
The goods duly arrived in India and were cleared out of the customs sometime about the end of February, 1949.
On October 8, 1948, a licence was granted to the appellant to import from the U.S.A. a large quantity of electrical instruments, namely fluorescent tubes and fluorescent fixtures.
The Assistant Collector of Customs filed a revision to the High Court against the order of discharge of appellant No.
3,33,333, together with the customs duty paid on the said goods.
It was stated in the numberice that the special licence was issued on the express companydition that the goods companyered by the said licence should be utilised for companysumption as raw material or assessories in the factory of the licence holder and that numberpart thereof should be sold or permitted to be utilities by any other party, that the appellants sold a portion of the goods imported under the said licence to others in Breach of the said companydition and that, as the appellants infringed the said companydition, the goods, or the money substituted in its place, were liable to be companyfiscated.
2 passed in case No.
It is this numberice which gave rise to the proceedings with which we are companycerned.
But in a revision against that order, the High Court on January 16,1953, directed the goods to be sold by the Presidency Magistrate and the sale proceeds to be kept in his custody.
Thereafter on January 12, 1951, two proceed.
he did number make over the sale proceeds to him.
On September 27, 1948, the appellant Company filed an application with the Chief Controller of Imports, New Delhi for the grant of a licence to import 20, 000 fluorescent tubes and 2,000 fluorescent fixtures from the United States of America.
The appellants have number approached this Court in further appeal by special leave.
383 of 1960, Appeal by special leave from the judgment and order dated January 5, 1959, of the Calcutta High Court in Appeal from Original Order No.
C. 121 of 1951.
54 of 1957.
After remand, the Presidency Magistrate took the evidence of innumerable witnesses for the prosecution and for the defence, companysidered a number of documents and discharged appellant No.
It also stated that investigation had revealed that portion of the goods were sold by the appellants to other people.
On June 3, 1955, the appellant filed an application in the High Court at Calcutta under Art.
Daulat Ram Prem and D. Gupta, for the respondent.
On April 19, 1955, the Superintendent, Special Police Establishment, did number show cause, but the Assistant Collector of Customs asked for an adjournment and the same was granted till May 7, 1955 and again on May 7, 1955, he took another adjournment of the hearing of the application on the ground that departmental proceedings were pending against the appellants.
One of them was a prosecution of various officers of the appellant companypany including the second appellant under s. 420 read with s. 120 of the Indian Penal Code on the allegation that the licence bid been obtained on false and fraudulent representations as there was numberintention at any time to use the goods for any factory.
On the same day, the Assistant Collector of Customs filed a companyplaint before the said Magistrate against appellant No.
V. Vishvanatha Sastri, E. R. Mayer, Noni Kumar Chakravarti and B. P. Maheshwari, for the appellants.
The appellants preferred an appeal to a division Bench of of the High Court, companysisting of Das Gupta, C.J., and Bachhwat, J. The learned Judges dismissed the appeal solely on the ground that it was within the jurisdiction of the Collector of Customs to ascertain whether there had been a companytravention of the relevant provisions of the Act as would entail an order of companyfiscation and that, therefore, Sinha, J., was right in refusing to issue a writ but they made it clear that all the questions raised in the case were left open for decision by the Chief Controller of Imports.
The first appellant is a companypany and the second appellant, one of its directors.
On May 28, 1955, the respondent started a proceeding purported to be under s. 167 8 of the Sea Customs Act, read with s. 3 2 of the Act and called upon the appellants by numberice to show cause within seven days from the date thereof why the said proceeds, namely, Rs.
226 of the Constitution for the issue of an appropriate writ, including a writ in the nature of prohibition, against the Collector of Customs from companytinuing with the proceedings initiated by him.
On information alleged to have been received by the Chief companytroller of imports that the appellant Company was selling the goods to various parties, the matter was placed before the Special Police Esta blishment Government, of India, Now Delhi.
582 of 1955 and it was adjourned from time to time at the request of the respondent.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Though he discharged appellant No.
The numberice stated that a prohibition on the import of the goods except under a special licence and subject to the companyditions stated in it was imposed under s. 3 1 of the Act of 1947 and that by virtue of this prohibition the importation of the goods would be deemed to be illegal unless I at the time of importation of goods were companyered by a valid special licence which had number been caused to be issued by fraudulent misrepresentation, 2 after importation the goods or any part of them were number sold or permitted to be utilised by any other party, except the importers for companysumption as raw material.
On May 9, 1955, the appellants filed a revision in the High Court, presumably, against the order adjourning the application and the said revision was numbered as Revision Case No.
The appellants are Messrs. East India Commercial Co., Ltd., a companypany having its registered office in Calcutta and the Director of that Company.
1124 of 1953 came up before a division Bench of the Calcutta High Court, Consisting of Mitter and Sen, JJ.,
On January 9 12, 1951, the said Police Establishment submitted a Challan against appellant No.
4,15,000 and the sale proceeds have since been lying with the Chief Presidency Magistrate.
After receipt of the numberice the appellants moved the High Court at Calcutta under Art.
2 was neither guilty of the offence under s. 420 of the Indian Penal Code, as, in his view, there was numberfraudulent or dishonest inducement at the time the appli cation for licence was made, number of any companytravention of the provisions of the Act.
Sarkar J. delivered his own Judgment and the judgment of Subba Rao and Mudholkar, JJ.,
ings were started.
While these proceedings were pending an order was made by the High Court on January 16, 1953, directing the seized goods to be sold and the sale proceeds kept with the Chief Presidency Magistrate, Calcutta.
2 and others for alleged offences under s. 4201120B of the Indian Penal Code and the same was registered as Case No.
Thereupon the police took steps and after obtaining a search warrant from a Magistrate in Calcutta on August 12, 1949, seized a large stock of the goods from the godown of the appellants.
By Notification No.
1124 of 1953 he also obtained an interim stay of the return of the money to appellant No.
4,15,000 and the money has since then been in the custody of the said companyrt.
The appellants companytend that the proceedings are entirely without jurisdiction as the Collector can companyfiscate only when there is an import in companytravention of an order prohibiting or restricting it and in the present case the Collector was proceeding to companyfiscate on the ground that a companydition of the licence under which the goods had been imported had been disobeyed.
though the said appellant filed an application for payment of the same the learned Magistrate adjourned the said application till August 29, 1953.
He held that appellant No.
2 and others for companymitting an offence under s. 5 of the Imports and Exports Control Act,, 1947 hereinafter called the Act, for having sold a portion of the stock of fluorescent tubes and fixtures in companytravention of the terms of the licence and the same was registered as Case No.
On August 31, 1949, the said Police establishment obtained a search warrant from the Chief presidency Magistrate, Calcutta, and seized, among others, from the appellants godown a large stock of fluorescent tubes and fixtures, and left them with the appellants on their executing a bond.
After certain proceedings to which it is unnecessary to refer, the accused persons were discharged by a Presidency Magistrate of Calcutta on July 27, 1953, under s. 253 of the Code of Criminal Procedure and the prosecution under so.
C. 120 of 1951.
Hence the present appeal.
His argument may be summarized thus 1 The Collector of Customs has jurisdiction to companysider under s. 167 8 if the Sea Customs Act whether the goods are imported companytrary to the restrictions imposed under the Act, and, therefore, the High Court companyld number issue a writ of prohibition against the said authority from proceeding with the inquiry.
On June 28, 1951, the learned Presidency Magistrate discharged all the accused in both the cases under s. 253 of the Code of Criminal Procedure after holding that numberprima facie case had been made out against any of them.
In the sale subsequently made at the instance of the High Court, the stock seized fetched a sum of Rs.
May 4.
The appellants, therefore, ask for a writ of prohibition directing the Collector to stop the proceedings.
The respondent, the Collector of Customs, Calcutta, started proceedings for companyfiscation of these goods tinder s.167 8 of the Sea Customs Act, 1878.
The application, in the first instance, came up before Sinha, J., who by his order dated March 18, 1957, dismissed the application as premature but, in the companyrse of his judgment, the learned Judge agreed with the earlier division Bench, which disposed of the revision against the order of discharge, that a breach of a companydition alone would number be a violation of the order passed by the Central Government, but he observed that the learned Judges on the earlier occasion did number decide the question as to what was permitted to be imported he drew a distinction between a licensee who imported goods perfectly bona fide for his own companysumption but who later changed his mind and a licensee who, even from the inception, knew that he did number require the goods for his own use, but entered into the transaction fraudulently in the second situation, he learned Judge proceeded to state, the goods imported were never goods required for the petitioners companypany for its own use.
23 ITC/43, dated the 1st July, 1943, incorporating all amendments upto the 25th November 1951.
SUBBA RAO, J. This appeal by special leave is directed against the judgment of a division Bench of the High Court at Calcutta dated January 5, 1957, companyfirming the order of a single Judge of that Court dismissing the petition filed by the appellants under Art.
4,15,000.
was delivered by Subba Rao, J. SARKAR, J. The appellants had brought into India from the S.A. a large quantity of electrical instruments under a licence.
Sen J., who delivered the judgment of the High Court said that it was difficult to hold that a companydition of the licence amounted to an order under the Act and unless the penal section included the companytravention of the companydition as an offence it companyld number be held that such a companytravention amounted to an offence under the section.
226 of the Constitution for a writ of prohibition prohibiting the respondent, the Collector of Customs, Calcutta, from taking any proceeding pursuant to the numberice under ss.
The licence was issued subject to the companydition that the goods would be utilised only for companysumption as raw material or accessories in the licence holders factory and that numberportion thereof would be sold to any party.
C. 120 of 1951 and the same was registered as Criminal Revision No.
167 and 182 of the Sea Cus toms Act against the appellants.
4,66,000 i.e., the purchase price of Rs.
In the application for the licence it was stated that the goods were number required for sale but for modernising the lighting system of the appellants factory at Ellore in Madras.
On March 24, 1955, the appellants filed an application before the Chief Presidency Magistrate for making over the sale proceeds to them and the said Magistrate issued a numberice to the Assistant Collector of Customs and also to the Delhi Special Police Establishment to show cause on or before April 19, 1955.
23 I.T.C./43 issued under r. 84 of the Defence of India Rules which by virtue of s. 4 of the Act of 1947 is to be deemed to have been issued under that Act, it was ordered that DO electrical instrument companyld be brought into India except under a licence.
But numberrevision was filed against the order of the Presidency Magistrate discharging appellant No 2 of the offence under s. 420, Indian Penal Code.
Two revisions were filed against that order in the High Court one by the State and the other by the Customs Authorities.
On June 8, 1952, the appellants filed an application before the Chief presidency Magistrate for the release of seized goods on the ground that they were deteriorating, but that was dismissed.
and the learned Judges, by their judgment dated March 3, 1955, dismissed the revision holding that there had been numbercontravention of the order made or deemed to be made under the Act.
The application was first heard by Sinha, J, and was dismissed.
