JUDGMENT
1. This is a petition for an appropriate writ under Article 226 of the Constitution, challenging the order of the first respondent dated 21st January 1961. It is the petitioner’s case that the petitioner purchased 3029 pieces of diamonds weighing about 380 carats from a jeweller in Calcutta. The petitioner thereafter came to Bombay and on the 16th May, 1960 the petitioner was arrested by the Officers of the Customs Department at Bombay. The arrest was on the charge of violation of the Sea Customs Act. The petitioner made two statements before the Customs Officers on the 16th May, 1960. It is the petitioner’s case that these two statements were extracted from the petitioner by pressure and coercion. It is, however, the respondents’ case that the petitioner made the two statements voluntarily. On the 17th May, 1960 the said diamonds were seized by the Customs Officers. On the 2nd September 1960 the Assistant Collector of Customs, Preventive Department, issued a show cause notice to the petitioner. The petitioner was thereafter given a hearing. Thereafter the first respondent, who is the Additional Collector of Customs, passed the said impugned order. By that order the first respondent has ordered, firstly, an absolute confiscation of the said diamonds under section 167(8) of the Sea Customs Act read with section 3(2) of the Imports and Exports (Control) Act, 1947 and, secondly, held the petitioner as a person concerned in the offence of illegal importation of the said diamonds and imposed a personal penalty of Rs. 2,50,000/- under the said section 167(8). Both the parts of the said order have been challenged by this petition.
2. So far as the first part of the said order which deals with confiscation is concerned, the petitioner has challenged it on two grounds. The petitioner has challenged the validity of the said order as regards confiscation on the ground of the invalidity of section 178A of the Sea Customs Act. In view of the judgment of the Supreme Court dated 25th September, 1961 in Civil Appeals Nos. 408 and 409 of 1960, which is subsequent to the acceptance of this petition and the issuing of the Rule therein, the point does not, in my opinion survive any longer. The Supreme Court Judgment has upheld the validity of the said section 178A and the judgment is, in my opinion, conclusive so far as this contention of the Petitioner is concerned.
3. Mr. Sorabji, however, contended that even if this court upholds the validity of section 178A the order of confiscation is bad because the diamonds were seized without reasonable belief there being as required by sub-section (1) of the said section 178A. In this connection it is relevant to note what is stated in the impugned order and particularly in paragraph 16 thereof. The statements in paragraph 16 of the order specifically mention that the first respondent reached his conclusion on two considerations mentioned as (a) and (b) in that paragraph, not cumulatively but on each of them independently of the other. The present contention is covered by the said consideration mentioned as (a) in paragraph 16. Even if the petitioner was right in his present contention, the petitioner would still have to succeed also in respect of the consideration mentioned as (b) in that paragraph. The latter consideration is based not on a presumption under section 178A but on evidence, as if the burden of proof was not on the petitioner but on the Department. On that basis the first respondent has held against the petitioner on the statements made by the petitioner himself. As stated earlier, the petitioner has alleged that he did not make the said statements voluntarily but the same were extracted from him by pressure and coercion. The voluntariness or otherwise of those statements is a question of fact and the petitioner is not entitled to agitate the same in this petition and this petition must proceed, and has in fact proceeded, on the basis that the statements were, so far as this petition is concerned, made voluntarily. Under the circumstances even if the petitioner were to succeed in his present contention about the absence of reasonable belief, the order would still be sustained on the ground of the same having been made on the basis that there was sufficient evidence that the diamonds were imported into India illegally as mentioned in consideration (b) in the said paragraph 16. This contention of the petitioner also, therefore, fails.
4. The second part of the impugned order is as regards the imposition of the personal penalty. This part of the order is challenged on two grounds; firstly, that the petitioner was not the person concerned in the importation of the diamonds within the meaning of section 167(8), and secondly that the order about personal penalty has been made in violation of the principles of natural justice as in making that order the first respondent had relied upon the statements made by one Shankerbhai Bhikhabhai Patel and in spite of demand no opportunity was given to the petitioner to cross-examine him. In paragraph 20 of the impugned order it has been specifically stated that for the determination of this point about the imposition of personal penalty the first respondent did place reliance upon the statements of the said witness Shankerbhai. In paragraph 21 of the order it has further been stated that as copies of the statements of the said Shankerbhai had already been supplied to the petitioner, the principles of natural justice had been amply complied with and that in the opinion of the first respondent the principles of natural justice did not enjoin on him to all the cross-examination of Shankerbhai. It has been further specifically stated that in that view of the matter the first respondent rejected the petitioner’s request for cross examination of Shankerbhai. A Division Bench of this Court consisting of Patel and Chanderchud, JJ. has held on identical facts, so far as the same are relevant in Spl. C.A. No. 947 of 1960 by its judgment dated 21st July/2nd August, 1961 that even if copies of the statements of witnesses which have been relied upon are furnished, the refusal to permit cross-examination of those witnesses would amount to a violation of the principles of natural justice and invalidate any order which is passed relying upon such statements. In view of that judgment, the order as regards personal penalty must be held to have been passed in violation of the principles of natural justice and to be, therefore, invalid and liable to be set aside. In view of that conclusion, it is not necessary for me to decide the other contention of Mr. Sorabji that the order is invalid also on the ground that the petitioner was not a person concerned in the importation of the said diamonds within the meaning of section 167(8) and I do not, therefore, decide the same.
5. In the result, the petition must fail in so far as it challenges the order relating to confiscation but must succeed in so far as it challenges the order relating to the imposition of personal penalty. In the result there will be an order issuing a writ of Certiorari quashing the impugned order in so far as it imposes the personal penalty of Rs. 2,50,000/- against the petitioner. I may make it clear that as the second part of the order has been quashed on the ground that in the holding of the inquiry there has been a violation of the principles of the natural justice, it will hereafter be open to the Customs authorities to hold another inquiry on the same ‘ subject-matter and to take appropriate action. As the petitioner has failed as regards the order relating to confiscation but succeeded as regards the order relating to personal penalty, I order that there shall be no order as to costs.