ORDER
D.N. Sinha, J.
1. This is an application for the issue of a writ in the nature of certiorari quashing and or setting aside the order made by the Additional Collector Of Customs, Calcutta, by which he has proceeded under Section 167(8) of the Sea, Customs Act read with Section 23-A of the Foreign Exchange Regulation Act, and has ordered the confiscation of 23 bars of gold mentioned in the said order, and has also imposed a personal penalty of Rs. 20,000/- on the petitioner. The facts in this case are disputed. The case made by the respondent is as follows; Sometime in August, 1958, an information was received by the Detective Department of the Calcutta Police that two Indian nationals, by the name of Sitaram Agarwala and Bholanath Gupta were going to purchase a quantity of Chinese smuggled gold. On. the 25th August, 1958, a constable shadowed these two persons when they made a journey By a public bus and took up their position on the western portion of Jatindra Mohan Avenue, near the Kali temple. After sometime, a baby taxi passed by that, spot, and upon a signal being given, it was stopped and the petitioner, whose name was later on learnt to be Wong Chichewa alighted from the taxi and shook hands with them. Thereafter, all of them boarded the taxi, and when the constable challenged them, and raised an alarm, the petitioner slipped out of the taxi and ran away along Raja Nabakissen Street, He was, however, chased by members of the public and while he was running away he kept dropping certain packets on the road. Three packets were picked up and handed over to the police. They were found to contain 23 bars of gold with, Chinese marks of Origin. The petitioner wag eventually apprehended by a traffic police sergeant at the junction of Raja Nabakissen Street and B.K. Pal Avenue, and was taken to the Shyam-pukur Police Station. The petitioner refused to sign the seizure list and disowned the gold bars. On a search of his person, he was found to wear a specially made cotton jacket having six pockets underneath his shirt, presumably for carrying the contraband gold. The two Indian nationals had a sum of Rs. 49.320/- on their person. On the same day, the petitioner made a statement before the Customs Officer, a copy whereof is annexed to the affidavit of Ramesh Chandra Mishra affirmed on 8th April. 1960. In this statement, he has confessed that he was a Chinese national. According to him, in the morning two persons came to his house, whom he knew for sometime, and asked him to carry some gold for them in a taxi to the temple in the centre of Chittaranjan Avenue beyond Grey Street and to deliver it to two Indians who would be waiting for it and who would pay him in Indian currency, which he was to bring back to them. He said that this was the operation which he carried out, and during which, he was apprehended by the police. He confessed that he got out of the taxi and was trying to run away, when the Crowd started running after him. He took out some gold bars from the packets and started; to throw them away on the road. He said that he was unable to give the, names or addresses of the two persons who came to his house and handed him the gold and asked him to carry out the operation. In the present petition, he states that he was walking along the B.K. Pal Avenue, Calcutta on the 25th August, 1958, when he was arrested by the police on the allegation that he was in possession of and wag attempting to sell foreign gold or gold bars which were alleged to be smuggled. He says that after he was arrested he was taken to the Shyampukur Police Station where he saw for the first time two other persons whom he later on came to know as Sitaram Agarwalla and Bholanath Gupta. It was then that he came to know that he was being charged with possessing smuggled gold numbering 231 bars, and valued at about Rs. 40,000/- which lie was attempting to sell to the said two persons. He says that he at once categorically denied the charge and on the 26th August, 1958 he was produced before the learned Chief Presidency Magistrate and ultimately enlarged on bail. He says that On the 9th October, 1958, the respondent No. 2 by letter No. S12 (IV)(T) 55058P issued a show-cause notice, a copy of which is annexed to the petition and marked with the letter “A”. It is then stated that on or about 12th October, 1958, the petitioner showed cause denying the allegations. In December, 1958, the opposite party No. 2 filed a petition of complaint under Section 167(8) Of the Sea Customs Act against the petitioner, the said Sitaram Agarwalla and Bholanath Gupta, before the learned Chief Presidency Magistrate, Calcutta. On the 30th May, 1959, tile learned Presidency Magistrate 5th Court, Calcutta, to whom the case was transferred, found the petitioner and Sitaram Agarwalla guilty of the offence under Section 167(8) of the Sea Customs Act, and sentenced the petitioner to suffer rigorous imprisonment for three months and to pav a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months more. The petitioner thereupon moved the High Court by way of appeal which is still pending. He says that all of a sudden, he was served with Order No. 175 dated 12th November, 1958, by which he was found guilty of an offence under Section 167(8) of the Sea Customs Act read with Section 23-A of the Foreign Exchange Regulations Act. By the said order, the gold which the petitioner disowned, was confiscated and a personal penalty of Rs. 20,000/- was imposed upon Mm although this was quite foreign to the notice to, show cause served upon him. He says that although he had given a written explanation, the order was made without hearing him. The copy of the order complained of, as made by the Additional Collector of Customs, is annexure “C” to the petition. It is against this order that this application is directed.
2. Upon going into the materials placed before me, the first thing that appears is that the petitioner is guilty of gross suppression of facts from the Court. As will appear from the summary given above, the petitioner has stated that a notice No. S12(IV/T)55/58P was issued to. him, whereupon he showed cause and the matter was disposed of without a hearing. A copy of this notice is annexed to the petition. The facts, however are entirely different. On the 9th October, 1958, two notices were issued to the petitioner. One is numbered as above, being a notice under the Foreign Exchange Regulations Act. The facts are stated in the said notice and the charge is that the petitioner wag engaged in the smuggling of Chinese gold and was attempting to sell the same. It was stated that the bringing of the gold into India was prohibited except under a permit, and under Section 23-A of the said Act, the petitioner was asked to produce the permit or authority issued by the Central Government or the Reserve Bank of India authorizing him to import 23 bars, of gold mentioned above failing which, a prosecution would be lodged against him in a Court of law, under Section 23(1) read with Section 8(1) of the Foreign Exchange Regulations Act, 1947. In this notice, there is no mention of the Sea Customs Act & the petitioner was not asked to show cause why the gold should not be confiscated and why a personal penalty should not be imposed upon him. That is the subject-matter of the second notice, which was issued to the; petitioner on the same day, being show-cause memo No. S12(W/T) 55/58P dated 9.10.58. It is in this show-cause notice that the petitioner was asked to show cause why the gold should not be confiscated and a personal penalty should not be imposed upon the petitioner. He was asked to show cause and to indicate whether he wanted a personal hearing. He gave an answer which is annexure ‘B’ to the petition. That answer itself shows that he had received both these notices, He has, however, disclosed only one notice and completely suppressed; the other from his petition. He never asked for a personal hearing, or for any opportunity for producing witnesses. The explanation given by the petitioner is a short one and merely states that he. was wrongly arrested, evidently on mistaken identity, or at the instance of some scheming persons who were Out to safeguard their own interests at the cost of an innocent person namely, the petitioner. He repudiated the allegation against him regarding importation Or possession and/or the attempt to sell foreign gold or gold bars. He says that the whole story was a fabrication and was based on falsehood. He denied having made any statement before any Customs Officer, Next, it is also untrue that he was charged or found guilty of an offence under Section 167(8) by the learned Presidency Magistrate. The complaint and the charge was under Section 167(81) of the said Act. The suggestion that, after having received he said notice he was suddenly served with the Order No. 175 dated 12th November, 1958, which is the order complained of, is also untrue. Before the order was made, he had been served with a show-cause notice, to which he gave an explanation and did not claim any personal hearing. Indeed, Mr. Dutt on behalf of the petitioner opened his case by stressing the fact that his client was found guilty of charges, not to be found in the show-cause notice. It was then that Mr. Kar produced the second notice. In my opinion, there has been such gross-suppression of facts in the petition, that it is sufficient to throw out the application on that ground alone, It is an established principle that in an application under Article 226 of the Constitution, the petitioner must disclose all facts known to him and failure to disclose any relevant fact makes the application liable to be dismissed in limine. It will be remembered that on the strength of this petition, an interim stay had been obtained. Although this is sufficient to dispose of this application, I shall also deal with the merits. Mr. Dutt appealing on behalf of the petitioner has taken the following point: He says that Section 167(8) of the Sea Customs Act deals with the importation or exportation of goods which was for the time being prohibited or restricted by or under Chapter IV of the Sea Customs Act, contrary to such prohibition or restriction. If there was such an importation, the goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding 1000 rupees. Mr. Dutt argues that on the facts of this case the petitioner, could not be said to be a ‘person concerned’ in the importation of the goods, although he may be concerned in an attempt to sell the same. Therefore, the personal penalty under Section 167(8) cannot be imposed. Now, this very same case was dealt with by Mitter, J., in Sitaram Agarwalla v. Additional Collector of Customs, Calcutta . A show-cause notice, similar to the one served on the petitioner, had been served on Sitaram Agarwalla as well and a personal penalty of Rs. 60,000/- was imposed upon him and the currency notes of Rs. 49,290/- were appropriated towards the same, by the Assistant Collector of Customs and Superintendent, Preventive Service. Sitaram Agarwalla thereupon made an application under Article 226, and this was the matter which was dealt with by the learned Judge. After considering the facts of the case and the law, the learned Judge came to the conclusion that it had not been shown that the petitioner, Sitaram Agarwalla was a ‘person concerned’ with the importation of the gold, which was alleged to be smuggled. He relied on a Madras decision, and has come to the conclusion that in order to come withdn the mischief of Section 167(8), it must be shown that the person charged was actually connected with, the illegal importation of the gold. Once the importation wag complete, then any subsequent dealing with it cannot come within the ambit of item (8) in the Schedule to Section 167 of the Sea Customs Act. The rule was therefore made absolute and the order of the Additional Collector of Customs was quashed. Now we have this application, in which I have to deal with, the case of the petitioner. The same arguments that were advanced on behalf of Sitaram Agarwalla are being advanced here. Mr. Dutt has not specifically argued, before me that the petitioner was not heard before making the order. However, there does not appear to be anything in this point, because the petitioner was told that if he wanted a personal hearing he should ask for it but he never did so. Before dealing with the question further, I would like to indicate shortly the legal position, It appears that by now, not only this High Court, but also the High Courts of Bombay and Madras have concurred in holding that the scope of Section 167(8) of the Sea Customs Act is a limited one. Section 167(8) specifically deals with the importation or exportation of any goods, which is for the time being prohibited or restricted, contrary to such prohibition Or restriction. When goods are imported, contrary to such prohibition, then an offence is committed-Gold is an article, the importation of which, without a permit, is prohibited. If such goods are apprehended, then two consequences ensue. As has been pointed out in Sewpujanrai Indrasanrai Ltd. v. Collector of Customs , in such a case if the goods are apprehended and even if the offender, namely the person who imported the same, as not known, there is a right in rem of confiscating the goods wherever it is found. Where, however, the offender is known, by which is meant the person importing the goods or any person concerned with such importation, then all such persons are liable in personam, and against them there can be imposed ,a personal penalty. So tar as the goods are concerned, in this case the petitioner does not claim the same. He was, however, in possession thereof at one time, and under Section 178-A of the Sea Customs Act the onus lay upon him to show that they were not smuggled goods. lie has failed to discharge the onus. We have to assume therefore, that 23 fears of gold, bearing Chinese markings, had been imported to India without a permit, and it was at the material time in the possession of the petitioner, who himself is a Chinese national. Tie principle that has been adumbrated in the various decisions, shows that a person, who is concerned with the importation can be made liable, but once the importation as complete, any further operation in respect thereof inside India, unless it can be connected with the act of importation, cannot be said to come within the mischief of Section 167(8), I have already mentioned the Calcutta decision. I shall now deal with the Other decisions. The matter was considered by the Madras High Court in Devichand Jestimail and Co. Bangalore v. Collector of Central Excise Madras . The facts in that case were as follows: On receipt of certain information, the Superintendent of Central Excise, Vellore, searched the shop and residence of Messrs. Venechand find Sons, and inter aim seized certain bars of good with foreign marks. This firm stated that they had purchased the gold from a certain party in Bangalore. Against this Bangalore party, proceedings were drawn up and penalties were imposed under Section 167(8), on the ground that he was concerned with the illegal importation of the gold. Thereupon, he made in application to the Madras High Court. It was held that, to bring the petitioner within the terms of Section 167(8) of the Sea Customs Act, it was necessary to establish that either he actually imported gold, or was concerned with the import thereof. It must be shown that he arranged for the import of the gold or abetted the import of the gold or received it immediately after the import, receipt being the final step in the process of importation. In other words, it must be proved that the applicant has either actually committed the offence of importation, or tins been an accessory to it, either before the fact or after the fact. To be in possession of the gold, or to sell the gold, or to buy the gold, once the process of importation, assuming the importation to be unlawful, is completed, and independently of the series of acts connected with such importation, will not fall within the terms of item 8 of Section 167. Mere possession of gold, which has been unlawfully imported into India, cannot be dealt with under item 8 of the Schedule to Section 167. It was held that there was no evidence that the petitioner had import d the gold or was concerned with the importation. The order imposing the personal penalty was, therefore, quashed. The same conclusion was arrived at in the Bombay case, Gopal Mayaji Parab v. T.C. Seth AIR 1960 Bom 478. The facts in that case were as follows: One Shankarlal, was in possession of two slabs of gold, which were smuggled in to. India. It was arranged on behalf of Shankarlal that these two slabs of gold should be melted at the shop of one of the petitioners, who carried on the business of running a metal melting workshop at Bombay. Shankarlal delivered the two slabs to the second petitioner, who brought the same to the shop of the first petitioner. While the two slabs we about to be melted, the same was seized under a search warrant, and later on proceedings were drawn up The petitioners were made liable to a penalty imposed under Section 167(8) of the Sea Customs Act, as being the persons concerned with the illegal importation of the goods. Desai, J., said as follows:
In connection with the construction of the words ‘person concerned’, Mr. Josha has relied upon the decision in the case of Attorney-General v. Robson (1850) 20 LJ Ex. 188. On the facts and the construction of the statute in question in that case it was held that the words ‘otherwise concerned’ mean having any interest whatever in the matter. The words of the Statute in that case were much more wider and are not apposite to the phraseology of Section 167(8). Even if the en ruction to be applied in the present case was that ‘person concerned’ meant person having any interest whatever in the matter’ that meaning would have to be applied to the matter of the smuggling of the two slabs of gold in question. The offence of smuggling in my view became complete at the period of time when the gold was imported Into India contrary to prohibition and restriction and the subsequent attempt to destroy the evidence that the gold was of foreign origin cannot make the petitioners persons having interest in the matter of smuggling of this gold.
3. Mr. Kar appearing on behalf of the respondents has relied on the case of (supra). It was held there that a person may be concerned with the importation of smuggled gold without being a smuggler, him-self and without himself contravening any of the provisions of the Foreign Exchange Regulation Act. The position, therefore, seems to be so follows : In order to constitute an offence under Section 167(8) of the Sea Customs Act, there must first be an illegal importation, that is to say importation which is for the time being prohibited or restricted. It is not disputed that the importation of gold from China or any where outside I (sic) prohibited and restricted, in the sense that no such importation is permissible without a proper permit. So far as the goods are concerned, the penalty of confiscation becomes effective in rem, and the goods, wherever it was found could be confiscated. When it comes to personal penalty the penalty can be imposed upon any “per on canceled” in any such offence. Therefore, in order to make a person guilty of this offence, it must be shown that he was directly or indirectly connected with the importation of the goods into the country. Mitter, J., has pointed out that in a particular case, if he operation of importation involves that it should not only enter the border but travel to a particular ‘destination it may be said that the act of importation extends’ to the journey of the goods to that place as well. This, however, must depend upon the evidence. In other words, the question whether a person is directly or indirectly connected with the illegal importation of goods into the country, is question of fact. It is an inference from facts established in the case, Fran this paint of view, the decision of Mitter. J., mentioned above becomes very important, because on the same facts the learned Judge held that the petitioner in that application was not a person concerned with the importation of the gold in question. The question is whether on the facts mentioned above, it can be held any different in the case of the petitioner in this application. It must be conceded that there is no direct evidence connecting the petitioner m this case with the illegal importation of the gold. In my opinion, However, in a case like this, it is neck necessary always to have direct evidence. The offending article here bore Chinese markings, that is to say there was evidence of Chinese origin. It was found in the possession of a Chinese national. According to the presumption laid down by Section 178-A of the Sea Customs Act, the onus was on the petitioner to prove that the goods in his possession were not smuggled goods. He failed to discharge that onus. The result is that we must assume that a Chinese national was in possession of smuggled goods of Chinese origin. When he was apprehended, he gave a statement, in which he said that the gold was handed over to. him by two unnamed persons, whom he knew because they wire frequent visitors to Chinese town, but whom he could not identify by names. If he could only substantiate this, then he would have come within the mischief of the case, cited above. He not only did not make any attempt to do so, but he went back on his confession. The Customs authorities have taken into consideration the conduct of the petitioner when apprehended. As soon, as the taxi was hailed by the police constable, he slipped out of it and ran away, dropping the gold bars along the street. This showed that the petitioner renew very well that they were smuggled goods. Then again, he was found wearing a specially made dress having six pockets. This shows premeditation and preparedness. I have already mentioned that the petitioner did not disclose in this application the real show-cause notice. I therefore, directed the respondent to file a copy of the same. A show-cause notice No. S12/IV/T(55-58), D/- 9.10.58 has been filed. In the show-cause notice, it is clearly stated that the petitioner was engaged in the smuggling of Chinese gold, and it was also mentioned that he was attempting to sell the same. There was no express denial of this in his answer dated 12.10.58, apart from saying that the petitioner had been wrongly arrested by the police on a mistaken identity. I must say that, regard being had to the fact that the petitioner was caught red-handed, running through the streets, dropping gold bars, the explanation was palpably false, I must not be taken to hold that in a case where the person is charged with the commission of an offence, under Section 167(8) or as being concerned with it, it is not to be proved like any other charge. But if it means, that there must be an actual apprehension of the smuggler while in course of illegal importation, then very few smugglers can be brought to book. In my opinion, the circumstantial evidence is strong enough to prove the case against the petitioner, namely that he was a person concerned with the illegal importation of the gold, bars found in his possession. Otherwise, the introduction of Section 178-A seems to be in the, and the burden of proof cannot be said to have shifted on to the person found in possession of the smuggled goods. In this case, the petitioner has already been convicted of the criminal charge, although I have to take into consideration the fact that an appeal is pending. In the proceedings, however, before the Collector of Customs, he failed to avail himself of a personal hearing and produced no evidence. In my opinion, the evidence before the Collector of Customs was sufficient to establish the fact that the petitioner was concerned with the illegal importation of the gold into India. It was no longer in the region of mere, suspicion. I might put this matter in a slightly different form. If a person is apprehended in possession of imported gold bars, the first thing that he can do is to show that; it has been imported according to law, that is to say, under a permit. If he cannot show it, then the presumption is that it is smuggled goods. If a person is in possession of smuggled goods, he can show that he is only connected with an operation subsequent to the importation; for example, the selling of the goods or the alteration of marks etc. In that case, he cannot be brought within the ambit of Section 167(8). But if he makes no attempt to establish such a case, and if the surrounding circumstances are such that it connects the person with the importation itself, or as an accessory after the fact, then it would be for him to dispel that view. We have here a Chinese national in possession of smuggled gold bars bearing Chinese marks, and showing Chinese origin, who cannot explain how it came to be in his possession. The story that he makes of having received the goods from others for disposal, lie cannot substantiate. Then again, his conduct when apprehended in possession of the gold is not that of a man who is merely a conduit pipe, but that of a principal. Re seems to have been specially prepared for it. Although I confess that this is a border line case, I am not prepared to say that in the circumstances, the Assistant Collector of Customs was not justified in holding the petitioner to be a person ‘concerned’ with the illegal importation of the gold.
4. This is the only point taken in this case on the merits, and in my opinion, it fails. For the reasons given above, the application should be dismissed. The rule is discharged. Interim orders, if any, are vacated. There will be no order as to costs.
