ORDER This Rule is directed against an order, dated June 12, 1961, whereby the respondent No. 2, an Additional Collector of Customs, imposed a penalty of Rs. 5,00,000/- on the petitioner No. 1 Company, Shamlal Sen Private Ltd., and further imposed a personal penalty of Rs. 3,00,000/- on each of the petitioners No. 2 to 5, all Directors of the petitioner No. 1 company, and also ordered confiscation of certain gold bars and gold coins, under Section 167 (8) of the Sea Customs Act read with Section 23-A of the Foreign Exchange Regulation Act. 2. The petitioner company carries on business in gold and silver and has its registered office at No. 3, Meer Bahar Ghat Street (previously No. 7, Nalini Sett Road) and a workshop at premises No. 164, Cotton Street, in the town of Calcutta. On December 29, 1954, the premises of the petitioner company at No. 164 Cotton Street and No. 3 Meer Bahar Ghat Street were searched by men of the Customs Department and gold, as per description hereinbelow given, was seized by them as smuggled gold, namely, a) gold leaves weighing 44 tolas 13 annas 6 pies b) gold coins bearing inscription (i) Habib Bank, 6 pieces (ii) Murshidabad coins, 58 pieces (iii) S. L. Sen, 502 pieces (iv) Sovereigns, 6 pieces (v) gold mohurs, 4 pieces in all weighing 321 tolas 9 annas 6 pies. c) gold bullion weighing 306 tolas 8 annas. 3. The petitioners characterise the said search and seizure as wrongful and illegal. They also say that at the time when the gold was seized from the petitioners, the respondent No. 2, S. K. Srivastava, who at that time was an Assistant Collector and Preventive Inspector, was personally present at the premises. The name of respondent No. 2 figures prominently in the petition and the grievance of the petitioners is principally directed against the part which he played in passing the impugned order. 4. On the night of December 29, 1954, the petitioners No. 2 to 4 were arrested by the respondent No. 2, S. K. Srivastava, and a Rummaging Inspector of the name of D. G. Banerjee. They were detained over night in the Customs House by the said respondent No. 2. 4. On the night of December 29, 1954, the petitioners No. 2 to 4 were arrested by the respondent No. 2, S. K. Srivastava, and a Rummaging Inspector of the name of D. G. Banerjee. They were detained over night in the Customs House by the said respondent No. 2. They were produced before the Chief Presidency Magistrate, Calcutta, on the next day on the allegation that they had been arrested under Section 173 of the Sea Customs Act and they were released on bail under order of the Chief Presidency Magistrate. I am not concerned with the proceeding before the Chief Presidency Magistrate because ultimately the petitioners were not proceeded against in crime and were discharged by the Chief Presidency Magistrate, on April 2, 1955. 5. In the meantime, on January 24, 1955, the respondent No. 2, S. K. Srivastava, caused a notice to be served on the petitioner No. 3, Janaki Nath Sen, whereby the petitioners were called upon to show cause why the gold leaves seized by the Customs should not be confiscated and penal action taken under Section 167 (8) of the Sea Customs Act and further called upon the petitioner No. 3, to show cause how he came in possession thereof. The petitioner No. 3, Janki Nath Sen, showed cause, on January 27, 1958, stating that the gold leaves were purchased by the petitioner No. 1 company in regular course of business and were duly entered in the books of accounts of the petitioner No. 1 company. 6. On April 19, 1955, the said respondent No. 2, S. K. Srivastava, caused service of another notice on the petitioner No. 1 company calling upon it to show cause, how it came to possess bullions in the shape of gold bars and gold coins bearing inscriptions indicative of foreign orgin and why penal action should not be taken against it under Sections 167 (8) and 39 of the Sea Customs Act. The petitioner company showed cause through its Director, petitioner No. 2, on April 27, 1955, denying that the coins bore marks of foreign origin and stating that the bullion and coins in their possession were of Indian origin and were purchased in Indian market. 7. The petitioner company showed cause through its Director, petitioner No. 2, on April 27, 1955, denying that the coins bore marks of foreign origin and stating that the bullion and coins in their possession were of Indian origin and were purchased in Indian market. 7. On or about July 1, 1955, there were separate notices caused to be served by respondent No. 2, S. K. Srivastava, on the petitioners calling upon them to show cause why they should not be penalised for being the persons concerned with the offence under Section 167 (8) of the Sea Customs Act. In the said notices it was indicated that the petitioners were the persons concerned in importations of gold delivered to them from time to time by one W. B. Zadkar, in accordance with a well-planned arrangement. It was further alleged in the said notices that Zadkar had admitted having carried smuggled gold to the petitioner company each time in one or two boxes full of gold bars and that in this way delivered an "assumed" quantity of 3000 tolas of smuggled gold prior to December 29, 1954. The aforesaid admission was said to have been obtained from Zadkar by respondent No. 2, S. K. Srivastava. 8. In the cause shown by the petitioners, on July 7, 1955, they denied having received smuggled gold as alleged. They also stated that they did not know any person of the name Zadkar and denied having had any arrangement with him for carriage and delivery of smuggled gold. They called upon the respondent No. 2, S. K. Srivastava to produce Zadkar and allow to the petitioners opportunity to cross-examine him. They emphasised to have lawfully acquired the gold, seized by the Customs authorities, in the ordinary course of business and stated that the entries regarding acquisition of gold were to be found in their books of accounts. The case aforementioned was shown to S. K. Srivastava abovenamed. 9. The opportunity prayed for by the petitioners to examine Zadkar was not allowed to the petitioners. Nevertheless, one Rangaswami, who, at the material time, was the Additional Collector of Customs, and did the adjudication, imposed a penalty of Rs. 3,00,000/- on the petitioner No. 1 company and further imposed a penalty of Rs. 50,000/- on each of the petitioners Nos. The opportunity prayed for by the petitioners to examine Zadkar was not allowed to the petitioners. Nevertheless, one Rangaswami, who, at the material time, was the Additional Collector of Customs, and did the adjudication, imposed a penalty of Rs. 3,00,000/- on the petitioner No. 1 company and further imposed a penalty of Rs. 50,000/- on each of the petitioners Nos. 2, 3, 4 and 5, being of the opinion that the petitioner company and each of its directors were guilty of the offence under Section 167 (8) of the Sea Customs Act. The said order was dated June 14, 1955. 10. By two several orders, being Nos. 68 and 69, also passed by Rangaswami abovenamed, both dated June 15, 1956, the gold pieces bearing impression "S. L. Sen" were ordered to be confiscated under Sec. 167 (8) of the Sea Customs Act, inasmuch as they were found to be of the fineness of foreign gold smuggled into India but the gold pieces bearing impression "Habib Bank" and coins which were either Murshidabad coins or sovereigns or gold mohurs were ordered to be released. Also the gold leaves were ordered to be confiscated because those were also found to be of the refinement of foreign gold and in the absence of satisfactory explanation as to their acquisition were held to have been smuggled into India. No order was passed regarding either confiscation or release of the gold bullions seized by the Customs authorities. 11. Against the orders aforesaid the petitioners moved this Court, under Article 226 of the Constitution, and obtained a Rule being Matter No. 160 of 1956. That Rule came up for hearing before P. B. Mukherji, J., on March 18, 1958, and was disposed of by consent of the parties on the following terms :- "By consent, the Rule is disposed of on the following terms : 1) The Customs Authorities are to supply the petitioner a copy of the statement of Zadkar and a copy of the Chemical Test Report within a fortnight. 2) Customs authorities will arrange for the examination of the pieces of gold bar leaves and coins to be selected by the petitioners out of gold lying in custody of the Customs for examination and assaying in the Government Mint, Alipore. 2) Customs authorities will arrange for the examination of the pieces of gold bar leaves and coins to be selected by the petitioners out of gold lying in custody of the Customs for examination and assaying in the Government Mint, Alipore. Customs authorities will also have option of selecting other pieces in the presence of the petitioners out of the gold lying in their custody for such examination and assaying in the Govt. Mint. The petitioners are to pay for all expenses of such examinations and assaying. Such examination and assaying is to be effected within a fortnight after the aforesaid statement and Report are supplied to the petitioners by the Customs authorities. 3) A fortnight after the examination and assaying, of the gold aforesaid, the Collector of Customs would give the petitioners a hearing and allow the petitioners to cross-examine Zadkar, if possible, 4) Gold Coins etc. which have been ordered to be released under Order No. 60 by the Customs authorities and are to be returned to the petitioners if the same had not already been returned. 5) The petitioners will not be entitled to challenge or raise any objection to the various notices to show cause served on the petitioners and in particular will not be entitled to take any objection regarding the omission of the Export Import Control Act being mentioned in the said show cause notices. 6) No order as to costs." 12. Thus ended the first Chapter of the attempt on the part of the Customs authorities to penalise the petitioners for large-scale smuggling of foreign gold into India. 13. Pursuant to the order made by this Court, an Assistant Collector of Customs forwarded to the petitioners copies of :- a) two statements dated December 29, 1954 and January 7, 1955, alleged to have been mads by Zadkar, and recorded by the respondent No. 2, S. K. Srivastava. b) the Chemical examiner's reports on the refinement of the seized gold. 14. In further pursuance of the order dated March 18, 1958, the petitioners were called upon to select samples out of the seized gold and to deposit costs for examination and assay thereof by the Government of India Mint. Samples were drawn both by the petitioners and a Customs officer for examination by the Government of India Mint. The assay certificates were forwarded to the petitioners on or about June 3, 1958. Samples were drawn both by the petitioners and a Customs officer for examination by the Government of India Mint. The assay certificates were forwarded to the petitioners on or about June 3, 1958. According to the certificate the fineness of the samples varied from 947.5 to 992.7. This according to the petitioners is the usual fineness of local gold. 15. Although the gold was examined as directed by order, dated March, 18, 1958, the matter was not taken up for adjudication nor was any opportunity given to the petitioners to cross-examine Zadkar. The petitioners sent a reminder to the Additional Collector of Customs on September 2, 1958 and in that letter requested the authorities to return the seized gold, if under the assay certificates further prosecution of the case became unnecessary. No reply was given to that letter. Again on May 15, 1959, the petitioners caused another letter to be written both to the Additional Collector and Assistant Collector of Customs asking for the return of the gold and also certain books of account, which had also been seized and in that letter intimated that in case of non-compliance with the demand legal action would be taken by them. The only reply that the petitioners received to that letter was to the effect that the matter was receiving attention. No further communication followed thereafter. In these circumstances the petitioners had to apply before this Court, under Article 226 of the Constitution, asking for a writ of certiorari for quashing the order, dated June 14, 1956, and orders No. 68 and 69, both dated June 15, 1956, or alternatively for a writ of mandamus commanding the Customs authorities to give a hearing to the petitioners on the basis of the order made by this Court, dated March 18, 1958, and also for a writ of mandamus directing the Customs authorities to return the gold wrongfully seized and also the books of account taken in custody by the Customs authorities. The petitioners obtained a Rule which was numbered as Matter No. 20 of 1960. That Rule was disposed of by Ray, J., also by consent, on January 9, 1961, inter alia, on the following terms :- (i) the gold which was the subject-matter of the adjudication would remain with the Customs authorities until the adjudication was completed. The petitioners obtained a Rule which was numbered as Matter No. 20 of 1960. That Rule was disposed of by Ray, J., also by consent, on January 9, 1961, inter alia, on the following terms :- (i) the gold which was the subject-matter of the adjudication would remain with the Customs authorities until the adjudication was completed. But the remaining quantities of gold must be returned to the petitioners within 3 weeks from the date of the order. (ii) The personal hearing to be given to the petitioners must be completed by March 31, 1961. (iii) The Customs authorities must comply with all other directions contained in the consent order, dated March 18, 1958, not complied with until then. 16. Thus ended the second Chapter of the proceeding started against the petitioners on charges of smuggling gold. 17. Pursuant to the consent order, dated January 9, 1961, the petitioners caused a letter to be sent to the Customs authorities asking for the return of the gold which was not the subject-matter of the adjudication. No reply was sent to that letter until January 30, 1961. In the meantime, however, by a letter, dated January 21, 1961, the petitioners were informed that they would be granted a personal hearing by the Additional Collector of Customs on February 15, 1961. Along with the said letter five statements, said to have been made by Zadkar and recorded by respondent No. 2, S. K. Srivastava, were sent to the petitioners as also copy of a letter of reply given by Zadkar, dated January 7, 1955. The letter further informed the petitioners that at the personal hearing certain informers would be produced for the purpose of identifying Zadkar, who would be present at the hearing and the said informers would be examined in the presence of the Directors of the petitioner No. 1 company, who would also be given an opportunity to cross-examine them. The letter further informed the petitioners that at the personal hearing certain informers would be produced for the purpose of identifying Zadkar, who would be present at the hearing and the said informers would be examined in the presence of the Directors of the petitioner No. 1 company, who would also be given an opportunity to cross-examine them. Thereafter, on January 13, 1961, the Solicitors for the Customs authorities wrote to the Solicitors for the petitioners that the 306.8 tolas of gold, directed to be returned to the petitioners by the order, dated January 9, 1961, were not outside the subject-matter of adjudication but did form subject-matter thereof and that the Solicitors for the Customs authorities would have the matter mentioned before Ray, J., on February 2, 1961, for the purpose of clarification of the order, dated January 9, 1961. On the matter being mentioned before Ray, J., his Lordship expressed the desire to hear matter No. 20 of 1960 afresh. 18. The Solicitors for the petitioners, however, did not remain idle while these things were happening. By their letter, dated January 31, 1961, they called upon the Customs authorities to comply with the terms of the order, dated January 9, 1961, and also recorded their objection to the use of the alleged further statements by Zadkar, which they characterised as concocted and procured as a result of afterthought. It was also emphasised in the said letter that the petitioner would object to the use of the same by the Customs authorities. By a separate letter, bearing the same date, the Solicitors for the petitioners demanded return of the gold in terms of the order, dated January 9, 1961. 19. Matter No. 20, 1960 thereafter came up for rehearing before Ray, J. By an order, dated March 10, 1961, his Lordship directed as follows :- a) The Customs authorities must forthwith to comply with the consent order dated March 18, 1958, including the order to make a fresh adjudication. b) The Customs authorities shall not rely on any statement made by Zadkar save and except the two statements, copies of which were furnished to the petitioners in the year 1958. c) The Customs authorities must return to the petitioners all books of account of the petitioner company, which had been seized by them. b) The Customs authorities shall not rely on any statement made by Zadkar save and except the two statements, copies of which were furnished to the petitioners in the year 1958. c) The Customs authorities must return to the petitioners all books of account of the petitioner company, which had been seized by them. d) The Customs authorities must return to the petitioners all the gold lying with them save and except the gold coins bearing the mark "S. L. Sen" and the gold leaves which were confiscated by the two orders Nos. 68 and 69, dated June 15, 1956, which were the subject-matter of the adjudication. 20. Thus ended the third chapter of the long drawn adjudication proceedings against the petitioners on the charge of smuggling gold. 21. By a letter, dated March 25, 1961, the petitioners were informed that the Additional Collector of Customs would grant a hearing to the petitioners, on April 4, 1961, in the matter of the aforementioned adjudication proceeding. There was a rider added to the letter to the effect that the adjudication proceeding would be conducted without prejudice to the rights and contentions of the Customs authorities in the appeal that might be preferred by them against the order, dated March 10, 1961, passed in Matter No. 20 of 1960. The Additional Collector, mentioned in the letter, admittedly refers to respondent No. 2, S. K. Srivastava. At the hearing given on April 4, 1961, the petitioners Nos. 3 and 5 along with their advocate Sri N. L. Dutta were present and made their submissions, inter alia, on the two statements of Zadkar, at first supplied to the petitioners. Zadkar himself was not produced at the hearing for cross-examination. According to the petitioners the hearing was concluded on that date and that fact they caused to be recorded by a letter on the same date. The allegation of conclusion of the hearing is, however, disputed in the affidavit-in-opposition and the dispute is based on a letter written by respondent No. 2, S. K. Srivastava, to the Advocate for the petitioners, bearing the date April 4, 1961, a relevant extract from which is set out below :- " * * * * 2. The allegation of conclusion of the hearing is, however, disputed in the affidavit-in-opposition and the dispute is based on a letter written by respondent No. 2, S. K. Srivastava, to the Advocate for the petitioners, bearing the date April 4, 1961, a relevant extract from which is set out below :- " * * * * 2. It was pointed out to you that Sri W. B. Zadkar had turned up in the Customs House on 15-2-61 at 11 A. M. when the personal hearing was fixed for the first time in connection with the present case. You are also informed that Shri Zadkar had been informed to be present in the Custom House in connection with hearing. I would like to know if you want to dispense with Shri Zadkar's presence. In the alternative, we shall make one more effort to have Shri Zadkar present on another date which will be communicated to you shortly. 3. A reference about the informer in the present case also came up. I offered to present the informer and you were eager to examine him. I am arranging to present the informer as well before your clients on the next date of hearing. 4. In the course of the hearing, a statement was made that at 164 Cotton Street, only the Bengali employees of your clients' firm were residing at the material time. Kindly confirm if this was so. I would also like to know the names of the Bengali employees who were residing in the premises and also of the non-Bengalees, if any, who were residing therein. 5. At the time of the hearing you made submissions only with regard to the two statements of Shri W. B. Zadkar even though it was pointed out to you that the High Court order referred to two statements of Mr. W. B. Zadkar and the report, copies of which have already been supplied." 22. Each one of the statements contained in the above-quoted letter was disputed by the Solicitors for the petitioners, in their letter dated April 10, 1961, and they objected to the procedure proposed by respondent No. 2, S. K. Srivastava, and also called upon him to publish his decision forthwith. 23. It is unfortunate that this type of dispute at all arises. 23. It is unfortunate that this type of dispute at all arises. Whether the hearing was concluded on April 4, 1961 or was postponed for further hearing to a later date the order sheet should have shown. Curiously enough the Customs authorities do not rely, in this Rule, on their own order-sheet but on the letter, dated April 4, 1961, hereinbefore quoted. Whether that letter was an afterthought or not is difficult for me to say. But I feel constrained to observe that the petitioners may have some grievance on this point. They might not have made their submissions of the statements of Zadkar on April 4, 1961, had they known that an attempt would be made to produce him later on, with the possible object of demolishing their submissions and arguments. Whether the hearing was actually concluded on April 4, 1961 or not, I am of the opinion, a reasonable procedure was not observed at the hearing and that has created all the difficulties. 24. Respondent No. 2, S. K. Srivastava, did not pay any heed to the objection raised by the petitioners and by his letter, dated April 21, 1961, he informed the Solicitors for the petitioners that he would hear the alleged informers on April 29, 1961 and offer opportunities to the petitioners to be present at the hearing and cross-examine the said informers. The examination of the informers was sought to be justified on the ground that the show-cause memorandum, dated July, 1, 1955, started with the words "on receipt of reliable information". It was further stated in the said letter that Zadkar was being requested to be present on the same date and that the petitioners would be at liberty to cross-examine him if he appeared. 25. At the hearing on April 29, 1961 the petitioners were represented by their solicitor Sri A. K. Dey of Messrs. R. K. Dey and Co., Solicitors. He raised a two-fold objection to the effect that, (1) Respondent No. 2, S. K. Srivastava, having acted as the prosecutor in the matter should not adjudicate upon the matter and decide the same and (2) The informers should not be examined at that stage, firstly, because it was beyond the scope of the order of the High Court and secondly, because the endeavour to examine the informers was a new thing which was being tried at that later stage. 26. 26. Respondent No. 2, S. K. Srivastava, overruled both the objections. Thereupon, Mr. Dey asked for an adjournment of the enquiry so as to enable the petitioner to move the High Court. That prayer also was refused by S. K. Srivastava. Thereafter, the respondent No. 2, S. K. Srivastava examined two persons, one of whom was named S. K. Sen, an employee in the Customs department and the other was the alleged informer, Bira Singh. Curiously enough Zadkar was not produced for cross-examination by the petitioner on that date. The objections made on behalf of the petitioners as above-stated, were recorded by the Solicitor for the petitioners in their letter, dated April 29, 1961. To that letter Srivastava gave a reply, D/-1-5-1961, denying the statements made in the letter, dated 29-4-1961, and further alleging that the Solicitors for the petitioners had declined to cross-examine the witnesses on the ground that his prayer for adjournment of the case had been refused. Correspondence in this line further continued. 27. Thereafter, on May 13, 1961, there was another date of hearing fixed and on that date Zadkar was produced for cross-examination. The counsel for the petitioners reiterated the objections that respondent No. 2, S. K. Srivastava was incompetent to be the adjudicator by reason of the part played by him in prosecuting the petitioners and without prejudice to the aforesaid contention cross-examined Zadkar in course of his cross-examination stated, inter alia, that he did not know contents of any of the packets carried by him nor did he know the name of the persons to whom the packets were to, have been delivered. Nor did he know whether any of the said persons, who took delivery of the packets, were connected with any firm or company. The recording of the deposition, however, as made by respondent No. 2, S. K. Srivastava contained the erroneous recording that Zadkar had carried gold. The word 'gold' was erroneously recorded in several places of that deposition and not in one place only. Objection was taken to the wrong recording on behalf of the petitioners and there is no dispute now that the use of the word 'gold' was an embellishment in the recording of the deposition and Srivastava in his adjudication order clearly conceded the erroneous recording. Objection was taken to the wrong recording on behalf of the petitioners and there is no dispute now that the use of the word 'gold' was an embellishment in the recording of the deposition and Srivastava in his adjudication order clearly conceded the erroneous recording. On the evidence as aforesaid, the adjudication proceeded and resulted in the order, dated June 12, 1961, which is the impugned order in this Rule. By that order respondent No. 2, S. K. Srivastava, held as follows : "In the aforesaid circumstances, I hold that the seized gold leaves and the gold coins are made out of the smuggled gold which was not brought in the ordinary course of business and that the said gold had been imported into. India in contravention of the Government of India Notification No. 12 (II) FI/48 dated 25-8-48 (as amended) issued in pursuance of Section 8 of the Foreign Exchange Regulation Act and under Section 19 of the Sea Customs Act and that as such they are liable for confiscation under S. 167 (8) of the Sea Customs Act as read with Section 23A of the Foreign Exchange Regulation Act." and on the aforesaid finding he imposed the following penalties severally on the petitioners: "1. I impose under Section 167 (8) of the Sea Customs Act as read with Section 23A of the Foreign Exchange Regulation Act as personal penalty of Rs. 5,00,000 (Rupees five lakhs) only on Messrs Shamlal Sen (Private) Limited for being persons concerned in the illegal importation of not less than 3,000 tolas of gold in association with Shri W. B. Zadkar and others; 2. I impose a personal penalty of Rs. 3,00,000/- (Rupees three lakhs only) each on Messrs. Sitanath Sen, Janaki Nath Sen, Sankar Lal Sen and Tarak Nath Sen for being the persons concerned in the illegal importation of the aforesaid not less than 3,00 tolas of gold; and 3. I confiscate the gold leaves and the gold coins bearing the inscription 'S. L. Sen' absolutely under Section 167 (8) of the Sea Customs Act read with Section 23A of the Foreign Exchange Regulation Act." 28. The propriety of the order is being disputed in this Rule by the petitioners, who have asked for a Writ of Certiorari for quashing the order and for a consequential writ of mandamus for the return of the confiscated gold. 29. Mr. The propriety of the order is being disputed in this Rule by the petitioners, who have asked for a Writ of Certiorari for quashing the order and for a consequential writ of mandamus for the return of the confiscated gold. 29. Mr. Meyer, learned Advocate for the petitioners, contended with great emphasis that by reason of the part played by respondent No. 2, S. K. Srivastava, in seizing the gold from the petitioners, in arresting the Directors of the petitioner company, in charging them with the offence of smuggling gold, in collecting evidence against them and in using such evidence in proof of their alleged offence, he became incompetent to act as the judge or the adjudicator. He could not play the double role of the judge and the accuser and the penalty imposed by him must be set aside, it not for anything else only for that reason. He contended in the next place that respondent No. 2 S. K. Srivastava, was highly prejudiced or biased against the petitioners and that was an additional disqualification in him to be a judge of the petitioners. He further contended that judging with a prejudiced mind, the respondent No. 2, S. K. Srivastava depended on surmises and conjectures in lieu of evidence and found the petitioners guilty of the offence. That was another infirmity with the order of adjudication for which, he contended, it should be quashed. 30. The first branch of the argument advanced by Mr. Meyer deserves serious consideration. The principle that no man shall be the judge of his own cause and the least of all the prosecutor himself is a principle of fair play which should not be disregarded. The two-fold position of a prosecutor and a judge in one man is a manifest contradiction. The undesirability of allowing the prosecutor to be the judge has been stated and restated in noble language both in England and this Country and hereinbelow I recount a few of them. 31. In the case of R. v. Lee, (1882) 9 QBD 394, Field, J. observed : "There is no warrant for holding that, where the Justice has acted as a member by directing a prosecution for an offence under the Act, he is a sufficiently disinterested person so as to be able to sit as a Judge at the hearing of the information." 32. Then again, there is the observation of Lord Justice Bewen in Leeson v. Genreal Council of Medical Education and Registration, (1889) 43 Ch. D 366 at page 384 to the effect : "* * * nothing can be clearer than the principle of law that a person who has judicial duty to perform disqualifies himself for performing it if he has a pecuniary interest in the decision which he is about to give, or a bias which renders him otherwise than an impartial Judge. If he is an accuser he must not be a Judge." 33. Also there is the observation of Lord Esher in Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750 at p. 758, which is set out below : "The question is not, whether in fact he was or was not biased. The Court cannot enquire into that. There is something between these two propositions. In the administration of justice, whether by a recognised legal Court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biassed." 34. Eve, J., in the case of Law v. Chartered Institute of Patent Agents (1919) 2 Ch 276 at p. 289, made a similar observation : "If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay, more (so jealous is the policy of our law of the purity of administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists. One such circumstance which has always being held to bring about disqualification is the fact that the person whose impartiality is impugned has taken part in the proceedings, either by himself or his agent, as prosecutor or accuser." 35. The principle that bias disqualifies a person from acting as a Judge has also been reiterated by Viscount Cave L. C. in Frome United Breweries Co. The principle that bias disqualifies a person from acting as a Judge has also been reiterated by Viscount Cave L. C. in Frome United Breweries Co. Ltd. v. Justices of Bath, (1926 AC 586) and by Lord Thankerton in Franklin v. Minister of Town and Country Planning, 1948 AC 87. The view of law in this country is not different. In the case of State of U. P. v. Mohammed Nooh, 1958 SCA 73 : ( AIR 1958 SC 86 ) the respondent, an officiating Head Constable, was charged with having forged a letter purporting to select him for training at the Police Training College. He was suspended and departmentally tried under the Uttar Pradesh Police Regulation. , B. N. Bhalla, a District Superintendent of Police, presided at the trial and also gave evidence against the Constable condemning this type of conduct. Das, C. J. used strong language in deprication and observed : "There can be no escape from the conclusion that Sri B. N. Bhalla should not have presided over the trial any longer. * * * Having pitted his evidence against that of Mohammed Khalil, Sri B. N. Bhalla vacated the Judge's seat and entered the area as a witness. The two roles could not obviously be played by one and the same person. * * * It is futile to expect that he could in the circumstances hold the scale even." 36. The same view was again expressed by the Supreme Court in the case of Gullapalli Nageswararao v. State of Andhra Pradesh, AIR 1959 SC 1376 : "The principles governing the 'doctrine of bias" vis-a-vis judicial tribunals are well-settled and they are : (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is 'subject to a bias (whether financial or other) in favour of, of against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal'; and that 'any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it be sufficiently substantial to create a reasonable suspicion of bias'. The said principles are equally applicable to authorities, though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others i.e., authorities who are empowered to dis-charge quasi-judicial functions. The said principles are accepted by the learned Counsel on both sides;" 37. Mr. G. P. Kar, learned Advocate for the Customs authorities did not dispute the soundness of the aforesaid proposition. He argued, however, the proposition admitted of three exceptions, namely, (i) When a statute confers a power on an authority to be a judge of his own cause or to decide a dispute in which he has an official bias, the doctrine of bias is qualified to the extent of the statutory authorisation. (ii) A judge who would otherwise be disqualified may act in a case of necessity, where no other judge has jurisdiction. (iii) When there has been a waiver of the objection to the jurisdiction. The first of the exceptions, hereinbefore referred to, finds some support from certain observations of the English Court of Appeal in Rex. v. Bath Compensation Authority, (1925) 1 KB 685. In that case, the licensing justices of a borough referred the application for renewal of the licence of a hotel to the compensation authority of the borough and also resolved that a solicitor should be instructed to appear before the compensation authority and oppose the license on their behalf. The opposition succeeded and the renewal of the license was refused by the compensation authority subject to payment of compensation. The majority of the justices who sat on the Compensation Tribunal and voted against the renewal of the license had as members of the Committee of Licensing Justices been parties to the resolution referring the question of renewal to the compensation authority. The majority of the justices who sat on the Compensation Tribunal and voted against the renewal of the license had as members of the Committee of Licensing Justices been parties to the resolution referring the question of renewal to the compensation authority. The Court of Appeal (Atkin L. J. alone dissenting) held, that in view of the provisions of the Licensing Act 1910, the facts of the case did not disclose such bias or likelihood of bias as would disqualify them from sitting on the Tribunal. This decision, however, was reversed on appeal by the House of Lords (reported in 1926 AC 586 in which Viscount Cave L. C. met the argument based on Statutory duty with the following observations : "No doubt the statute contemplates the possibility of the licensing justices appearing before the compensation authority and taking part in the argument; for it is provided by S. 19, subsection 2, that the compensation authority shall give any person appearing to them to be interested in the question of the renewal of a license, 'including the licensing justices' an opportunity of being heard. But the statute nowhere says that justices who elect to appear as opponents of the renewal and take active steps (such as instructing a solicitor) to make their opposition effective may nevertheless act as judges in the dispute; and 'in the absence of a clear provision' to that effect I think that the ordinary rule that no one can be both party and a judge in the same cause holds good" (underlined (here in ' ') by me for emphasis). Explaining the limitation of the doctrine propounded by the aforesaid decision, in its application to India, the Supreme Court observed in the case of Gullapalli Negesswara Rao, AIR 1959 SC 1376 (supra) as follows : "This decision, therefore, is an authority for the proposition that, unless the legislature clearly and expressly ordained to the contrary, the principles of natural justice cannot be violated. In Rex v. Leicestar Justices, 1927-1 KB 557, a case also arising under the Licensing (Consolidation) Act, 1910, the King's Bench Division held that the mere fact that the licensing justice has originated an objection to the renewal of a licence does not disqualify him by reason of interest from sitting and adjudicating as a member of that authority upon the matter of that licence. Salter, J. brought out the distinction between the 1925-1 KB 685 and the case before him in the following terms, at p. 565 : 'The distinction is that, in that case. Parliament had not sanctioned what was done; in this case it has.' Dealing with the argument that there was some risk of bias if the statutory duty was discharged, the learned Judge rejected it with the observation that some risk of bias is inseparable from the machinery which Parliament has set up'. At first sight this judgment appears to be inconsistent with the decision of the House of Lords in Rex v. Bath Compensation Authority's case, 1925-1 KB 685 (Reported as Frome United Breweries Co., Ltd. v. Bath Justices, in 1926 AC 586), but a scrutiny of the latter case shows that in that case the licensing justices had themselves actively opposed that renewal of the licence before the compensation authority and instructed a solicitor to do so on their behalf. This is not a duty cast on them by the statute whereas the licensing justices in dealing with an application for renewal of a license and, when the question of renewal was referred for decision to the compensation authority, in sitting as members of that authority are merely carrying out the duties in accordance with the procedure prescribed by the legislature. These decisions show that in England a statutory invasion of the common law objection on the ground of bias is tolerated by decisions, but the invasion is confined strictly to the limits of the statutory exception. It is not out of place here to notice that in England the Parliament is Supreme and therefore a statutory law, however repugnant to the principles of natural justice, is valid, whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution." Therefore, in the absence of "clear provision" or unless "the legislature clearly and expressly ordained to the contrary" and unless standing "the test of fundamental rights declared in Part III of the Constitution" no departure from the principle that the prosecutor shall not also be the Judge can be permitted. 38. Mr. 38. Mr. Kar invited my attention to the provisions of Sections 6, 169, 173 and 182 of the Sea Customs Act and relying on those sections contended that it was possible for a Customs Officer, who was concerned in the investigation and the prosecution of an offender, also to be the adjudicator of penalties. This argument is not very well-conceived. Section 6 provides for the appointment of Customs Officers and authorises them "to exercise the powers conferred and perform the duties imposed" by the Act. Under Section 6 there is a notification, being notification No. 6 Cus., dated January 18, 1952 (as amended from time to time) the material portion of which reads as follows : "In exercise of the powers conferred by S. 6 of the Sea Customs Act, 1878 (VIII of 1878), and in supersession of all previous notifications on the subject, the Central Government hereby appoints each of the officers specified in the Second Column of the Schedule hereto annexed to be the Chief Customs Officers of Sea Customs and Customs Collector for the post or posts specified against the name in the corresponding entry in the third column thereof, and to exercise the powers conferred and perform the duties imposed by the said Act on such officers. SCHEDULE Serial No. Description of Officer. Port or Ports. 1 The Collector and Additional Collector of Customs, Calcutta. The port of Calcutta and the ports of port Blair and Car Nicobar in the Islands of Anandaman and Nicobar. .... .... .... .... .... .... Further there is another notification being No. 75-Cus., dated August 19, 1950, as amended by notification No. 1-Cus., dated January 9, 1954, which reads as follows : "In exercise of the powers conferred by S. 6 of the Sea Customs Act, 1878 (VIII of 1878), the Central Government is pleased to appoint all Appraisers and Examining Officers of the Appraising Department, all Inspectors, Preventive Officers Women Searchers and Peons of the Preventive Department and Ministerial Officers borne on the establishment of the Customs Department in Calcutta to be officers of Customs and to exercise the powers conferred and perform the duties imposed by the said Act On such officers." 39. Also there is another notification being notification No. 199-Cus., dated September 2, 1957 as amended by notification No. 12-Cus., dated January 18, 1956, which reads as follows : "In exercise of the powers conferred by Section 6 of the Sea Customs Act, 1878, (VIII of 1878), the Central Government hereby appoints the Ministerial Officers in charge of individual departments and preventive Inspectors in Bombay, Calcutta, Madras, Cochin and Visakhpatnam Customs Houses to be Customs Collectors for their respective ports and to exercise the powers conferred and perform the duties imposed by the said Act upon Customs Collectors." Section 9 of the Act deals with powers to make rules and reads as follows: - "The Chief Customs Authority may from time to time make rules consistent with this Act- (a) prescribing and limiting the powers and duties of Officers of Customs, (b) regulating the delegation of their duties by such officers, and (c) generally to carry out the provisions of this Act." Under Section 9 of the Act there is a notification, being notification No. 178-Cus., dated May 31, 1958, which is set out below : - "In exercise of the powers conferred by Section 9 of the Sea Customs Act, 1878 (VIII of 1878), as in force in India and as applied to the State of Pondicherry, the Central Board of Revenue makes the following rule prescribing and limiting the powers and duties of officers of Customs at the ports of Bombay, Calcutta, Madras, Cochin, Visakhpatnam and Kandla, namely :- All Customs Collectors and other Officers of Customs at the ports of Bombay, Calcutta, Madras, Cochin, Visakhpatnam and Kandla are required to prevent smuggling and are authorised to exercise all the powers conferred by Chapter XVII of the Sea Customs Act, 1878 on officers of Customs duly employed in the prevention of smuggling." Chapter XVII of the Sea Customs Act deals with "Procedure relating to Offences, Appeals, etc." Section 169 in the aforesaid Chapter of the Act confers on officers of Customs, duly employed in the prevention of smuggling, power to search any person on board of any vessel in any port in India or within the Indian Customs Waters or any person who has landed from any vessel on reasonable suspicion. Section 173 in the same Chapter of the Act authorises any officer of Customs or any other person employed in the prevention of smuggling to arrest any person reasonably suspected to be guilty of any offence under the Act. Section 182, also in the same Chapter of the Act, deals with adjudication of confiscations and penalties and reads as follows : - "In every case, except the cases mentioned in Section 167, Nos. 26, 72 and 74 to 76, both inclusive, in which, under this Act, anything is liable to confiscation or to increased rates of duty; or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged - (a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector; (b) up to confiscation of goods not exceeding two hundred and fifty rupees in value, and imposition of penalty or increased duty, not exceeding one hundred rupees, by an Assistant Commissioner or Assistant Collector of Customs; (c) up to confiscation of goods not exceeding fifty rupees in value, and imposition of penalty or increased duty not exceeding ten rupees, by such other subordinate officers of Customs as the Chief Customs authority, may, from time to time, empower in that behalf in virtue of their office: Provided that the (Chief Customs authority) may, in the case of any officer performing the duties of a Customs Collector, limit his powers to those indicated in clause (b) or in clause (c) of this section, and may confer on any officer by name, or in virtue of his office, the powers indicated in clauses (a), (b) or (c) of this section." 40. There is nothing contained in aforesaid provisions of the Sea Customs Act, on which Mr. Kar so much relied, and also nowhere else in the said Act which clearly and expressly provide that an officer may be the Judge of the adjudicator in a cause in which he is himself the prosecutor or the accuser. The afore-quoted provisions of the Act are merely enabling provisions authorising different officers of the customs to exercise the powers conferred and perform the duties imposed by the Act. The afore-quoted provisions of the Act are merely enabling provisions authorising different officers of the customs to exercise the powers conferred and perform the duties imposed by the Act. That by itself does not indicate that an officer of the Customs, although he may adjudicate upon any other matter, may also be a judge in a matter in which he had or has been acting either as the prosecutor or as the accuser. The first of the exceptions to the rule that an accuser may be the judge in his own cause, if statutorily authorised, is not statutorily recognised under the scheme of the Sea Customs Act. 41. I turn now to the second of the exceptions to the rule argued by Mr. Kar. The rule that a Judge, who would otherwise be disqualified, may act in a case of necessity where no other Judge has jurisdiction is a rule of common law which has been several times defended but the occasions in which it has been put into operation are few. In Marshall's book on 'Natural Justice' there is a collection of authorities beginning from 1429 to 1877 in which the necessity rule was recognised as an exception to the principle of natural justice, namely, that no man shall be the judge of his own cause. I set out below a relevand quotation from that view:- "(i) a decision in 1429 (Y. B. 8 Hen, VI, 19; 2 Roll. Abr. 93) that it was no objection to the jurisdiction of the Common Pleas that an action was brought against all the Judges of the Common Pleas in a case in debt which could only be brought in that Court; (ii) a statement in 1742 in the case of the Parishes of Great Charte and Kennington, (1742) 2 Stra 1173, that 'as to the case of corporations they said that if it appeared there were no other justices it might be allowed to prevent a failure of justice.' * * * (iii) * * * (iv) a statement by Lord Cranworth L. C. in 1858 in the House of Lords in the case of London and North Western Railway Co. v. Lindsay, (1858) 3 Macq 114, which . v. Lindsay, (1858) 3 Macq 114, which . appears to support the rule notwithstanding the then recent decision of the House in Dimes' Case: 'I do not think that any legislative interference can be necessary in the case of appeals to this House, for according to that rule (i. e. the rule in Dimes' case) in almost every case the decision must be bad because the judgment is the judgment of the House itself, and there is we may depend upon it, in every case some one peer or other who has an interest in the case where a large company is concerned'. This dictum, while technically accurate, seems divorced from the realities of the situation in which a handful of law lords do all the appeal work of the House and the lay peers do not sit during such appeals or, if they do, do not vote; (v) the words of Lord Brougham in 1859 in the case of Thellusson v. Rendlesham (1859) 7 H. L. Cas. 429 * * * where he justifies the hearing of a case by a Judge (himself) who had previously been counsel in that case on the ground that not to do so would have caused great expense and delay and 'almost a denial of justice'; and (vi) a statement in Serjeant v. Dale (1877) a QBD 558, 566 by Lush, J. * * * that by the common law a judge who has an interest in the result of a suit is disqualified from acting except in case of necessity where no other judge has jurisdiction." 42. Equally well balanced are the authorities; against recognition of the exception founded on necessity and in Marshall's book on Natural Justice there is again a collection of cases beginning 1613 to 1864 in which great Judges refused to recognise the aforesaid exceptions to the principle of natural justice. Hereinbelow I set out the material passage from the book: "(a) The Earl of Derby's case x x x (1613) 12 Co Rep. 114 decided that the Chamberlain of Chester could not give a decision in a case in which he was involved but in such a case the suit should be heard in the Court of Chancery. This was a decision on the particular Court. 114 decided that the Chamberlain of Chester could not give a decision in a case in which he was involved but in such a case the suit should be heard in the Court of Chancery. This was a decision on the particular Court. The judges, however, laid down a general principle when they added: 'Where the particular Courts cannot do justice they shall sue in the King's general Court at Westminster.' (b) In Wood v. Commonalty of London, in 1701 (1701) 1 Salk. 397 it was held by Holt C.J. to which the rest agreed : '1st That the Mayor and Commonalty might have a bye law and limit the penalty to be forfeited to themselves; 2ndly That it might be sued for in the Court of the Mayor and Aldermen if the Mayor could be served and the Court held before the aldermen; thus the Chief Justice of the Common Pleas may bring an action in the C.B.; but then there must be a special entry, viz., Placita coram Johanne Blencowe milite etc. omitting the Chief Justice otherwise it would be erroneous 8 Hen. 6. 81. But so it is good for the other judges are a Court without him : so a Judge of the Common Pleas cannot take the consuance of a fine in his own case. 3rdly That if the Mayor was an integral part so as there could not be a Court without him, but it must be the Court of the Mayor and Aldermen it could not be sued for there; for then the same person was judge and plaintiff, agent and patient which could not be...... 4thty Though the Mayor absent himself, and the recorder sit for him and that by the custom of the city yet it alters not the case; for though the recorder sits personally and it is personally his judgment yet it is legally and virtually the act of the Mayor : the recorder his deputy and his act is the act of his superior : the style of the Court is coram majore. And a man cannot sue either before himself or his deputy'. (c) In the case of Foxham Tithing in Com. And a man cannot sue either before himself or his deputy'. (c) In the case of Foxham Tithing in Com. Wilts., * ** (1705) 2 Salk, 607 a justice of the peace was surveyor of the highway and, a matter which concerned his office coming into question at the sessions, he joined in making the order and his name was put in the caption. Holt C.J. said; "It ought not to be; as if an action be brought by the Chief Justice of the Common Pleas in the Court of Common Pleas the Placita must be coram Ed'ro Nevil Nil et Sociis suis and not coram Thomas Trevor etc.' and it was quashed. (d) In Dimes v. Grand Junction Canal (1852) 3 HLC 759 it will be remembered that it was held that the Lord Chancellor was disqualified by his interest from hearing an appeal from the Vice-Chancellor but that the decree of the Vice-Chancellor might be made the subject of appeal direct to the House of Lords. (e) In R. v. Allan, (1864) 4 B. and S. 915, at p. 924 xxx Blackburn, J. said : 'There may be difficulty in finding magistrates of this neighbourhood who are not interested to hear such an information, but members of the Association which institutes the prosecution must not act as judges upon it.' " 43. I have already observed that the exception to the principle of natural justice based on necessity has not been received favourably or enthusiastically in Courts of law and the aim of Courts has been directed more towards finding and establishing an alternative forum than towards upholding the judgment of the accuser, who had acted as the Judge. Necessity, it is true, knows no law but it is equally true that necessity is the mother of invention. 44. In a recent case before the Andhra Pradesh High Court reported in Nagamunaiah Chetty v. State Transport Authority, Andhra Pradesh, 1961 (1) Cri LJ 619 (Andh Pra) Seshachalapati, J. recognised the existence of the exceptions based on the ground of necessity in the following language: "The rule that no man should be a Judge in his own cause, is so well established and so often reiterated by the wisdom of Judges that it is unnecessary to cite authorities. The principle enshrined in the maxim 'Nemo Debet Esse Judex in Casus Propria Sua' is of the highest importance and any infraction of it would render the' proceedings wholly unsustainable. But this rule has certain exceptions such as (1) necessity (2) statutory provision removing the disqualification or making the investigator himself the Judge, (3) Waiver." 45. The ultimate decision of the case, however, was founded on waiver and his Lordship did not rely on the ground of necessity. 46. In the instant case, there is nothing to indicate that S. K. Srivastava, who is only an Additional Collector of the Calcutta Customs, must as of necessity have to determine the case of the petitioners. In the first place there is the Collector of Custom, who may be equally competent to determine the case against the petitioners and it he is also equally disqualified (which was at one time argued) it may not be impossible for the authorities to find out another officer to adjudicate the case against the petitioners, under section 182 of the Sea Customs Act. 47. I am not concerned in this Rule with the third exception to the rule of Natural Justice, as argued by Mr. Kar. The Petitioners took specific objection to the jurisdiction of respondent No. 2 to hear and determine the case against them and never waived the same. 48. That being the position in law, I am of the opinion that the respondent No. 2, S. K. Sri vastava, should not have taken part in the adjudication proceedings against the petitioners. Beginning from the stage of the search to the collection and use of evidence against the petitioners, respondent No. 2, S. K. Srivastava, has been much too closely associated with the accusation as to be able to maintain, the detachment of an adjudicator, He has descended to the arena and liable to have his vision clouded by the dust of conflict between the prosecutor and the defender. In the adjudication order respondent No. 2 S. K. Srivastava, no doubt observed as follows:- "Objections were raised against my being the Adjudicator in the present case on the ground that I could not be both the prosecutor and the Judge. I was alleged to have played the role of the prosecutor in the years 1954-56 as the Superintendent, Preventive Service. This allegation is incorrect. I was alleged to have played the role of the prosecutor in the years 1954-56 as the Superintendent, Preventive Service. This allegation is incorrect. Shri Zadkar has made clear in the cross-examination what role had been played by me. It was the role of an officer supervising certain investigations. The function of the investigator is not to connect evidence for roping in innocent persons. His function is to find out the truth and to take action in the light of the same. He has as much cause to feel proud of exonerating and clearing an innocent being as of seeing the guilty punished by virtue and the result of his investigations. The officer supervising the investigations has to see that the investigator sticks to the functions as defined above. In the present case Shri Zadkar, the most persecuted man in connection with the circumstances some of which apply also to the present case, himself has stated in the course of cross-examination that Customs were doing their duty alright. This statement cannot be lightly treated especially as it comes from a man who was not shown any consideration by the Customs authorities and who had at no time any illusion about being leniently treated by the said authorities. As expressed by him his mind is still disturbed since his troubles with the Customs Department have not yet ended. The propriety of a Customs Officer adjudicating a case after having participated in the investigation earlier was agitated in the Calcutta High Court in the Matter No. 140 of 1956. My action is not refraining from adjudicating the personal penalties and confiscation in the present case is in conformity with the judgment in the above case." 49. There is a sort of special pleading in the order in his own favour which must not be overlooked. He goes to the extent of relying upon a certificate given by Zadkar, who is himself not a highly meritorious person, to the effect that the Customs Officers are doing their duties all right. There is a sort of special pleading in the order in his own favour which must not be overlooked. He goes to the extent of relying upon a certificate given by Zadkar, who is himself not a highly meritorious person, to the effect that the Customs Officers are doing their duties all right. If the acts and conduct of respondent No. 2, S. K. Srivastava, are judged in the light of the principles of law governing the rule of natural justice that an accuser must not be a judge, it is difficult to say that he entertains no bias or that he is not enthusiastic in the matter of prosecution or that no body may reasonably suspect that he was prejudiced against the petitioners. An evidence of that prejudice may be seen when he imported the word 'gold' in the records of the proceedings taking down the evidence of Zadkar, even though Zadkar had not used the word himself. On protest being made he conceded that the recording was wrong and expressly declared it to be so in the adjudication order. That was good of him. But the question is why should such an error creep at all, unless he was himself seeing too much in the evidence of Zadkar. For the reasons aforesaid I hold that the respondent No. 2, Srivastava, was unfit to be an adjudicator against the petitioners and an order of adjudication by himself is unworthy of being sustained. 50. I now turn to the other argument of Mr. Meyer that the adjudication order proceeded on surmises and conjectures in the matter of the quantum of gold allegedly smuggled. In the adjudication order Srivastava observed as follows :- "The evidence analysed herein-above discloses beyond any doubt that for a number of years Messrs Shamlal Sen (Pvt.) Ltd., had been carrying on transactions in smuggled gold on a large scale. This explains the irregularities which were discovered by the Customs Authorities on scrutiny of the books of account of Messrs. Shamlal Sen (Pvt.) Ltd. As a result of the scrutiny it was. found that during April-December, 1954 Messrs. Shamlal Sen (Pvt.) Ltd. had purchased in all, more than 1, 33, 856 tolas of gold and that the names of sellers were indicated only against the purchases amounting to Rs. Shamlal Sen (Pvt.) Ltd. As a result of the scrutiny it was. found that during April-December, 1954 Messrs. Shamlal Sen (Pvt.) Ltd. had purchased in all, more than 1, 33, 856 tolas of gold and that the names of sellers were indicated only against the purchases amounting to Rs. 16, 742-14-3 p. None of the account books showed any purchase from such, a frequent supplier of gold as W. B. Zadkar. In the aforesaid circumstances, it is proper to hold, that the books of accounts had not been maintained correctly and in the ordinary course of business and are, therefore, not reliable. It is also proper to hold that all the gold had not been obtained by Messrs. Shamlal Sen (Pvt.) Ltd., in the ordinary course of business. Bira Singh has stated that the smuggled gold used to be received almost once a week. He has also stated that on 29-12-54 gold representing the contents of 4 belts had been removed from 164 Cotton Street by Bindhu Shusan Sen. Thus it is evident that the supply of the smuggled gold was adequate and perhaps even more than what the accused could sell them day-to-day. It is well known that the smuggled gold is sold in the market at price much below the prior of non-smuggled gold. A businessman who could obtain adequate supplies of smuggled gold to meet his day-to-day requirements is not likely to go in for buying costlier stuff. In the circumstances it will only be just to presume unless the contrary is established that the gold contents of the seized goods are smuggled. The irregularities noted in the account book, the omission of the names of the sellers therein, the absence of the vouchers in the premises of the accused all got explained only by the above presumption and also lend support and lead to such presumption." 51. The observations are certainly founded on presumptions and conjectures and the finding that the petitioners were concerned in the illegal importation of not less than 3000 tolas of gold is unsupported by evidence. That is an additional infirmity in the adjudication order and must be condemned on the principle of law laid down in Lalchand Bhagat v. Commissioner of Incometax, AIR 1959 SC 1295 . In the result I quash the adjudication order and make the Rule absolute. 52. Let a Writ of Certiorari issue accordingly. 53. That is an additional infirmity in the adjudication order and must be condemned on the principle of law laid down in Lalchand Bhagat v. Commissioner of Incometax, AIR 1959 SC 1295 . In the result I quash the adjudication order and make the Rule absolute. 52. Let a Writ of Certiorari issue accordingly. 53. I desire, however, to make one position clear. I quash the adjudication order because it violated the principle of natural justice and was procedurally defective. I do not express any opinion on the charges levelled against the petitioners. While it is important that even the guilty must not be denied a reasonable judicial procedure, it is of equal importance that persons who may be guilty must not be allowed to escape taking shelter under all sorts of procedural defects. I, therefore, make it clear that the authorities will be at liberty to proceed with the charges against the petitioners afresh according to law, if they so like, But this the authorities must do, if they do at all, with almost expedition. 54. This Rule is made absolute with costs. Rule made absolute.