Judgment :- These two connected petitions are to quash the order of the respondent dated September 1, 1959 imposing a personal penalty of Rs. 5, 000/-in one of them and a similar penalty of Rs. 1, 000/- in the other, under Section 167(8) of the Sea Customs Act, 1878. The same order confiscated 98 watches found to have been smuggled from Singapore into this country, but these petitions do not impugned the confiscation. On January 16, 1959, a Cargo supervisor of Sheik Mohammed Rowther and Company by name, N. Srinivasan, on interception by a customs officer, was found to carry on his person 66 watches stitched to a cloth belt. Srinivasan's statement disclosed that A. Almeida, who is the petitioner in W.P. No. 143 of 1960, the Chief Steward of "State of Madras" and Menino Vaz, another Steward in the same ship and the petitioner in the other Writ Petition were in the habit of smuggling goods from Singapore to Madras and pass them out by Srinivasan through Custom's barriers, and that on this occasion 66 watches, out of which 50 were Titoni watches, 14 Steel Favre-leuba watches, 1 Favre-leuba rolled-gold watch and one Roamer Rolled gold watch were handed to him by Almeida for safe transport out of the Customs, and on the previous day a consignment of 32 watches were delivered to him for a similar purpose by Menino Vaz. On the strength of the statement taken from Srinivasan, the Customs Officials would appear to have searched No. 5 Tank Street, Royapuram, Madras, where Almeida and Vaz were tenants, and in that search found a cloth bag hanging in a corner of the lavatory attached to the house containing 31 Titoni Watches and one Favre-leuba watch and Indian currency notes of the Value of Rs. 5, 232. Almeida, who was in the house, disclaimed ownership of the bag with its contents; but, in his statement given on January, 17, 1959, admitted that he and Menino Vaz had brought watches during November and December, 1958 from Singapore and utilised Srinivasan for transporting the smuggled goods out of the Customs free of duty, and that Srinivasan was paid commission for this service. Almeida was supposed to have also admitted that the 66 watches seized from Srinivasan belonged to him. Almeida was supposed to have also admitted that the 66 watches seized from Srinivasan belonged to him. Menino Vaz also gave statement in which he said that he and Almeida had entered into an arrangement whereby Almeida used to buy watches in Singapore and deliver them to him for concealment in cloth belts by sewing the watches to the belt even while on board, and on arrival of the vessel in Madras, he used to hand the watches over to Srinivasan for removal out the harbour. He also admitted that the 32 watches seized out of the 98 watches belonged to him. On the strength of these statements, the Assistant Collector of Customs called upon the petitioners as well as Srinivasan to show cause why they should not be proceeded against under Section 167(8) of the Sea Customs Act read with Section 3(2) of Imports and Exports (Control) Act, 1947 for importing or being concerned in the importation of the aforesaid watches in contravention of Section 19 of the Sea Customs Act read with Section 3(1) of the Imports and Exports (Control) Act, and as to why the currency notes and the contraband goods seized should not be confiscated. The petitioners disclaimed any ownership of the contraband goods and the currency notes. Almeida, in his reply, besides disclaiming the goods and the currency notes, alleged (1) that he was forcibly taken to the Custom House on the night of the seizure and a statement was recorded from him under duress, (2) that the allegations made against him by Srinivasan and Vaz were forced out of them, and (3) that he had no connection whatsoever with Pereira in his smuggling activities. 2.The Collector of Customs, as seen from his order, observed that he had carefully examined the case in all its aspects in the light of the explanations given and contentions put forward by Srinivasan, Pereira and the petitioners, and was satisfied that the petitioners were persons actively and knowingly concerned in the unauthorised importation of the watches since November, 1958. So far as Vaz was concerned he declined to make any reply to the show cause notice on the ground that pending a criminal prosecution, the matter should be treated as Sub Judice. So far as Vaz was concerned he declined to make any reply to the show cause notice on the ground that pending a criminal prosecution, the matter should be treated as Sub Judice. He would appear to have asked for a departmental action only after the conclusion of the criminal proceedings, but that was not acceded to by the departmental authorities. In the circumstances, therefore, the Collector of Customs made the impugned order. 3.In these petitions, Mr. Vaz, learned Counsel for the Petitioners made three points (1) that the impugned order is vitiated because it was not based on any proper enquiry or legal evidence, and, in that sense, the order violated the principles of natural justice; (2) on the same facts, the petitioners were proceeded departmentally and also prosecuted in a criminal court, and this procedure was improper because (a) it led to a conflict of findings, and (b) it involved the prosecutor and the Judge being one and the same person namely, the Customs Collector; and (3) that even granting the facts to be true, inasmuch as the 32 watches were seized outside the Customs barrier, the petitioners could not properly be found to have been concerned in the importation of the contraband goods. It is convenient to dispose of the last two points first. 4.It is true that the petitioners were prosecuted for an offence under Section 5 of Imports and Exports (Control) Act, 1947 and also proceeded against departmentally under Section 167(8) of the Sea Customs Act, on the basis of the same facts. It is, further true that in the criminal court the petitioners were acquitted whereas they have been found responsible for the offence under Section 167(8) of the Sea Customs Act. But on this account, it cannot be said that because two proceedings would possibly lead to conflict of findings, therefore, the order herein question is vitiated in so far as it related to the levy of penalty on the petitioners. It is, now, well established that the two offences so to say, the one under Section 167(8) of the Sea Customs Act and the other under Section 5 of Imports and Exports (Control) Act, 1947 are of a different nature, though there may be a common area between the two. It is, now, well established that the two offences so to say, the one under Section 167(8) of the Sea Customs Act and the other under Section 5 of Imports and Exports (Control) Act, 1947 are of a different nature, though there may be a common area between the two. The proceedings in the latter act are criminal in nature but that is not so, so far as the proceedings under Section 167(8) of the Sea Customs Act are concerned. Section 3(1) of Imports and Exports (Control) Act, 1947 empowers the Central Government to prohibit or restrict imports or exports. Sub-sections (2) of Section 3 states that all goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted. The penalty for contravention is provided by Section 5 which is to the effect that if any person contravenes or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under this Act or any condition of a licence granted under any such order, he shall, "without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878" * , be punishable with imprisonment for a term of which may extend to one year, or with fine, or with both. Section 167(8) of the Sea Customs Act, 1878, is concerned with the offence of importation or exportation of any goods contrary to the prohibition or restriction under Chapter IV of the Act, and the penalty provided for, is that goods imported or exported contrary to the prohibition or restriction are 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 one thousand rupees. 5.It will, thus, be seen from one stand-point that Section 5 of Imports and Exports (Control) Act, 1947 may be wider than Section 167(8) of the Sea Customs Act. From another angle, the offence under Section 167(8) may appear to be a wider scope. 5.It will, thus, be seen from one stand-point that Section 5 of Imports and Exports (Control) Act, 1947 may be wider than Section 167(8) of the Sea Customs Act. From another angle, the offence under Section 167(8) may appear to be a wider scope. It may be possible that, on some points, there may be common ground between the two sections. But it is plain that the two provisions provide for offences of different nature with different penalties, though the same facts might constitute on occasions an offence under both the provisions. The jurisdictions to proceed for the offences are also different, one a criminal prosecution in a court of law, and the other a proceeding before the departmental authorities. Section 5 of Imports and Exports (Control) Act itself seems to visualise two parallel proceedings on the same facts, one under the Sea Customs Act, and the other under Imports and Exports (Control) Act. That is the indication of the words, "without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act," * in Section 5. I do not, therefore, think that the contention, that the two proceedings should not be prosecuted in parallel fashion because it may lead to a conflict of findings, is well founded. For identical reasons, as I think the other head of contention namely that the Customs Collector has acted as a prosecutor and a Judge at the same time cannot be accepted too. The power of the Customs Collector under the Sea Customs Act is restricted to Confiscation of the contraband goods and levy of penalty. The imposition of imprisonment or fine is competent only by a Criminal Court. It cannot, therefore, be said that by instituting a prosecution in a criminal court and at the same time perusing the matter departmentally, he has contravened the well recognised principle that no man can be a prosecutor and at the same time be also a Judge himself. The second point urged for the petitioners is, therefore, rejected. 6.Still less substance I think is there in the third point. Mr. Vaz developed it thus. The second point urged for the petitioners is, therefore, rejected. 6.Still less substance I think is there in the third point. Mr. Vaz developed it thus. He read the sub-paragraph in column one of clause (8) to Section 167 and the provisions of Section 178 of the Sea Customs Act, and stated that a person can be said to be concerned in the importation of goods against prohibition only if and when he is caught redhanded within the precincts of the customs barriers with the contraband goods, and that if that is not the case, and the contraband goods have been successfully taken out of the Customs barrier free of duty and have been seized outside such frontiers, importation has come to an end; and that being the case, so says the counsel, there is no longer any question of illegal importation as the goods themselves have crossed the Customs frontier when they were seized, and in such a case, the person cannot be properly described, especially having regard to the sub-paragraphs of clause (8) of Section 167, as being concerned in the offence of importation of goods. I must confess my inability to appreciate this argument in the light of the particular facts and circumstances of the case. One can understand such an argument if all that has transpired is only seizure of goods found to be contraband outside the Customs barrier. But once the person admits having imported against prohibition or restriction, I fail to see why merely because the goods have not been seized from him within the Customs limits, he is any the less a person concerned in the importation of the goods. It may be that where there is not such an admission, it is difficult merely from the fact of seizure of the goods outside the Customs frontier to fix upon the person the offence of being concerned in illegal importation. Whether a person is concerned in illegal importation or not depends on the fact of his importing or arranging for the importation against prohibition. Only he is proved to have done that, its effect is not nullified or wiped out merely because he has successfully passed off the goods across the Customs frontier and the same were seized off the Customs frontiers. Only he is proved to have done that, its effect is not nullified or wiped out merely because he has successfully passed off the goods across the Customs frontier and the same were seized off the Customs frontiers. I can find no justification for the argument, either in the language of any of the paragraphs in clause (8) of Section 167 or in Section 178 of the Sea Customs Act. The word 'concerned' means and implies both the cases of a person actually importing or arranging therefor. As this court observed in Devichand and Co. v. Collector Central Excise. "To bring the petitioners within the terms of Item 8 it is necessary to establish either that they actually imported the gold or were concerned in the import of gold. That is to say, it must be shown that they had arranged for the import of the gold or abetted the import of the gold or received it immediately after the import, the receipt being the final step in the process of importation." * As the learned Judge pointed out in that case, they must have either actually committed the offence of importation or had been accessories to it either before the fact or after the fact. In this case, according to the Customs authorities, the petitioners themselves confessed having themselves brought the goods from Singapore to Madras. In the light of that confession, it is difficult to appreciate the argument that they are not the persons concerned, only because part of the goods were seized outside the Customs frontiers. The third point, therefore, fails. 7.There remains, for consideration, the first point urged by Mr. Vaz with considerable force. He contended that the only material before the Customs Collector to find his clients guilty of an offence under clause (8) of Section 167 were the three statements, each by Srinivasan, Almeida and Vaz, and that Almeida clearly mentioned, in his reply to the show cause notice that none of these statements was voluntary, and that the statement of Srinivasan, even if voluntary, was a false one. Learned Counsel urges that it is but elementary that when such a contention is raised, it was the plain duty of the Customs Collector to have applied his mind to the question and satisfied himself for stated reasons that the statements were voluntarily taken and they represented truth. Learned Counsel urges that it is but elementary that when such a contention is raised, it was the plain duty of the Customs Collector to have applied his mind to the question and satisfied himself for stated reasons that the statements were voluntarily taken and they represented truth. This duty, according to the learned Counsel, the Customs Collector totally failed to discharge. Equally strenously, the learned Additional Government Pleader urges that the order itself shows that the Customs Collector had applied his mind, and he draws my attention to the sentence in the order. "I have carefully examined the case in all its aspects in the light of the explanations given and contentions made by Sarvashri Srinivasan, Pereira, Vaz and Almeida." * I do not think that this one single observation of the Customs Collector is sufficient compliance with the requirements of law and justice. When a point of such a nature was raised, he could not in my opinion merely say that he had examined all the aspects, and leave the matter, at that. The Customs Collector has not even said, anywhere in his order, that he was satisfied, even for reasons not disclosed, that the statements, at least the one from Almeida, were voluntarily given and, in any case, the statement represented the truth. It is true the petitioners did not ask for an oral enquiry. But the complaint of the petitioners is not that they were not given an oral enquiry. Their grievance is that the Collector made no effort, as seen from his order, to apply his mind at all to the reply of Almeida and that he had, in order formally, to satisfy the law followed the procedure of issuing a show cause notice, calling for a reply and then making the order without any serious consideration of the points made out in reply. It is difficult to say that there is no force in the contention so urged by the petitioners. 8.There can be no doubt, that an enquiry into the alleged offence under clause (8) of Section 167 of the Sea Customs Act is of a quasi-judicial nature. It is difficult to say that there is no force in the contention so urged by the petitioners. 8.There can be no doubt, that an enquiry into the alleged offence under clause (8) of Section 167 of the Sea Customs Act is of a quasi-judicial nature. When the only material before the Customs Collector consists of statements some of which have been retracted and allegation made in reply to the show cause notice is that one or the other of the statements has been extorted or does not represent the truth, having regard to the nature of the enquiry and its serious implications, he must make a full and honest attempt to go into the allegations, examine the same and satisfy his mind for given reasons why these allegations were not well-founded. In this case, the order of the Customs Collector discloses a total failure on his part to discharge this duty. On this ground his order should be quashed. 9.The learned Additional Government Pleader presses before me that the petitioners have an alternative remedy under the law to make an appeal to the Board of Revenue and that actually they resorted to that remedy but did not pursue it because they were unable to comply with the requirements prescribed by the rules relating to the filing of such appeals. The reason for not pursuing the appeals appears to be that the petitioners were unable to pay the penalties, as they amounted to considerable amounts, at any rate in the case of Almeida. Ordinarily the existence of an alternative remedy will justify this Court declining to exercise its discretion, in the first instance, under Article 226 of the Constitution. But where the conditions imposed for appeal are onerous or the remedy is not a speedy one or where other justifiable circumstances exist, it is in the discretion of the Court to permit petitions like this under Article 226 of the Constitution. I also take into account the fact that these Writ Petitions have been pending in this Court Since 1960. In the Circumstances, I do not think that I can dismiss these petitions merely on the ground urged by the learned Additional Government Pleader. 10.The Order of the respondent in so far as it levied personal penalties on the petitioners is hereby quashed and the petitions are allowed and the Rules Nisi are made absolute to that extent.