BEOPARI MAL v. UNION OF INDIA — 1965 DIGILAW 9 (DEL)

D. K. Mahajan,j. ( 1 ) THIS is a petition under Articles 226 and 227 of the Constitution of India. It is directed against the order of the Collector of Central Excise and Land Customs, New Delhi dated the 25th July, 1958. By this order, the Collector confiscated Indian currency amounting to Rs. 56. 225/6. 00 under Section 167 (8) read with section 19 of the Sea Customs Act, 1878, as made applicable bysection 23-A/23-B, of the Foreign Exchange Regulation Act, 1947. In addition to this, the Collector imposed a personal penalty of Rs. one lakh on Beopari Mal petitioner and a penalty of Rs. 1. 000. 00 each on Jethu Singh and Har Singh. The petition has been argued entirely on the basis of the facts found by the Collector. Only two contentions have been advanced. The first contention is that there is no evidence on the basis of which any finding could he given that the monies recovered from the possession of Jethu Singh and Hari Singh were the sale proceeds of smuggled gold and that the petitioner was exporting Indian currency. In this connection it is further maintained that even on the facts found by the Collector, no such inference can he deduced or is possible. ( 2 ) THE second contention advanced is that no proper opportunity was afforded to the petitioner to show cause to the action proposed to be taken against him under the Sea Customs Act and as well as under the Foreign Exchange Regulation Act. To narrow down the ambit of this contention, it may be stated that the only point sought to be made was that certain witnesses who had been examined by the Collector at the back of the petition and copies of whose statements had been furnished to him, were not examined in the presence of the petitioner nor were they permitted to be cross-examined. The procedure has resulted in the violation of the rules of natural justice, contends the learned counsel for the petitioner. Therefore, the entire order of the Collector beconies illegal and therefore of no consequence. ( 3 ) BEFORE examining these contentions, it will be proper to set out the salient facts of this case. The Customs authorities had information that two Government railway police constables Jethu Singh and Hari Singh had, on the 3rd of January, 1957, carried smuggled gold for disposal at Jodhpur. ( 3 ) BEFORE examining these contentions, it will be proper to set out the salient facts of this case. The Customs authorities had information that two Government railway police constables Jethu Singh and Hari Singh had, on the 3rd of January, 1957, carried smuggled gold for disposal at Jodhpur. The gold had been disposed of at Jodhpur. That the constables would be bringing back the sale proceeds of gold to Banner by train on the morning of the 5th January, 1957 for smuggling the same into Pakistan. The Superintendent, Land Customs, Banner accompained by the Customs Preventive party and the Superintendent and Deputy Superintendent of Police of Barmer organized araid on the incoming Jodhpur-Barmer train. The train arrived at Barmer in the early hours of the morning of the 5th January, 1957. On arrival of the train, the suspected G. R. P. constables were apprehended. They were in the compartment reserved for the Government Railway Police Escort Party. Tnere were other persons also in the compartment. The Superintendent of Police challenged the two constables, whereupon constable Jethu Singh was seen handing over a parcel wrapped in paper to one Dal Singh, an ex-Police constable. Dal Singh dropped the parcel. The parcel was taken possession of by the Superintendent of Police, Barmer. On examination, the parcel was found to contain Indian currency notes worth Rs. 6,242. 00. The Snperintendent of Police, thereafter asked the two constables Jethu Singh and Hari Singh whether they had any more currency in their possession. The constables denied having any more currency with them. A search was ordered of their persons and baggage and as a result thereof. Indian currency notes worth Rs. l,825. 00 were recovered from the person of Jethu Singh So far as Hari Singh is concerned, he had in his possession three parcels containing Indian currency notes of the value of Rs. 30,086/6. 00. Rs. 4,000. 00 and Rs. 14,072. 00 respectively. The total currency recovered thus amounted to Rs. 56,225/6. 00. The police also took into possession a multi-pocket jacket containing a number of account slips and letters. The raid was carried out later on, on the business and residential premises of the petitioner Beopari Mal wherefrom certain documents were recovered. 30,086/6. 00. Rs. 4,000. 00 and Rs. 14,072. 00 respectively. The total currency recovered thus amounted to Rs. 56,225/6. 00. The police also took into possession a multi-pocket jacket containing a number of account slips and letters. The raid was carried out later on, on the business and residential premises of the petitioner Beopari Mal wherefrom certain documents were recovered. It is on the basis of this that proceedings were initiated against all the three-Beopari Mal, Jethu Singh and Hari Singh under the Sea Customs Act and the Foreign Exchange Regulation Act, in pursuance of which the impugned order was passed by the Collector. ( 4 ) JETHU Singh and Hari Singh were examined by the police on 10-1-1957. According to them, the currency in question belonged to one Beopari Mal of Barmer. It had been handed over to them at the Jodhpur railway station at the time of the. departure of the train on the night of 4th January, 1957 by one Daya Ram Sindhi with a request to carry the money to Barmar, as he was being followed by some Goondahs and he thought that it was dangerous for him to keep the amount. This story. was not accepted by the police and accordingly Jethu Singh and Hari. Singh were arrested under section 5 (2) of the Prevention of Corruption. Act. The amount recovered from them was also detained on the ground that it was being smuggled out to Pakistan. The amount was later on handed over by. the Police to the Customs authorities of Barmer for taking action under the Indian Sea Customs Act. ( 5 ) THE Superintendent, Land Customs, Barmar issued a memo dated 10th July, 1957 (Annexure b to the petition) to Beopari Mal and called upon him to explain and show cause as to why the seized Indian currency should not be confiscated and why further penal action should not be taken against him undersection 167 (8) of the Sea Customs Act for contravention of section 5 of the Land Customs Act, 1924 and section 8 (2) of the Foreign Exchange Regulation Act, 1947 read with section 19 of the Sea Customs Act, as made applicable by section 23-A of the Foreign Exchange Regulation Act. A similar notice was also issued to the two constables Jethu Singh and Hari Singh. A similar notice was also issued to the two constables Jethu Singh and Hari Singh. The present petition being only by Beopari Mal, it is not necessary to advert to the case of the other two, namely, Jethu Singh and Hari Singh. ( 6 ) BEOPARI Mal filed a written statement in reply to the show-cause memo. The stand taken by him was that the amount inquestion belonged to him. He had carried it to Jodhpur on the 1st January, 1957 with the intention of deposing it in the State Bank of India, Jodhpur. The bank was closed on that day on account of New Years holiday. He, therefore, handed over the amount to Shri Daya Ram for safe custody as he had return to Banner the same day due to the sudden illness of his son. He could not return to Jodhpur for the following three days. Therefore, Daya Ram was taking the money back to Barmer for returning it to him. As Daya Ram found that he was being followed by some bad characters and in view of the danger of being robbed by those persons, he approached the constables who were accompanying the train on guard duty and requested them to carry the money for him to Barmer. Thereafter the story is the same, as narrated by the two constables and which has already been set out above. ( 7 ) A personal hearing was accorded by the Collector to Beopari Mal, along with the other two accused persons. Beopari Mal was represented by Lakh Ram, Advocate of Barmer. No stand was taken by Beopari Mal or his counsel that the rules of natural justice had been violated in as much as certain statements of witnesses had been recorded at his back and only copies of those statements had been furnished and the witnesses were not subjected to cross-examination. All the witnesses were present, when hearing was given to Beopari Mal. The only contention raised before the Collector was that the evidence recorded in the case did. not prove that any actual, attempt was made to smuggle the Indian currency out of India. If was also urged that the idea that the currency was in the processof being smuggled into Pakistan had not occured to the Customs authorities at the stage, when the money was recorded, but it occurred to them later on. not prove that any actual, attempt was made to smuggle the Indian currency out of India. If was also urged that the idea that the currency was in the processof being smuggled into Pakistan had not occured to the Customs authorities at the stage, when the money was recorded, but it occurred to them later on. The counsel for Beopari Mal also produced a letter Of Daya Ram which merely supports the statement of Beopari Mal already set out. The counsel for Beopari Mal also denied the recovery of the chits and multi- pocket jacket from the constables. It was also urged that the handwriting of the chits recovered from Beopari Mal was not similar to the handwriting of the chits recovered from the constables. The Collector has recorded the following findings :- (1 ). I find that the story put up by the accused that the amount was handed over to constables by Daya Ram at the time of departure of the train on 4-1-1957 for fear of being robbed by Goondahs is totally false. Daya Ram was seen by the Deputy Superintendent of Police, Barmer at the Barmer railway station before the train carrying the two accused constables arrived at the railway station Barmer. (2) Beopari Mal did not come forward to claim the amount as his till 8-1-1957 i. e. three days after the seizure. (3) I cannot-believe the accused story that these chits and documents were not found in their possession. There is no reason to dis-believe the evidence of the Police and Customs officers and the two independent witnesses who had signed these documents. Further the documents recovered from the possession of the constables and those recovered from the house and business premises of Beopari Mal resemble in quality and the type of the papers used and the handwriting of the documents appears to be quite similar. ( 8 ) HAVING found these facts, the Collector proceeded to determine whether the charges have been brought home to Beopari Mal. This is how the Collector dealt with the matter :- "the next point for determination is whether the act of the accused persons in carrying the amount from Jodhpur to Banner amounted to an attempt to smuggle it out of India. This is how the Collector dealt with the matter :- "the next point for determination is whether the act of the accused persons in carrying the amount from Jodhpur to Banner amounted to an attempt to smuggle it out of India. The counsel for the accused at the time of personal hearing contended that at the most the act of the accused amounted to preparation and not to actual attempt to smuggle the currency-out of India. I carefully considered this contention and from the evidence recorded in the case and the various circumstance attending on the case I have come to the conclusion that the accused were actually attempting to smuggle the currency out of India. From the information received and from the accounts and other documents seized in the investigation of the case it is conclusively proved that the amount was the sale-proceeds of the smuggled gold. Smuggling of gold has usually two aspects. The smuggled gold is disposed off and the amount obtained from the sale thereof is smuggled out of the conutry for being paid to the person concerned operating on the other side of the border. The moment therefore, the smuggled gold is disposed off and the sale-proceede collected and moved towards the border, an attempt can be said to have been made to smuggle the currency across the border. It would be impossible in such cases to catch the accused with the currency while actually crossing the border. The movement of the accused with the currency towards the border is sufficient evidence unless there is evidence to show that the amount was legitimately possessed by the accused at the place of detention, to prove that the amount was being smuggled out of the country. In such cases the attempt would certainly succeed if the accused is not intercepted at some point in the vicinity of the border. In this case there is a clear evidence to prove that the amount seized from the possession of the accused was the sale-proceeds of the smuggled gold. There is no evidence to prove that the accused person had acquired the money in a legitimate way. There is also no evidence to prove that they were taking the amount to Banner for any bonafide purpose. If they had not been intercepted on the way they would have certainly succeded in smuggling the amount across the border. There is no evidence to prove that the accused person had acquired the money in a legitimate way. There is also no evidence to prove that they were taking the amount to Banner for any bonafide purpose. If they had not been intercepted on the way they would have certainly succeded in smuggling the amount across the border. The accused were given a fair chance to explain how they came into possession of the amount. When first asked by the Superintendent of Police they denied of having the amount in their possession. Shri Beoparimal who now claims the amount as legitimately belonging to him also failed to come forward to claim it immediately after the seizure. All this evidence leads to the conclusive proof that the amount was the sale-proceeds of the smuggled gold and that it was in the actof being the smuggled out of the country by the accused. I, therefore, held that an attempt has been clearly proved. "so far as the first contention is conceened, it is in two parts- (1) that there is no evidence on the basis of which it could be held that the money recovered from the possession of Jethu Singh and Hari Singh represented the sale proceeds of the smuggled gold and (2) that the sale-proceeds were being smuggled to Pakistan. In other words, the Indian currency was being smuggled to Pakistan. ( 9 ) SO far as the first part is concerned, the case presents no difficulty There is ample evidence and material on the basis of which the Collector has arrived at the finding of fact that the sale-proceeds represented smuggled gold. The learned counsel for the petitioner half-heartedly argued that finding is not supported by evidence, but ultimately gave up his attempt in this behalf and proceeded on the basis that he could not, in the present proceedings, attack the finding of fact even if the finding of fact had been erroneously arrived at by the competent authority. It is now well settled that this Court is not a Court of appeal while examing the matter under Article 226 of the Constitution of India. Therefore, even an erroneous finding of fact much less a correct finding of fact is not open to review in these proceedings. Therefore, the order of the Collector confiscating the sale is fully justified. It is now well settled that this Court is not a Court of appeal while examing the matter under Article 226 of the Constitution of India. Therefore, even an erroneous finding of fact much less a correct finding of fact is not open to review in these proceedings. Therefore, the order of the Collector confiscating the sale is fully justified. If smuggled gold was recovered, the Collector could have, under the law, confiscated the same. There seems to be no reason why the money which represents the proceeds of that gold cannot be confiscated. Therefore, the order of the Collector confiscating the sale-proceeds of the smuggled gold is upheld. ( 10 ) THE question that really presented considerable difficulty is whether the sale-proceeds were smuggled out to Pakistan The sale proceeds were brought from Jodhpur to Banner. They were recovered at Banner. The persons carrying the same were not going further than Barmer. There is no evidence at all on the record excepting a conjecture on the basis of which the Collector proceeded that the proceeds being the price of the smuggled gold were naturally meant for transmission to Pakistan from where the gold had been smuggled. The Collector arrived at this finding on the ground that the gold being smuggled gold, its price had necessarily to go to Pakistan from where it had come. He lost sight of the possiblity that its price could very well have been paid before it crossed over to India. However, it is not necessary to probe into this matter any further because of the decision of the Supreme Court in Civil Appeal No. 777 of 1962, Radha Kishan Bhatia v. Union of India and others , decided on 23rd November 1964. The facts of this case are almost similar to the facts. of the present case. The ratio of the decision in Radha Kishna s case applies with full force to the present case. Besides the fact that the gold in that case was smuggled gold, there was no other fact proved on the record which could connect the petitioner with the offence of importation or exportation of articles in respect of which there was prohibition or restriction under the law. In the present case, the petition is similar. Besides the fact that the gold in that case was smuggled gold, there was no other fact proved on the record which could connect the petitioner with the offence of importation or exportation of articles in respect of which there was prohibition or restriction under the law. In the present case, the petition is similar. Besides the finding which is fully supported by evidence that the Indian currency recovered from the two constables represented the sale proceeds of smuggled gold, no further fact has been found which would connect the petitioner as being one of the persons concerned in the importation or exportation of the smuggled gold, or the Indian Currency which it represented. For this reason, I am quoting in extenso the observations of their Lordships of the Supreme Court in Radha Kishan s case. After quoting the provisions of section 167 (8) of the Sea Customs Act, their Lordships observed as follows : - "the question is, who can be said to be concerned in any such offence for the purposes of the expression used in the third column to penalties. Such a person would be one who is concerned in the importation into or exportation of such goods whose importation into or exportation from India is contrary to the prohibition or restriction placed under Chapter IV of Act. The offences described in the first column have reference to ss. 18 and 19 of the Act. Section prohibits the bringing into India, whether by land or sea, of the goods mentioned in its several clauses. Section 19 empowers the Central Government to prohibit or restrict by notification in the official Gazette, the bringing or taking by sea or land goods of any specified description into or out of India across any customs frontier. It follows therefore that the person who can be penalised under s. 167 (8) is one who is in any way concerned in the commission of the offence Of bringing into India or taking out of the country goods with respect to which certain prohibitions or restrictions exist. It is not disputed that gold cannot be brought into the country witout a valid permit from the authority empowered to it. It is not disputed also that the gold recovered from the appellant was imported into the country illegally. It is not disputed that gold cannot be brought into the country witout a valid permit from the authority empowered to it. It is not disputed also that the gold recovered from the appellant was imported into the country illegally. The appellant can therefore be said to be concerned in the commission of the offence of illegally bringing into the country gold, if he had been in some way responsible for such bringing into the country. He cannot be said to be so concerned in the commission of this offence if he is not responsible in this manner and if he got possession of the gold after it had been brought into the country. His being in possession of such gold, when arrested, can in no way raise the presumption that the actually brought such gold into the country from outside the border or that he was respossible for its being brought into the country by taking such action which led to the importing of the smuggled gold priar to its import. There, is no evidence about any action taken by the appellant in connection with the import of the gold found in his possession. It is immaterial what meaning be attributed to the word concerned . It can have the meanings involved or engaged or mixed up . The requirment of the expression concerned in any offence, in the penality part of s. 167 (8) are that. the person to be penalised must be interested or involved or engaged or mixed up in the commission of the offence REFERRED TO in the first column of s. 167 (8 ). The interest or the involvement or the engagement or the mixing up of the appellant in the commission of the offence must be at a stage prior to the completion of the offence of illegal importation of gold into the country. Once the gold has has been imported, any subsequent interest etc, in the smuggled gold cannot bring in the person showing such interest etc. , within the purview of s. 167 (8) for the porposes of the importation of the penalty. The offence of importation of goods is complete when the goods have crossed the customs frontier. This is clear from the provisions of s. 19 and also from those of s. 18 which, however, does not use the actual expresion across the customs frontier. The offence of importation of goods is complete when the goods have crossed the customs frontier. This is clear from the provisions of s. 19 and also from those of s. 18 which, however, does not use the actual expresion across the customs frontier. "we are therefore of opinionthat the mere finding of fact recovered by the Collector of Customs in this case about the smuggled gold being rscovered from the possession of the appellant is not sufficient to conclude, as. urged for the respondent, that the appellant was concerned in the illegal importation of the smuggled gold into the country and. therefore liable for the penalty under s. 167 (8) of the act. The view we have expressed has been taken by the Bombay, Calcutta and Mardas High Courts. The Punjab High Court has taken a. different view and we may now consider its reasons for the contrary view. In Balbir Singh s case, there was no dispute that the Collector had not recorded a finding that the petitioner before the High Court was concerned in the offence of importation or exportation of goods Which were for the time being prohibited or restricted. It was therefore held that the order imposing a penalty on the person could not be sustained. It was this case which was relied on by the learned Single Judge in the present case as the finding recorded by the Collector was as follows: in view of all this evidence on record I hold that the gold in question is smuggled one and was recovered from Shri Radha Kishan while he was taking the same to Pokaran in truck No. RJM 40. I therefore order confiscation of the seized gold under section 7 (i) of the Land Customs Act. -. 1 also impose upon Shri Radha Kishan apersonal penalty of Rs. 15. 000. 00 (Rupees Fifteen thousand only) under section 167 (8) of the Sea Customs Act, 1807. The Division Bench, on Letters Patent Appeal, relied on Jagdish Singh case, and held that the finding that Radha Kishan was concerned in the importation of gold was implicit in the manner in which the Collector dealt with the case. 15. 000. 00 (Rupees Fifteen thousand only) under section 167 (8) of the Sea Customs Act, 1807. The Division Bench, on Letters Patent Appeal, relied on Jagdish Singh case, and held that the finding that Radha Kishan was concerned in the importation of gold was implicit in the manner in which the Collector dealt with the case. It observed: It cannot be again said that here, apart from the fact that the smuggled gold in a large quantity was found concealed on the person of Radha Kishan, the plea taken by Radha Kishan that it was not taken from his person was found to be false and this circumstance taken together with the recovery of the smuggled gold would be sufficient for the Collector to be satisfied that Radha Kishan was concerned in the importation of the smuggled gold. The circumstances REFERRED TO by the Punjab High Court appellate Bench may be sufficient for holding that the appellant knew that he was carrying smuggled gold and that he was thereby committing some offence. But we are unable to say how these circumstances led to the conclusion that he must be concerned in the importation of that gold. It is not invariably the case that smuggled things are carried by the smuggler himself or by someone who had taken steps for the smuggling of those goods. They can be carried by persons who had nothing to do with the smuggling or illegal importation of the goods into the country and had come to possess them subsequently even with the knowledge that they were smuggled goods. We therefore hold that a mere finding of fact that a person is in possession of smuggled goods does neither imply that the Collector of customs had considered the question of the person s being concerned in the commission of the offence of illegal importation of the goods nor in any way justifies the conclusion that the person must lave been so concerned. Other circumstances indicating that the person had some connection with the importation of the goods prior to their actual import have to be established. In the present case, no such circumstances have been alleged which Would connect the appellant with the actual importing of the smuggled gold recovered from his person. Other circumstances indicating that the person had some connection with the importation of the goods prior to their actual import have to be established. In the present case, no such circumstances have been alleged which Would connect the appellant with the actual importing of the smuggled gold recovered from his person. There is no mention of any such circumstances in the order of the Collector or even in the reply affidavit filed in the High Court by the Assistant Collector of Central Excise and Land Customs, New Delhi, though the appellant had said in ground no. C of the writ petition that there was absolutely no material before respondent No. 3, on which he could have come to a finding that the petitioner had imported the said gold. We may also mention here that there is no allegation that the appellant himself smuggled the gold from outside the country. " ( 11 ) IN view of the aforesaid decision of the Supreme Court, it appears to me that there is no option but to hold that the imposition of penalty is wholly uncalled for in this case. I would accordingly quash the order imposing the penalty on the petitioner. ( 12 ) THIS leads to the second contention of the learned counsel. It is based on a decision of the Supreme Court in M/s. Pioneer, Traders and M/s. Eastern Overseas, Pondicharry v. The Chief Controller of Imports and Exports, Pondicherry, where in their Lordships observed that an order of a Customs authority imposing confiscation and penalties under section 167 (8) of the Sea Customs Act is quasi-judicial. The Customs authority has the duty to act judicially in deciding the question of confiscation and penalty. The learned counsel for the department did not dispute this proposition and merely maintained that the rules of natural justice have not been voilated in the present case. The only violation of the rules of natural justice that has been stressed before me is that the statements of the witnesses were not recorded in the presence of the petitioner, though copies of their statements were furnished to him and that no opportunity was granted to the petitioner to cross-examine those witnesses. The witnesses were present at the time, when the Collector heard the petitioner. The witnesses were present at the time, when the Collector heard the petitioner. No demand was made by the petitioner either that the statements of the witnesses be recorded in his presence and he be allowed to cross-examine them or that he may be permitted merely to cross-examine the witnesses. The petitioner was present in person and not only that, was represented by a lawyer. In this situation no grievance can be made that the rules of natural justice were violated. The petitioner was satisfied with the copies of the statements of the witnesses furnished to him and seems to have thought it futile to either get them examined again in his presence or even to cross-examine them. ( 13 ) THE learned counsel for the petitioner, for the second contention, relied on the decision of this Court in Shyam Lal Roshan Lal v. Punjab State", the decision of the Allahabad High Court in State of U. P. and another v. C. S. Sharma, and the decision of the Supreme Court in Union of India v. T. R. Verma. These decisions do support the abstract contention that a quasi-judicial Tribunal is bound to record the evidence of witnesses in presence of the parties and must allow the party an opportunity to cross-examine the witnessess. But it is significant that m all these cases, a demand was made for recording of the evidence of the witnesses in the presence of the party and for an opportunity for cross-examination and that demand was not acceded to by the Tribunal. No decision has been brought to my notice, where at the time of the hearing to the show cause notice, the witnesses are present, whose statements had been recorded at the party s back and the copies whereof had been supplied to it, the party did not make a request for the re-examination of the witnesses, in its presence; wherein it has been held that the rules of natural justice had been violated. ( 14 ) ON the facts of the present case, I am not prepared to accede to the contenion of the learned counsel that there was a violation of the rules of natural justice. Nothing was kept back from the petitioner. The witnesses. whose statements had been recorded in the absence of the petitioner were present at the inquiry to the knowledge of the petitioner. Nothing was kept back from the petitioner. The witnesses. whose statements had been recorded in the absence of the petitioner were present at the inquiry to the knowledge of the petitioner. Copies of their earlier statements had already been furnished to the petitioner and inspite of this, no request was made by the petitioner that those witnesses should be examined or at least permitted to be cross-examined. As amatter of fact, the petitioner proceeded to argue the case after accepting that material as good evidence in the case. Therefore, no grievance can be made by him on that score at this stage. I, therefore, see no merit in the second contention and the same is repelled. ( 15 ) THE learned counsel for the State relied on the following passage in the decision of the Supreme Court in Syed Yakoob v. K. S. Radhakrishnan, "a finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidenceled on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ court. "this decision does not help the learned counsel in the least. I have only interfered with the order of the Collector with regard to one matter, namely, the imposition of personal penalty and that too on the basis of the decision of the Supreme Court. I am, therefore, unable to see how the aforesaid decision of the Supreme Court relied upon by the learned counsel, in any manner, advances his contention. ( 16 ) FOR the reasons given above, I partly allow this petition. While upholding the order of the Collector with regard to confiscation of the Indian currency recovered from the two constables, I quash the order so far as it relates to the imposition of penalty under section 167 (8 ). of the Sea Customs Act on the petitioner. In view of its divided success, I would not make any oredr as to costs in this petition.