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1966 DIGILAW 155 (CAL)

UNION OF INDIA v. RAHAMATULLAH ZADEH

1966-07-25

G.K.MITTER, MASUD

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G. K. MITTER, J. ( 1 ) THIS is an appeal from an order rejecting an application property interessee sue made by the Union of India praying that the Official Receiver of this Court should not claim or take possession of the consignment of Raw Russian Lamb Skin being Calcutta Foreign Parcels Nos. U. K. 38576/85 of 12/63 under the order dated the 7th July 1964 until a valid Import Trade Licence in respect thereof be produced before the Assistant Collector of Customs for postal appraisement, and for other reliefs. The facts are shortly as follows :- In November 1963, the Mount Fur Company Limited, the defendant in Suit No. 1093 of 1964 filed by Rahamatullah Zadeh, sent from London ten parcels of which the particulars are given above, to Rahamatullah Zadeh, the plaintiff above named, at Calcutta. No Import Trade Licence in respect of the goods was produced by Rahamatullah Zadeh or his clearing agents or his clearing agents to the Assistant Collector of Customs for postal appraisement in spite of demands for the same, with the result that the Customs Authorities could not release the goods. The goods were lying in the custody of the Superintendent, Foreign Post Office, Calcutta. Thereafter by letter dated the 14th July, 1964 addressed to the Assistant Collector of Customs for postal appraisement, the Official Receiver of the High Court, Calcutta informed the said Collector that an order had been passed by this Court on the 7th July, 1964, in the said suit appointing him the Official Receiver as the Receiver in respect of the said parcels then lying in the custody of the Superintendent, Foreign Post Office, Calcutta. The Assistant Collector was further informed that the order directed the Receiver to take possession of the said parcels and documents and papers upon payment of costs and charges, if any, and the Official Receiver also asked for possession of the said parcels. ( 2 ) CORRESPONDENCE followed between the Official Receiver and the Assistant Collector of Customs which was later taken up by the Solicitor for the Central Government in Calcutta. On the 17th of August, 1964, Mr. S. K. Mandal, the Solicitor, wrote to the Official Receiver that the goods mentioned in the order of the Court dated the 7th July 1964 had been imported in contravention of the Import Trade Control Regulations without an Import Trade Licence. On the 17th of August, 1964, Mr. S. K. Mandal, the Solicitor, wrote to the Official Receiver that the goods mentioned in the order of the Court dated the 7th July 1964 had been imported in contravention of the Import Trade Control Regulations without an Import Trade Licence. It was mentioned that the said importation was prohibited under Section 11 of the Customs Act, 1962, read with Section 3 (2) of the Import and Export (Control) Act, 1947 and Order No. 17/65 dated 7th December 1965 issued by the Government of India, Ministry of Commerce and Industries and that the goods were liable to confiscation under Section 111 (d) of the Customs Act, 1962. The addressee was called upon to produce the Import Trade Control Licence and other covering documents relating to the goods and was informed that such a licence was necessary before any action could be taken to release the goods. In rely the Official Receiver wrote back to say that he was not aware as to whether the goods had been imported in contravention of the Import Trade Control Regulations or not. Ultimately on the 11th of September, 1964 the Official Receiver sent a bunch of documents containing Invoices, Insurance Policies Packing specification etc. but no Import Licence. The Solicitor Mr. Mondal by letter dated the 28th of November, 1964 asked for the Import Trade Control Licence covering the goods in order to enable the Customs Authorities to proceed with the assessment. By a letter dated the 9th December 1964 the official Receiver informed Mr. Mondal that his office was not in possession of any Import Trade Control Licence. ( 3 ) THE application property interessee sue was made by a petition affirmed by one Bhupal Sen Gupta on the 13th May, 1965. In this petition after referring to the facts stated above, it was asserted in paragraph 8 that until and unless a valid Import Trade Licence covering the said goods was produced no one was entitled to or could claim the said goods and it was incumbent upon the petitioners to institute adjudication proceedings for confiscation of the goods. By paragraph 10 the Union of India submitted that suitable and/or necessary directions should be given directing the Official Receiver not to demand or take possession of the consignment until the production of a valid Import Trade Licence. By paragraph 10 the Union of India submitted that suitable and/or necessary directions should be given directing the Official Receiver not to demand or take possession of the consignment until the production of a valid Import Trade Licence. ( 4 ) AN affidavit-in-opposition was affirmed by one Shemoel Kohen who described himself as the Constituted Attorney of the plaintiff. He denied that the plaintiff was the importer of the goods and added that the plaintiff was not in a position to produce any Import Licence. He further stated that the Union of India had wrongfully purported to question and challenge the authority of the Official Receiver to take delivery of the goods, and even suggested that proceedings in contempt should be taken in respect thereof. ( 5 ) THE learned Judge who heard the application made an order on the 16th of August, 1965 to the effect that it was not the Official Receiver who had imported the goods and the Union of India could proceed against the persons who had imported the same. The learned Judge also came to the conclusion that the Union of India was at liberty to start confiscation proceedings in respect of the goods, but was not entitled to any order on the application. He also directed that the Official Receiver was not to be asked to produce any Import Licence because he had not imported the goods. On appeal the matter was mentioned in this Court on the 6th of September, 1965 when directions for affidavits were given. By an order dated the 6th of December, 1965 leave was granted to the Customs Authorities to take proceedings for confiscation, but they were directed not to take possession of the goods without further orders of this Court. ( 6 ) AFTER the filing of the appeal an application in connection therewith appeared on our list from time to time and Counsel appearing on behalf of the Union of India wanted to have the matter adjourned so that confiscation proceedings could be launched in respect of the goods. Ultimately confiscation proceedings came to an end with an order of the 23rd of April, 1966. By this the goods were confiscated u/s. 111 (d) of the Customs Act. Ultimately confiscation proceedings came to an end with an order of the 23rd of April, 1966. By this the goods were confiscated u/s. 111 (d) of the Customs Act. The Customs Authorities, however, gave the owner of the goods the option to clear them on production of a valid Import Licence or on payment of a fine of Rupees ten thousand, in default of which the goods might be re-shipped after observing the requirements of the Foreign Exchange Regulation Act. ( 7 ) IT appears to us that the learned trial Judge fell into an error in thinking that the Official Receiver of the Court could take possession of the goods without production of an Import Licence. Under Section 3 of the Import and Exports (Control) Act, 1947 the Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under an order the bringing into any port or place in India of goods of any specified description as also the import, export, carriage coastwise or shipment of goods of any specified description. By sub-section (2) of this section all goods to which any order under sub-section (1) applies are to be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act. By clause 3 of the Imports (Control) Order, 1955 promulgated under Sections 3 and 4a of the Imports and Exports (Control) Act, 1947 it was provided that, "save as otherwise provided in this Order, no person shall import any goods of the description specified in schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any Officer specified in schedule II. " Item 144 of this schedule appearing at page 139 of the Import Trade Control Hand Book of Rules and Procedure shows that "hides and skins, raw or salted" fall within that prohibition. ( 8 ) UNDER Section 111 of the Customs Act, 1962 the goods mentioned therein brought from a place outside India are to be liable for confiscation and under clause (d) thereof such goods include any goods which are imported or attempted to be imported. . . . . ( 8 ) UNDER Section 111 of the Customs Act, 1962 the goods mentioned therein brought from a place outside India are to be liable for confiscation and under clause (d) thereof such goods include any goods which are imported or attempted to be imported. . . . . contrary to any prohibition imposed by or under this Act or any other law for the time being in force. ( 9 ) IN exercise of the powers conferred by Section 75 of the Sea Customs Act, 1878 the Central Board of Revenue made certain rules for the landing and clearing of inter alia, parcels and packets forwarded by foreign mails or by passenger vessels or airlines. Rule 8 thereof which appears at page 247 of the Indian Sea Customs Manual, Vol. I, shows that,"if on examination the contents of any parcel or packets are found to be misdescribed or the value understated or to consist of prohibited goods such parcels or packets shall be detained and reported to the Customs Collector, and the Postmaster shall not allow such parcels or packets to go forward without the Customs Collector's orders. " ( 10 ) IN this case it is quite clear that the goods were brought into India without any Import Licence at all. Whatever the claim of the plaintiff against the defendant in the suit 1093 of 1964 may be, it was not right or proper that this Court should direct the Official Receiver to take possession of the goods ignoring the provisions of law mentioned above. In law the Official Receiver did not occupy a position better than that of any person who claimed a title to the goods but could not produce any valid Import Licence and in the circumstances of this case, the proper order could have been for the learned, Judge to direct that the Official Receiver should not claim or take possession of the goods until a valid Import Licence in respect thereof was produced before the Assistant Collector of Customs. The appeal is, therefore, allowed. Parties will pay and bear their own costs of the appeal. Appeal allowed.