Ibrahim Ismail vs Superintendent of Customs

This is a petition for issue of a Writ of Declaration that the proviso to Section 124 of the Customs Act, 1962, providing for giving of notice

referred to in clause (a) and representation referred to in clause (b) of the said section, to be oral at the request of the person concerned is

unconstitutional, violating Articles 14, 21 and 300A of the Constitution of India. There are two other prayers which are consequential. It is not

necessary to set out the facts of the case in detail as the only question to be considered relates to the constitutional validity of the proviso to Section

124 of the Customs Act. Suffice it to say that the petitioner is aggrieved by an order of confiscation and imposition of penalty passed by the

Second respondent on 29-6-1992.

Section 124 of the Customs Act, hereinafter referred to as ""the Act"" is in the following terms :-

No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such

person -

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of

confiscation or imposition of penalty mentioned therein; and

(c) is given a reasonable opportunity of being heard in the matter :

Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be

Oral.

It is argued that the proviso enabling the authority to dispense with the issue of a written notice and the making of a written representation at the

request of the person concerned and to give oral notice and accept oral representation is unconstitutional as it violates Articles 14, 21 and 300A of

the Constitution of India. It is urged that the proviso is vague, uncertain, unfair, unjust and arbitrary inasmuch as it does not prescribe any guidelines

for the invocation thereof. It is argued that the provisions of the Customs Act and the various allied Acts, Rules and Regulations besides

notifications issued under the Act from time to time, are very complex in nature and unless the concerned official and the person concerned are

thoroughly acquainted with the same, an oral show cause notice by such an official and an oral representation by the person concerned, would be

ineffective and defeat the object of the main section providing for issue of show cause notice before confiscation of goods. Learned Counsel

referred to Sections 2(1), 2(34), 11, 11N, 77, 79, 80, 100, 110, 111, 112, 122, 124 and 125 of the Act in support of his submission that the

provisions are complicated and deal with different situations which may vary from one another. It is argued that the official who may issue a show

cause notice may be different from the official who passes the order of confiscation and the latter will not be in a position to know the grounds

referred to in the show cause notice, if the same is oral. It is further contended that the proviso confers un-bridled discretion on the official and it is

left to his sweet will and pleasure to give oral notice and accept oral representation, as it uses the expression ""may"". It is submitted that there is no

indication in the proviso as to the applicability thereof to different cases which may arise for consideration. Learned Counsel submits that the

proviso brings about a discrimination by introducing two kinds of procedure which are not based on any intelligible differential and which have no

relation to the object sought to be achieved by the Section. It is urged that the proviso enables a person to waive his fundamental right and as there

can be no such waiver in law, it is invalid. It is then argued that the proviso violates Article 21 of the Constitution of India as it affects life and liberty

of a person by prescribing an unreasonable procedure. Lastly, it is contended that it is violative of Article 300A of the Constitution as it enables the

authorities to deprive a person of his property by an order of confiscation.

I am unable to accept any of the contentions urged by learned Counsel for the petitioner. Section 124 of the Act enjoins the issue of show cause

notice and giving of a reasonable opportunity to the person affected to make his representation and to be heard in the matter before any order

confiscating his goods or imposing any penalty on him is made under the Chapter. Chapter XIV, which comprises of Sections 111 to 127, deals

with confiscation of goods and conveyances and imposition of penalties. Section 111 describes the goods brought from a place outside India,

which are liable for confiscation. Section 112 of the Act provides of imposition of penalty for improper importation of goods etc. Section 115 of

the Act relates to confiscation of goods attempted to be improperly exported. Section 114 of the Act relates to penalty for attempt to export

goods improperly. Section 115 of the Act provides for confiscation of conveyances while Sections 116 and 117 of the Act deal with penalties for

not accounting for goods and for contravention of any provision of the Act. Sections 118 to 121 of the Act deal with confiscation of packages and

their contents, goods used for concealing smuggled goods, smuggled goods in spite of change in form etc., and sale of smuggled goods. Section

122 of the Act prescribes the adjudicating authorities with reference to confiscation and penalty. Section 123 of the Act deals with burden of proof

in certain cases. Section 125 of the Act provides for an option to pay fine in lieu of confiscation. Section 126 of the Act sets out the consequences

of confiscation. Section 127 of the Act is to the effect that an order of confiscation or penalty shall not prevent the infliction of any penalty to which

the person affected is liable under the provision of Chapter XIV of the Act or any other law. Thus, the scheme of the chapter shows that Section

124 of the Act prescribes a procedure to be adopted before passing any order of confiscation or imposition of penalty. It requires the issue of a

show cause notice informing the person affected of the grounds on which it is proposed to confiscate the goods or impose a penalty. Secondly, an

opportunity should be given to the said person to make a representation within such reasonable time as may be specified in the notice against the

grounds set out in the notice. Thirdly, a reasonable opportunity of being heard shall be given to the said person. The proviso enables the person

affected to dispense with the issue of a written notice and submission of a written representation. On his request, the notice may be oral and the

representation may also be oral.

The purpose of the proviso is quite obvious. In several cases, the person concerned may be in a hurry to have the adjudication process

completed within a short time so that he would know where exactly he stands. It depends on various circumstances including the immediate

necessity for the release of the goods to the person affected. Quite often it may depend on the nature of the goods too. In order to enable the

persons affected to get the adjudication completed orally, the Parliament has thought fit to introduce the proviso. It is only for the benefit of the

persons affected and it does not in any way confer any right on the authorities to dispense with the procedure prescribed under clauses (a) and (b)

of the Section at their sweet will and pleasure. The language of the proviso is very clear and there is no ambiguity whatever. The proviso can be

invoked only when a request is made by the person concerned and not otherwise.

There is no substance in the argument that the proviso is vague or arbitrary and that it does not provide for any guidelines for the invocation

thereof. In view of the unambiguous terminology of the proviso, there is no necessity for any further guidelines or explanations. There is no merit in

the contention that different officials may be handling different situations, some of whom may be junior officials who may not know all the

provisions of the Act, Rules and Notifications. No such presumption can be made with reference to statutory authorities and on that ground no

provision of the statute can be invalidated. The contention that the cases to which the proviso is applicable are not specified and therefore, the

proviso is vague is also not acceptable. The proviso will apply to all cases in which order of confiscation of any goods or imposition of penalty is

proposed to be made irrespective of the value of the goods.

Learned Counsel strenuously contends that a provision for oral notice is inherently bad and unconstitutional as according to him, oral

communication is no communication at all. Reference is made to the meaning of the word ''informing'' in New Webster''s Dictionary. According to

learned Counsel, ''informing'' means ''to communicate'' and any communication which is not in writing is not a communication at all. Reliance is

placed on the rulings of the Supreme Court under Article 22(5) of the Constitution of India. In the said Article, it is provided that when any person

is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall communicate to

such person the grounds on which the order has been made. The expression used in the Article is ""communicate"". That has been considered by the

Supreme Court in several cases. Learned Counsel has referred some of them.

In Harikisan Vs. The State of Maharashtra and Others, , it was held that if the person detained was not conversant with the English language

and if grounds of detention were communicated to him in that language, it would not amount to communication within the meaning of Article 22(5)

of the Constitution of India. The following passage in the judgment is relied on :-

In order that the detenu should be in a position effectively to make his representation against the order, he should have knowledge of the grounds

of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.

Communication in this context, must therefore mean imparting to the detenu sufficient knowledge of all the grounds on which the order of Detention

is based. In this case the grounds are several and are based on numerous speeches said to have been made by the appellant himself on different

occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenu would

not amount to communicating the grounds. Communication, in this context, must mean bringing home to the detenu effective knowledge of the facts

and circumstances on which the order of Detention is based.

We do not agree with the High Court in its conclusion that in every case communication of the grounds of detention in English, so long as it

continues to be the official language of the State, is enough compliance with the requirements of the Constitution. If the detained person is

conversant with the English language, he will naturally be in a position to understand the gravement of the charge against him and the facts and

circumstances on which the order of detention is based. But to a person who is not so conversant with the English language, in order to satisfy the

requirements of the Constitution, the detenu must be given the grounds in a language which he can understand and in a script which he can read, if

he is a literate person.

That judgment has been followed in Hadibandhu Das Vs. District Magistrate and Another, , Smt. Raziya Umar Bakshi Vs. Union of India and

Others, , Nainmal Partap Mal Shah Vs. Union of India (UOI) and Others, and Guda Vijayalakshmi Vs. Guda Ramachandra Sekhara Sastry, . In

all the above cases, the grounds of detention were in a language which could not be understood by the detenu and it was, therefore, held that

sufficient opportunity was not given to them as contemplated by Article 22(5) of the Constitution India. The rulings will have no hearing on the

question whether a provision in a statute enabling the person concerned to opt for oral notice and oral representation is unconstitutional. If the oral

notice is in a language which can be understood by the person concerned and if the said notice satisfies the requirements of the law, in that it

informs the person concerned of all the grounds for the proposed order, then it is sufficient compliance with the law and it gives a reasonable and

fair opportunity to the person concerned. It cannot be said in such cases that he is deprived of an opportunity to know the grounds put against him.

Incidentally, learned counsel contended that the proviso does not prescribe the language in which the oral notice should be given. Advisedly,

the Parliament has not mentioned it, as it is implied that the oral notice should be in such a language which can be understood by the person

concerned.

It is argued that the authorities are given unbridled discretion and that they can pick and choose the cases in which they will give oral notice and

the cases in which they will give written notice. There is no substance in this contention. As pointed out already, the question of giving oral notice

will arise only if a request is made by the person concerned.

It is then contended that two different procedures are prescribed by the section, one by the main section in clauses (a) and (b) and other by the

proviso. According to learned Counsel, the classification brought about by the two procedures is not based on any intelligible differentia and that it

has no nexus with the object sought to be achieved by the section. There is no merit in this contention. There is a reasonable classification in the

section. The main section provides for a procedure to be adopted by the authorities in all cases generally. The proviso is an exception which can

be invoked in cases where a specific request is made by the persons concerned. The persons who have made such a request do form a separate

class different from others. The objection of the section is in no way defeated by the notice and the representation being oral. They can be as

effective as written notice and a written representation. Thus, the proviso, is not in any way unconnected with the object of the section.

The contention that if a person makes a request for issue of oral notice, he will be waiving his fundamental right and that is opposed to law is

unsustainable. There is no fundamental right to any particular procedure. The fundamental right is to have a fair and reasonable opportunity to

know the grounds put against him and a similar opportunity to make a representation and thereafter have a fair hearing. In other words, the right is

to have a fair enquiry which is in accordance with the principles of natural justice. When a person prefers to have an oral notice under the proviso

he is not giving up his right to have a notice. He has not waived any right by that. He is only choosing the mode of such notice. The principle that a

fundamental right cannot be waived by a person has no applicability to cases falling under the proviso.

Reliance is placed by the learned counsel on the ruling in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and

Another, , in which it was held that it was not open to a person to waive his fundamental right conferred by part III of the Constitution of India. My

attention is drawn to similar observations found in the judgment in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, . It was

held in that case that there can be no estoppel against the Constitution the provisions of which are conceived in public interest and intended to

serve a public purpose. Reference was made in that case to the judgment in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and

Rajasthan and Another, . In Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , the question was whether Section 314 of the

Bombay Municipal corporation Act, which prescribed a procedure for removal of encroachment of footpaths and pavements was violative of

Article 21 of the Constitution. The Court answered the question in the negative and upheld the validity of the section. The following passages in the

judgment are relevant :-

Having given our anxious and solicitious consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of

the Bombay Municipal Corporation Act for removal of encroachments on the footpaths and pavements over which the public has the right of

passage or access, cannot be regarded as unreasonable, unfair or unjust. There is no static measure of reasonableness which can be applied to all

situations alike. Indeed, the question ""Is this procedure reasonable ?"" implies and postulates the enquiry as to whether the procedure prescribed is

reasonable in the circumstances of the case. In Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, , Bhagwati, J. said :-

. . . . .it is for the Court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a

given case is by procedure, which is reasonable, fair and just or it is otherwise"" (at p. 75 of AIR).

... If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption

of a procedure which is impermissible under the Constitution, it would have to be struck down. Considered in its proper perspective, Section 314

is in the nature of an enabling provision and not a compulsive character. It enables the Commissioner, in appropriate cases to dispense with

previous notice to persons who are likely to be affected by the proposed action. It does not require and cannot be read to mean that in total

disregard of the relevant circumstances, pertaining to a given situation, the Commissioner must cause the removal of an encroachment without

issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What Section

314 provides is that the Commissioner may, without notice cause an encroachment to be removed. It does not command that the Commissioner,

shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers on the Commissioner the discretion to cause

an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the

constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of

this interpretation because it helps sustain the validity of the law. Reading Section 314 as containing a command not to issue notice before the

removal of an encroachment will make the law invalid.

It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power

should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule

(Hear the other side) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way

of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors

like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected

by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given

individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to

have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the

burden being upon those who affirm their existence.

A reading of the above passage show that if circumstances warrant, there can be a departure from the ordinary rule of affording opportunity of

being heard to the person concerned. There can be exclusion of principles of natural justice by way of exception under certain circumstances.

Thus, the ruling in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, does not help the petitioner in the present case. As

pointed out already, the proviso does not enable any person to waive any right, much less a fundamental right.

There is no merit in the contention that Article 21 of the Constitution of India is violated by the proviso. My attention is drawn to some

observations of the Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . They do not have any relevance to the

present case. Similarly, the contention that Article 300A of the Constitution is violated has no basis whatever.

In the result, the prayer for declaration that the proviso to Section 124 of the Act is unconstitutional has to be rejected. As the other prayers

are only consequential, it is not necessary, for me to consider the same. The petitioner has a right to appeal against the impugned order passed by

the second respondent and he can put forward all the contentions available to him before the appellate authority.

Learned counsel for the petitioner prays that a direction may be issued to the Appellate Authority to dispose of the appeal, which may be filed

by the petitioner within a short time. The appellate authority is not a party to this writ petition. It is not possible to give a direction to the Appellate

authority straightaway. The Additional Standing Counsel for the Central Government is directed to communicate to the concerned authority that the

appeal which may be filed by the petitioner against the order of the second respondent dated 29-6-1992 may be disposed of in accordance with

law within a period of twelve weeks from the date of filing of the appeal.

With the above directions, the writ petition, is dismissed.