IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.632 of 2007 Commissioner of Customs, Patna C.R. Building, B.C. Patel, Path, Patna 800001 ---- Respondent ------- Appellant. Versus Sri Jaynath Shaw, S/o Inderdeo Sah, Vill:- Inerwa, P.O. Sirisia, P.S. & Via :- Adapur, Dist.- East Champaran, Bihar ------ Appellant -------- --- Respondent. ----------- 10. 10.4.2009 Heard Mr. Sanjay Kumar No.2 for the appellant, and Mr. Birju Prasad for the respondent. This appeal is directed against the decision dated 21.5.2007, passed by the learned Technical Member of Customs, Excise and Service Tax Appellate Tribunal, East Zonal Branch, Kolkata, in Appeal No. CSM-11, 12/2005, Order No. A-947-948/Kol/07 (Sri Jaynath Shaw & Ors. Vrs. Commissioner of Customs, Patna), whereby he has set aside the order passed by the two authorities below him and has directed for release of the four gold bars in question. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. On 22.12.2001, the noticee (the respondent herein), was found in possession of four gold bars weighing 148.5 grams, 106.8 grams, 104.3 grams, and 136.2 grams. As noticed in the impugned order, the seizure memo records the marks on the gold bars as symbol of tiger head/ R.R.’ Sidhnath’ in Hindi. The purity found is 995. According to the appellant, the noticee had secreted four gold bars in his rectum and he had, on being intercepted, confessed at the time of the seizure on 22.12.2001, that the same are smuggled goods and, therefore, the burden was on the noticee to prove that they are not smuggled 2 goods. On the other hand, the case of the noticee is that the same were found in his possession, are not imported articles, jewellery of the customers had been converted into gold bars, and were being taken to Varanasi for exchange of ornaments. Four gold bars were seized by the authorities on the spot on 22.12.2001. Learned Joint Commissioner Customs, Patna, had passed original order dated 31.7.2003 (Annexure-8), whereby the four gold bars were confiscated in terms of section 111(d) of the Customs Act, 1962 (hereinafter referred to as the Act). Penalty of Rs.50,000/- was also imposed on Jaynath Shaw under the provisions of Section 111 of the Act. Aggrieved by this order, the noticee preferred appeal which has been dismissed by the learned Commissioner (Appeals), Customs and Central Excise, Patna, in Appeal No. 278-279 dated 23.10.2004 (Annexure-9), and the original order was upheld. Aggrieved by this order, the noticee preferred the next appeal before the Tribunal which has been allowed by the impugned order on the ground that the department has not been able to prove that the gold in question was of foreign make and smuggled. It has also been allowed for the additional reason that the alleged recovery of four gold bars from the rectum of the noticee has not been supported by Doctor’s certificate or X-ray report. Hence this appeal at the instance of the department. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the manner in which the four gold bars was allegedly secreted by the noticee presents an extra-ordinary 3 situation. We have no manner of doubt that the provisions of section 103 of the Act was attracted. Section 103 of the Act is reproduced hereinbelow for the facility of quick reference: “103. Power to screen or X-ray bodies of suspected persons for detecting secreted goods.- (1) Where the proper officer has reason to believe that any person referred to in sub-section(2) of Section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before the nearest magistrate. (2) A magistrate before whom any person is brought under sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person. (3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect. (4) Where a magistrate has made any order under sub-section(3), in relation to any person, the proper officer shall, as soon as practicable, take such person before a radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologist to screen or X-ray his body. (5) A radiologist before whom any person is brought under sub-section (4) shall, after screening or X-raying the body of such person, forward his report, together with any X-ray pictures taken by him, to the magistrate without unnecessary delay. (6) Where on receipt of a report from a radiologist under sub-section (5) or otherwise, the magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction: Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner. (7) Where any person is brought before a magistrate under this section, such magistrate may for the 4 purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct. (8) Nothing in this section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods.” In view of the alleged combined secreting of four gold bars by one person in the rectum, it was imperative for the concerned authorities to produce the noticee before the Magistrate which was not done. We are further of the view that it was equally imperative to take the noticee before the radiologist to screen or X- ray the body which was not done. 4. Learned counsel for the petitioner has relied on the provisions of sub-section (8) of section 103 of the Act and section 123 of the Act to an effort to satisfy us that, in a case of admission by the noticee that the goods were so secreted, the procedure prescribed in Sub-sections (3) and (4) of Section 103 of the Act need not be followed, and the burden of proof shifts to the noticee in terms of Section 123 of the Act. The same is reproduced hereinbelow for the facility of quick reference. “123. Burden of proof in certain cases .- [(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be- (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold [and 5 manufactures thereof] watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify.” We are not satisfied that there was an effective admission by the noticee. On the contrary, the materials on record create an impression in our minds that it was a case of false implication. We are, therefore, of the view that the procedure prescribed in sub-sections (3) and (4) of Section 103 of the Act have not been followed. This provision of law was not followed as a result of which the seizure becomes invalid in law. 5. The judgment of the Supreme Court in the case of Ranjit Thakur Vrs. Union of India and others, A.I.R. 1987 SC 2386, may be noticed where adequate emphasis has been placed on following the prescribed procedure. The relevant portion of the judgment is reproduced hereinbelow : “The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft quoted words of Frank furter, J. in Vitarelli V.Seaton, 359 US 535 are again worth recalling: “…….if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ………….This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” “The history of liberty” said the same learned Judge “has largely been the history of observance of procedural safeguards.” (1942) 318 US 332. 6 We are afraid, the non-compliance of the mandate of S.130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. Indeed it has been so held by this Court in Prithvi Pal Singh V. Union of India, AIR 1982 SC 1413 where Desai J. referring to the purpose of S.130 observed: “……….Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection…. ……….This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. ……….The provision conferring a right on the accused to object to a member of the Court-Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court-Martial. This is preeminently a rational provision which goes a long way to ensure a fair trial.” What emerges, therefore, is that in the present case there is a non-compliance with the mandate of S.130 with the attention consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a).” 6. Learned counsel for the noticee has placed before us a copy of the challan showing deposit of a sum of Rs.20,000/- of the penalty as an interim measure. He shall be entitled to refund of the amount with interest at the rate of 15 per cent from the date of deposit till the date of payment. The same also takes care of deprivation of possession of the gold bars since their seizure. 7. In the result, we are clearly of the view that failure on the part of the departmental authorities to follow the mandate of sub-sections (3) and (4) of Section 103 of the Act renders the order of confiscation and that of the first appellate order invalid. 7 We agree with the impugned order. The appeal is dismissed. Vinay/ ( S. K. Katriar ,J. ) (Kishore K. Mandal,J.)