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PETITIONER: SHEWPUJANRAI INDRASANRAI LTD.

       Vs.

RESPONDENT: THE COLLECTOR OF CUSTOMS & OTHERS

DATE OF JUDGMENT: 09/05/1958

BENCH: DAS, S.K. BENCH: DAS, S.K. BOSE, VIVIAN DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SUBBARAO, K.

CITATION:  1958 AIR  845            1959 SCR  821

ACT: Smuggled  Goods-Violation of Provisions of Sea  Customs  Act and Foreign Exchange Regulation Act --Power of Collector  of Customs  to take action under Sea Customs  Act-Confiscation- Fine in lieu  of confiscation-Order of confiscation  coupled with  conditions for release of the smuggled  goods-Legality of  the  order--Sea Customs Act, 1878 (8 of 1878),  ss.  19, 167(8), 182, 183-Foyeign Exchange Regulation Act, 1947 (7 Of 1947), ss. 8, 23.

HEADNOTE: The appellant company was carrying on business as a  bullion merchant and in that capacity purchased about 9478 tolas  of gold.   On  information  that  the  gold  in  question   was smuggled,  the  customs authorities issued a notice  to  the appellant to the effect that the case had been placed before the   Collector   of  Customs  for   adjudication   by   the Superintendent, Preventive Service, The notice stated  inter alia  :-"  You  are requested to show cause  ...  why  penal action should not be taken against you and the 9478,19 tolas of  gold in question under the provisions of ss. 167(8)  and 168  of the Sea Customs Act, 1878, for alleged violation  of s. 19 of the same Act read with s. 8 of the Foreign Exchange Regulation  Act,  1947 ". The Collector  of  Customs,  after hearing the parties, came to the conclusion that the gold in question   was   smuggled  gold  and  that   there   was   a contravention of the provisions of s. 19 of the Sea  Customs Act  read with s. 8 of the Foreign Exchange Regulation  Act, and made an order in these terms: " I accordingly order that the entire quantity of the gold seized on the 21st November, 1950,  amounting  to  9478.19  tolas  be  confiscated  under section  167(8)  of  the  Sea  Customs  Act.   In  lieu   of confiscation, however, I give the owner of the said gold  an option,  under  section  183  ibid to  pay  a  fine  of  Rs. 10,00,000 (Rupees ten lakhs only) in addition to the  proper customs  duty and other charge leviable thereon within  four months  from  the date of the despatch of  this-order.   The release  of  the  gold  will  be  further  subject  to   the production of a permit from the Reserve Bank of India within

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the  aforesaid  period  ".  The  appellant  challenged   the validity  of  the order and contended (i) that on  a  proper construction  of s. 8(3) of the Foreign Exchange  Regulation Act  read  with  s. 19 of the Sea Customs Act,  it  was  not legally  open to the customs authorities to take any  action against  it under the Sea Customs Act, as such action  would prejudice  the provisions of S. 23 of the  Foreign  Exchange Regulation  Act, and (2) that, in any case,  the  conditions which  the Collector of Customs had imposed in the  impugned order for release of the confiscated gold were not warranted by the statute, 822 and that as the order was a composite and integrated one  it was not severable and, therefore, should be quashed : Held,  (1)  that the scope of s. 167(8) of the  Sea  Customs Act,  1878, is different from that of s. 23 Of  the  Foreign Exchange  Regulation Act, 1947.  Whereas under s. 23 Of  the Foreign  Exchange  Regulation Act proceedings are  taken  in Personam against the offender for the purpose of  penalising him  for the contravention of the provisions of the Act,  an order for confiscation of the smuggled goods under s. 167(8) Of the Sea Customs Act is one in rem. There  is a difference between the expression "  any  person concerned  in  any  such offence " occurring  in  the  third column  of  s.  167(8)  of  the  Sea  Customs  Act  and  the expression  "whoever  contravenes any of the  provisions  of this  Act  "  occurring in S. 23  of  the  Foreign  Exchange Regulation   Act.   A  person  may  be  concerned   in   the importation  of  smuggled goods, without  being  a  smuggler himself   or  without  himself  contravening  any   of   the provisions of the Foreign Exchange Regulation Act. In  this case, the only penalty imposed under s.  167(8)  Of the  Sea  Customs Act was confiscation of  the  gold,  which indicated  that  the  customs authorities  had  dropped  the proceedings  in personam; consequently, the adoption of  the procedure under the Sea Customs Act did not prejudice in any manner  the  provisions Of.  S. 23 Of the  Foreign  Exchange Regulation  Act.   The  question whether  two  remedies  are available  to  the  authorities concerned in  respect  of  a contravention which comes both under the Sea Customs Act and the Foreign Exchange Act was left open. (2)  The Collector of Customs had no jurisdiction to  impose the two conditions for the release of the confiscated gold ; but, as the aforesaid conditions are severable from the rest of  the  impugned  order,  the latter is  valid  as  to  the confiscation  of  the gold and the payment of fine  in  lieu thereof. R.   M. D. Chamarbaugwalla v. Union of India, [1957]  S.C.R. 930  and  Shri Ram Krishna.  Dalmia v. Shri  justice  S.  R. Tendolkar and others, [1959] S.C.R. 279, applied. The relevant sections of the Sea Customs Act, 1878, and  the Foreign  Exchange Regulation Act, 1947, are set out  in  the judgment.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 256 of 1954. Appeal  from the judgment and decree dated July 3, 1953,  of the Calcutta High Court in Appeal from Original Order No.  7 of 1953, arising out of the judgment and decree dated August 5, 1952, of the said High Court in Matter No. 84 of 1952. 823 N.   C.  Chatterjee, S. K. Kapur and I. N. Shroff,  for  the appellant.

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C.   K. Daphtary Solicitor--General of India, H. J.  Umrigar and R. H. Dhebar, for respondents Nos.  1 to 3. B.   Sen,  S. N. Mukherjee, and B. N. Ghosh, for  respondent No. 4. Veda Vyasa and B. P. Maheshwari, for respondent No. 5. 1958.  May 9. The Judgment of the Court was delivered by S.   K.  DAS J.-This appeal has come to us on a  certificate granted by the High Court of Judicature at Calcutta that the case is a fit one for appeal to this Court. The  appellant is Shewpujanrai lndrasanrai Ltd.,  a  private limited company incorporated under the Indian Companies Act, 1913  and  carrying on business at 69, Manohar  Das  Street, Calcutta.   Respondents I and 3 are the Customs  authorities concerned;   respondent  2  is  the  Union  of  India,   and respondents  4  and  5 are two  banks,  called  respectively Nationale Handels Bank N. V., a foreign company carrying  On business  at 1, Royal Exchange Place, Calcutta,  and  Bharat Bank Ltd., a company incorporated under the Indian Companies Act,  1913, and having its registered office at 143,  Cotton Street, Calcutta. The material facts are these.  The appellant Company carries on business as a bullion merchant and in that capacity  used to  buy gold and silver in the Calcutta and  Bombay  markets and  sell the same either direct or through bankers  at  the aforesaid  two places.  It is stated that  between  November 14,1950,  and November 20, 1950, the appellant Company,  ill the  usual  course of its business,  purchased  about  9,478 tolas  of  gold,  and  in respect  of  the  said  purchases, borrowed  money  from  respondents  4 and  5.  The  gold  so purchased  was  deposited  with  the  respondent  banks   as security  for the loans taken, 7,044 tolas  being  deposited with respondent 4 and about 2,437 tolas 105 824 with  respondent  5.  With  the  consent  of  the  appellant Company, the two Banks respondents 4 and 5, sent the gold to the  Calcutta Min for the purpose of assaying.  On  November 20, 1950, the Collector of Customs, Calcutta, asked the Mint authorities  not to part with the gold, and on November  21, 1950,  the  gold was seized at the instance of  the  Customs authorities,  Calcutta,  in pursuance of  a  search  warrant issued by the Chief Presidency Magistrate, Calcutta.  On the same day, certain books of account of the appellant  company were. also seized from its place of business at 69,  Manohar Das  Street.  Oil November 22, 1950, the  appellant  Company received a letter signed by one Jasjit Singh of the  Customs Department, requesting the presence of the appellant at  the Customs House on November 27, 1950, for opening and checking the  bags  of bullion which had been seized from  the  Mint. Thereafter followed some correspondence, details whereof are not   necessary  for  our  purpose,  between   the   Customs authorities  and Messrs.  Sawday & Co., acting on behalf  of the appellant Company.  On December 19, 1950, the  appellant Company  made an application in the High Court  of  Calcutta under Art. 226 of the Constitution in which it asked for the issue of appropriate writs or orders quashing the orders  of seizure and detention of its gold and books of account,  and for  a  further direction that the  Customs  authorities  be prohibited  from  giving  effect  to  the  said  orders   of detention and seizure or from taking any steps in connection with  the  gold or the books of account seized.   This  writ application  was heard and disposed of by an order  made  by Bose  J. of the Calcutta High Court on April 23,  1951,  the result of which was that the rule was made absolute to  this extent  only  that the seizure of the books of  account  was

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declared  to  be illegal and a direction was made  that  the books  be returned forthwith to the appellant  Company.   No order was made about the gold seized and detained. On  June 20, 1951, the Customs authorities sent a notice  to the appellant Company which was in these terms:- 825 Subject   :-Seizure  of  9,478-19  tolas  of  gold  at   the Government of India Mint, Strand Road, Calcutta. I  have been directed by the Collector of Customs to  inform you  that  the  above case has been placed  before  him  for adjudication  by the Superintendent, Preventive Service.   A copy  of  the  note submitted by the  latter  together  with copies of the assay reports therein     referred   to    are enclosed herewith. 2.  You  are  requested  to show  cause  in  writing  within fourteen  days from date hereof why penal action should  not be  taken  against  you and the 9,478.19 tolas  of  gold  in question  under the provisions of sections 167 clause 8  and 168  of the Sea Customs Act, 1878, for alleged violation  of section  19  of  the same Act read with  section  8  of  the Foreign Exchange Regulation Act, 1947. 3.   You   are  also  requested  to  send  copies   of   all documentary   evidence  including  all  books  of   account, vouchers etc., along with your explanation. 4.   On  receipt  of  your explanation,  the  Collector  has directed  me to further inform you that in this case a  date and  time  will be fixed for hearing at which  you  will  be required  to  produce all oral evidence in support  of  your explanation and also to make your submissions." This  notice  was issued on the strength of  an  information contained  in  a note which the  Superintendent,  Preventive Service of the Customs authorities, submitted and which said that  the gold in question had been smuggled into  India  in violation  of  the provisions of the Sea Customs  Act,  1878 (hereinafter  referred  to as the Sea Customs Act)  and  the Foreign Exchange Regulation Act, 1947 (hereinafter  referred to  as the Foreign Exchange Act) and that the gold had  been sent  to the Mint for processing; that is, for  melting  and casting  the same into bars, weighing and stamping the  same with  the  Mint  Marks, and  also  assaying  small  portions thereof.   On July 3, 1951, the appellant Company  submitted its  explanation  in answer to the  aforesaid  notice.   The -parties  were then heard by the then Collector of  Customs, Sri Raja Ram Rao; but before the hearing could conclude, Sri Raja Ram. 826 Rao  was transferred.  His successor, Mr. J. W.  Orr,  heard the  parties on some days; but on October 11, 1951, Mr.  Orr was succeeded by Sri A. N. Puri.  This latter officer  heard the parties afresh and concluded the hearing on February  8, 1952.   On  May 14, 1952, Sri A. N. Puri  passed  the  order impugned  in this case, in which he came to  the  conclusion that the gold in question (9,478.19 tolas) was smuggled gold and  that there was a contravention of the provisions of  s. 19  of  the Sea Customs Act read with s. 8  of  the  Foreign Exchange  Act.  The final order which he made was  in  these terms :- "  I accordingly order that the entire quantity of the  gold seized  on  the 21st November, 1950, amounting  to  9,478.19 tolas be confiscated under section 167(8) of the Sea Customs Act.  In lieu of confiscation, however, I give the owner  of the said gold an option under section 183 ibid to pay a fine of Rs. 10,00,000 (Rupees ten lakhs only) in addition to  the proper customs duty and other charge leviable thereon within four  months  from the date of the despatch of  this  order.

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The  release  of  the gold will be further  subject  to  the production  of a permit from Reserve Bank of  -India  within the aforesaid period.  " On June 19, 1952, the appellant Company filed a second  writ petition  in  the High Court of Calcutta in which  it  asked that (a) a writ of certiorari do issue against respondents I to  3  calling  upon  them to  produce  the  record  of  the proceeding  resulting in the impugned order of May  14,1952, and  for quashing the same; (b) a writ of mandamus do  issue requiring  respondents 1 to 3 to forbear from giving  effect to the orders of seizure, detention and confiscation of  the appellant’s gold and further requiring the said  respondents to  return  the  gold to the appellant; and (e)  a  writ  of prohibition  do issue restraining the said respondents  from taking  any  further  steps in pursuance  of  the  order  of confiscation  etc.  This second writ application  was  dealt with and disposed of by Bose J. by his order dated August 5, 1952.   Broadly speaking, the two main grounds on  which  he held the impugned order to be bad ",ere these.  The  learned Judge held 827 that  by purporting to proceed under 182 of the Sea  Customs Act  in the present case, the Customs authorities had  acted in  prejudice  to  the provisions of s. 23  of  the  Foreign Exchange  Act  and this was in violation of s. 8(3)  of  the Foreign  Exchange Act as it stood at the relevant time.   He said: "  If the petitioners had not been implicated in the  charge it  might  have  been open to  the  Customs  authorities  to proceed under section 182 if steps were intended to be taken only  against  the offending goods but the  notice  to  show cause makes it clear that that is not the case.  Although  I am not prepared to go to the length of holding that  section 23  of  the  Foreign  Exchange  Regulation  Act   altogether excludes the operation of section 182 of the Sea Customs Act and  although  I have no doubt, that  in  appropriate  cases where  section 23 is not attracted, recourse can be  had  to section 182 of the Sea Customs Act, the present case is  one in which adoption of the procedure under section 182 of  the Sea  Customs  Act has prejudiced section 23 of  the  Foreign Exchange Regulation Act.  The entire proceedings before  the Customs  authorities  must therefore be held to  be  without jurisdiction.  " Secondly, he held that the conditions which the Collector of Customs had imposed in the impugned order for release of the confiscated  gold were not warranted by the statute, and  as the impugned order was one composite order, different  parts whereof could not be severed one from the other, the  entire order  must be held to have been made without  jurisdiction. On these findings, the rule was made absolute, the  impugned order  was quashed and respondents I to 3 were  directed  to forbear from giving effect to the order. Then there was an appeal which was heard by a Division Bench consisting  of Das and Mookerjee JJ.  That Bench  held  that the  proceeding under the Sea Customs Act was in the  nature of  a  proceeding  in rem and an order  of  confiscation  or penalty passed in such a proceeding was not a quasi judicial act,  but an administrative or executive act, in respect  of which  no application for the issue of a writ of  certiorari under 828 Art.  226 of the Constitution lay.  On a construction of  s. 8(3)  of  the  Foreign  Exchange Act, as  it  stood  at  the relevant  time,  it  held that  the  restrictions  mentioned therein had a double effect and the remedies available under

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s.  167(8)  of the Sea Customs Act and under s.  23  of  the Foreign Exchange Act were cumulative in nature.  It said: "  The  former  remedy (meaning the  remedy  under  the  Sea Customs  Act) is intended to levy the customs duties and  is mainly  directed  against the goods; the  latter  is  penal, intended  to  punish  the person concerned  in  the  act  of smuggling.   There  is  thus  no  question  of  the   former proceeding prejudicing the latter proceeding.  " Accordingly the Division Bench held that the first ground on which Bose J. had held the impugned order to be bad was  not sustainable.   With regard to the conditions imposed in  the impugned  order for the release of the confiscated gold,  it held that the invalidity, if any, of the imposition of  such conditions  did not affect the main order  of  confiscation. It said Section 183 casts an imerative duty on the officer adjudging confiscation  to  give the owner of the goods an  option  to party  such  a  fine as the officer thinks fit  in  lieu  of confiscation.    The  duty  so  cast  is  an   exercise   of jurisdiction  by the officer concerned quite  separate  from the  exercise  of  his  jurisdiction  under  section  167(8) imposing  confiscation and penalty.  If any  illegality  has attached in the matter of exercise of his jurisdiction under section 183, the illegal condition may be set aside.  " In  the  result, it accepted the appeal and  set  aside  the judgment and order of Bose J. The present appeal is from the aforesaid judgment and  order of the Division Bench dated July 3, 1953. There  are two preliminary points which we may  conveniently dispose  of  here, before we go on to the  main  contentions urged  on  behalf  of the appellant Company.   In  giving  a certificate  in  this case the learned Chief  Justice,  with whom  Das  Gupta  J. agreed, expressed  the  view  that  the question whether the proceeding in which the order  appealed from was 829 made  was  of a civil or crinlinal nature, or  was,  in  the language of Art. 132 of the Constitution, other  proceeding’ was  not free from difficulty; he added that, in any  event, Art.  135 of the Constitution applied in the  present  case, because  it  was  not disputed  that  certain  questions  of interpretation  of  the  Constitution  were  involved   and, therefore,  the case was clearly one where an  appeal  would lie to the Federal Court immediately before the commencement of  the Constitution.  The learned Solicitoreneral, who  has appeared before us on behalf’ of respondents I to 3, has not accepted  as  correct the view that Art. 135  justified  the grant  of a certificate in this case.  He has not,  however, pressed  us  to  decide in this case  the  question  of  the competency  of the certificate given by the High Court,  and has  raised  no  objection to a decision of  the  appeal  on merits.   The  question  whether  a  proceeding  on  a  writ application  is  of a civil or criminal  nature  within  the meaning  of  those expressions in Arts. 133 and 134  of  the Constitution  has led to some divergence of opinion  in  the High  Courts,  and  we  understand that it  is  one  of  the questions for decision in some cases which we have  recently admitted.   In the view which we have taken of  the  present case on merits and the further eircumstance that it is  open to us to give special leave to the appellant under Art,. 136 of the Constitution, we do not think that it is necessary in the  present  case  to decide the  question  mooted  by  the learned Chief Justice in his order dated -December 1,  1953, and we prefer not to express any opinion thereon. The  other point relates to the view expressed by  the  High

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Court   in  the  order  under  appeal  that  an   order   of confiscation or penalty under the Sea Customs Act is a  mere administrative  or  executive act, in respect  of  whic‘  no application for a writ of certiorari lies.  It is  necessary to  state  that  the point is now concluded  by  two  recent decisions  of  this  Court.  In F. N. Roy  v.  Collector  Of Customs,  Calcutta (1), this Court held that the  imposition of a fine under s. 167(8) of the Sea Customs Act was  really a quasi-judicial act and in the (1)  [1957] S.C.R. 1151. 830 later  decision  of  Leo Roy  Frey  v.  The  Superintendent, District  Jail, Amritsar and another (1),  it has been  held that  in imposing confiscation and penalties under  the  Sea Customs Act, the Collector acts judicially.  Therefore,  the view that an order of confiscation or penalty under the  Sea Customs Act is a mere administrative or executive act is  no longer tenable. Now,  we proceed to a consideration of the two  main  points urged  on  behalf  of the appellant Company.   It  has  been argued  before us that on a proper construction of s. 8  (3) of  the  Foreign Exchange Act (as it stood at  the  relevant time)  read  with s. 19 of the Sea Customs Act, it  was  not legally open to the customs authorities in the present  case to  take any action against the appellant Company under  the Sea Customs Act, as such action prejudiced the provisions of s. 23 of the Foreign Exchange Act.  To appreciate this point it is necessary to read some of the relevant sections of the Foreign Exchange Act and the Sea Customs Act. Sub-sections (1) and (2) of s. 8 of the Foreign Exchange Act impose  restrictions  on import and export of  currency  and bullion.   Sub-section  (1)  states, inter  alia,  that  the Central  Government  may, by notification  in  the  official gazette,  order that, subject to such exemption, if any,  as may  be  contained  in the notification,  no  person  shall, except with the general or special permission of the Reserve Bank,  bring  or send into the-States any  gold  or  silver. Such a notification was published on August 25, 1948,  which said  in  substance that except with the permission  of  the Reserve Bank, no person shall bring into the States from any place outside India. any gold, bullion, etc, sub-section (3) was  at the relevant time in these terms- 8 (3) The restrictions imposed by subsections (1)  and (2) shall be deemed to have been imposed under section  19 of the Sea Customs Act, 1878, without  prejudice to  the  provisions of section 23 of this Act, and  all  the provisions of that Act shall have effect accordingly." The aforesaid sub-section was later deleted by Act (i)  [1958] S.C.R. 822. 831 VIII  of  1952,  and  a  new  section,  namely,  s.  23A,was introduced  which provided inter alia that the  restrictions imposed  by sub-ss. (1) and (2) of s. 8 shall be  deemed  to have been imposed under s. 19 of the Sea Customs Act and all the  provisions  of that Act shall have  effect  accordingly except  that s. 183 thereof shall have effect as if for  the word  " shall " therein, the word " may " were  substituted. At  the time relevant for the purpose of the  present  case, sub-s.  (3)  of s. 8 was in full force and  effect  and  the question  under  our consideration has to  be  decided  with reference to that sub-section.  We then come to s. 23 of the Foreign Exchange Act which at the relevant time was in these terms:- " 23.  Penalty and Procedure.-(1) Whoever contravenes any of the  provisions  of this Act or of any  rule,  direction  or

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order made thereunder shall be punishable with  imprisonment for  a  term which may extend to two years or with  fine  or with both, and any Court-trying any such contravention  may, if  it thinks fit and in addition to any sentence  which  it may impose for such contravention, direct that any currency, security,  gold  or silver, or goods or  other  property  in respect of which the contravention has taken place shall  be confiscated. (2)............................................................ (3)   No  Court  shall  take  cognisaince  of  any   offence punishable under this section...... except upon a  complaint in writing made by a person authorised in this behalf by the Central  Government  or  the Reserve Bank by  a  general  or special order: Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction  or order  made thereunder which prohibits the doing of  an  act without  permission, no such complaint shall be made  unless the  person  accused  of  the  offence  has  been  given  an opportunity of showing that he had such -permission. (4)  If  the person committing an offence  punishable  under this  section  is a company or other body  corporate,  every director, manager, secretary, or other 106 832 officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be  guilty of such offence." Turning now to the Sea Customs Act, we start with s.   19 which is in Chapter IV.  It says- "  19.   The Central Government may, from time to  time,  by notification  in the Official Gazette, prohibit or  restrict the  bringing  or  taking by sea or by  land  goods  of  any specified  description  into  or out  of  India  across  any customs frontier as defined by the Central Government." Section 167 occurs in Chapter XVI of the Sea Customs Act and in so far as it is relevant for our purpose, it states- "  167.  The offences mentioned in the first column  of  the following  schedule  shall  be  punishable  to  the   extent mentioned in the third column of the same with reference  to such offences respectively:-            Section of Offences.         this Act to         Penalties.            which offence            has reference. 8. If any goods the                Such goods shall be    importation or                  liable to confiscation    exportation of                  and any person concerned    which is for the                in any such offence shall    time being prohibited           be liable to a penalty    or restricted by or   18 $ 19   not exceeding three times    under Chapter IV of this        the value of the goods,    Act, be imported into           or not exceeding one    or exported from India          thousand rupees    contrary to such    prohibition or    restriction; Section  182 of the Sea Customs Act deals with  adjudication of  confiscation  and  penalties  referred  to  in  s.   167 aforesaid.  It states- 833 " 182.  In every case, except the cases mentioned in section 167,  Nos  26, 72 and 74 to 76, both  inclusive,  in  which, under  this  Act, anything is liable to confiscation  or  to increased  rates  of  duty; or any person  is  liable  to  a

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penalty,  such  confiscation,  increased  rate  of  duty  or penalty may be adjudged- (a)  without   limit,  by  a  Deputy   Commissioner   Deputy Collector of Customs, or a Customs-collector; (b)  up  to confiscation of goods not exceeding two  hundred and fifty rupees in value, and imposition of penalty   or increased  duty,  not exceeding one hundred  rupees,  by  an Assistant Commissioner or Assistant Collector of Customs; (c)  up to confiscation of goods not exceeding fifty  rupees in  value, and imposition of penalty or increased  duty  not exceeding ten rupees, by such other subordinate officers  of Customs  as  the Chief Customs-authority may, from  time  to time, empower in that behalf in virtue of their office: Provided  that the Chief Customs-authority may, in the  case of any officer performing the duties of a Customs-collector, limit  his  powers to those indicated in clause  (b)  or  in clause  (c) of this section, and may confer on any  officer, by name or in virtue of his office, the powers indicated  in clauses (a), (b) or (c) of this section." Section 183 has an important bearing on one of the questions urged before us and is in these terms: " 183.  Whenever confiscation is authorised by this Act, the officer  adjudging it shall give the owner of the  goods  an option  to  pay  in lieu of confiscation such  fine  as  the officer thinks fit." Section  184  of the Sea Customs Act  states  that  whenever anything  is  confiscated  under s. 182,  such  thing  shall thereupon  vest  in Government, and  the  officer  adjudging confiscation  shall  take and hold possession of  the  thing confiscated and every officer of police, on the  requisition of  such  officer, shall assist in taking and  holding  such possession.   Section  186 of the Sea  Customs  Act  states, inter  alia, that the award of any confiscation, penalty  or increased  rate  of  duty under the Act  by  an  officer  of Customs shall not prevent the 834 infliction  of any punishment to which the  person  affected thereby is liable under any other law. Now,  the argument urged on behalf of the appellant  arising as it does out of s. 8(3) of the Foreign Exchange Act and s. 19 of the Sea Customs Act is this.  Under sub-s. (3) of s. 8 a  restriction imposed by a notification made  under  sub-s. (1)  of  the section shall be deemed to  have  been  imposed under s. 19 of the Sea Customs Act and all the provisions of the  Sea Customs Act shall have effect accordingly; but  the argument  is  that this deeming provision is subject  to  an important  qualification  contained  in  the  words  without prejudice  to the provisions of s. 23 of this Act’,  meaning thereby  the Foreign Exchange Act.  The contention  is  that though  the restriction imposed under sub-s. (1) of s. 8  is to  be  deemed to have been imposed under s. 19 of  the  Sea Customs  Act,  such deeming is to be without  prejudice  to, that  is, subject to the provisions of s. 23 of the  Foreign Exchange Act; therefore, where a contravention of any of the provisions of the Foreign Exchange Act has taken place  such as  is  punishable  under s. 23  thereof,  the  only  remedy available  in such a case is the one under s. 23 and  it  is not  open to the Customs authorities to take action  against the  offender  under  ss. 167 (8), 182 and 183  of  the  Sea Customs  Act.  It is contended that this is the  true  scope and  effect  of sub-s. (3) of s. 8 of the  Foreign  Exchange Act, if due regard is paid to the clause ’without  prejudice to  the provisions of s. 23 of this Act  occurring  therein. It  is further pointed out that there is power under  s.  23 itself  to  confiscate  the goods in respect  of  which  the

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contravention has taken place. On  behalf of respondents I to 3, however, it  is  contended that the clause " without prejudice to the provisions of  s. 23 " does not mean "subject to the provisions of s. 23 " and its true effect is merely this: when there is  contravention of  the restrictions imposed by sub-s. (1) and (2) of s.  8, which restrictions are deemed to have been imposed under  s. 19  of  the Sea Customs Act, the contravention  may  have  a double effect; it involves a violation of the provisions  of the Sea Customs Act and may at the same time involve      835 a violation of the provisions of the ForeignExchange    Act and, if the offender is known, two remedies may be available to the authoritiesconcerned;  one  remedy  is  to  proceed under the relevant provisions of the Sea Customs Act and the other under the relevant provisions of the Foreign  Exchange Act.   These  two  are concurrent remedies,  which  are  not mutually  exclusive, though in the matter of punishment  the question  may arise whether a person can be  punished  twice for the same act or offence. On  a  careful consideration of these rival  contentions  we have come to the conclusion that it is not necessary on  the facts  of the present case to decide the larger question  as to  whether  two remedies are available to  the  authorities concerned  in  respect of a contravention which  comes  both under  the Sea Customs Act and the Foreign Exchange Act  and if  so,  to  what extent the two  remedies  are  concurrent, cumulative  or otherwise.  Let us confine ourselves  to  the application  of sub-s. (3) of s. 8 of the  Foreign  Exchange Act  to  the facts of this case.   That  sub-section  states firstly,  that the restrictions imposed by sub-ss.  (1)  and (2) shall be deemed to have been imposed under s. 19 of  the Sea  Customs  Act ; secondly, it states that  the  aforesaid deeming   provision  shall  be  without  prejudice  to   the provisions  of  s.  23  of the  Foreign  Exchange  Act;  and thirdly,  it  states  that all the  provisions  of  the  Sea Customs Act shall have effect accordingly.  The construction put forward on behalf of the appellant Company is that where s.  23 of the Foreign Exchange Act is applicable, any  other remedy under the Sea Customs Act is barred; because that  is the effect of the second part of the sub-section which  says that the deeming provision shall be without prejudice to the provisions  of  s. 23 and the concluding part  of  the  sub- section  which  says  that all the  provisions  of  the  Sea Customs  Act shall have effect accordingly is controlled  by the  second part, as is indicated by the use of the  word  ’ accordingly  therein.  The learned Solicitor-General has put forward  a  different construction.  According to  him,  the second  part  of  the  sub-section  when  it  says   without prejudice to the provisions of s. 23’ merely 836 means  that the remedy under s. 23 is also available  in  an appropriate  case, but it does not bar the remedy  available under  the  Sea  Customs  Act;  otherwise,  the  third   and concluding  part of the sub-section is  renderedotiose.   He has  further  suported his contention by a reference  to  s. 23A,  inserted  in 1952, which repeats  the  phraseology  of deleted  sub-s. (3) of s. 8 but makes it sufficiently  clear what  the meaning of the clause I without prejudice  to  the provisions of s. 23 is. We do not so decide, but let us assume that the construction put  forward  on  behalf of the appellant is  the  one  that should be accepted in this case.  The question then  is-does s. 23 of the Foreign Exchange Act apply to the facts of this case  and could the appellant Company be  proceeded  against

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under  that  section ? A distinction must at once  be  drawn between  an  action  in rem and a  proceeding  in  personal. Section  23  of  the Foreign Exchange Act  is  a  proceeding against  the offender, and is applicable to the  person  who contravenes  any of the provisions of that Act, even  though on a conviction for such contravention, the Court may, if it thinks  fit  and in addition to any sentence  which  it  may impose  for  such contravention, direct that  the  goods  in respect  of  which  the contravention  has  taken  place  be confiscated.   In  substance it is a  proceeding  against  a person for the purpose of penalising him for a contravention of  the provisions of the Foreign Exchange Act, and  such  a proceeding  is available when the offender is known.   Take, however,  a  case  where the  offender  (the  smuggler,  for example) is not known, but the goods in respect of which the contravention  has  taken  place are  known  and  have  been seized.  Section 167(8) of the Sea Customs Act  contemplates a case of this nature, when it describes the offence in col. 1 in the following words- ,,  If  any goods, the importation or exportation  of  which is............ prohibited or restricted be imported into  or exported   from  India  contrary  to  such  prohibition   or restriction." The  penalty provided is that the goods shall be  liable  to confiscation.   There is a further provision in the  penalty column that any person concerned in any such 837 offence  shall  be liable to a penalty not  exceeding  three times the value of the goods etc.  The point to note is that so far as the confiscation of the goods is concerned, it  is a  proceeding  in and the penalty is  enforced  against  the goods whether the offender is known or not known; the  order of  confiscation  under s. 182, Sea  Customs  Act,  operates directly  upon the status of the property, and under s.  184 transfers an absolute title to Government.  Therefore, in  a case where the Customs authorities can proceed only  against the goods, there can be no question of applying s. 23 of the Foreign  Exchange  Act  and even  on  the  construction  put forward  on behalf of the appellant Company as  respects  s. 8(3),  the  remedy  under the Sea Customs  Act  against  the smuggled  goods cannot be barred; when on the facts  of  the case  s.  23  can  have  no  application,  no  question   of prejudicing its provisions by the adoption of the  procedure under the Sea Customs Act can at all arise. Bose J. was fully aware of this distinction between s. 23 of the  Foreign Exchange Act and s. 167(8) of the  Sea  Customs Act.  Indeed, he expressly said that he had no doubt that in appropriate cases where s. 23 is not attracted, recourse can be  had  to s. 182 of the Sea Customs Act; but  lie  thought that the notice which was issued to the appellant Company in this case on June 20, 1951, showed that the intention was to proceed  against the offender also, and this,  according  to him, made a difference and brought in s. 23.  We are  unable to agree.  We have quoted. the notice in an earlier part  of this judgment.  The notice asked the appellant to show cause why penal action should not be taken against it and the gold under  the provisions of s. 167(8) for alleged violation  of s.  19,  Sea Customs Act, and s. 8,  Foreign  Exchange  Act. Neither  the  notice, nor the note  of  the  Superintendent, Preventive Service (enclosed with the notice) suggested that the  appellant  was the smuggler and, therefore,  liable  to penalty  under s. 23 of the Foreign Exchange  Act.   Section 167(8)  of  the Sea Customs Act provides for  two  kinds  of penalties  when  contraband  goods  are  imported  into   or exported from India; one is confiscation of the

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838 goods which is an order in rem and the other is a penalty on the  person  concerned  in any such offence;  that  is,  the offence described in column I of item (8).  Taking the  view most  favourable to the appellant, it may be said  that  the notice contemplated both kinds of proceedings namely one  in rem  and  the other in personam and asked the  appellant  to show   cause  against  the  imposition  of  both   penalties mentioned  in the third column of s. 167(8); but the  notice did  not show any intention, nor did it suggest even a  pos- sibility, of proceeding against the appellant under s. 23 of the   Foreign  Exchange  Act.   There  is,  we   think,   an appreciable  difference  between the expression  any  person concerned in any such offence’ occurring in the third column of  s.  167(8)  of the Sea Customs Act  and  the  expression whoever  contravenes  any  of the  provisions  of  this  Act occurring  in s. 23 of the Foreign Exchange Act.   A  person may  be  concerned  in the  importation  of  smuggled  gold, without   being  a  smuggler  himself  or  without   himself contravening  any of the provisions of the Foreign  Exchange Act.   In  this sense, the scope of s. 167(8),  Sea  Customs Act, is different from that of s. 23 of the Foreign Exchange Act.   Moreover,  in the case under our  consideration,  the only penalty imposed under s. 167(8) was the confiscation of the gold which indicates that the authorities proceeded with the  proceeding  in  rem  and  dropped  the  proceeding   in personam;   therefore,  no  question  of   prejudicing   the provisions  of  s. 23, Foreign Exchange Act, arose  in  this case.   We think that Bose J. was in error in thinking  that the  adoption  of the procedure under the  Sea  Customs  Act prejudiced  in  any  way the provisions of  s.  23,  Foreign Exchange Act, in the present case. On  this  finding, it is unnecessary to go into any  of  the larger  questions  which  were canvassed before  us  in  the course  of arguments.  We were addressed at some  length  on (1) what would happen to the smuggled goods if the  offender died  in  the  course  of  a trial  tinder  s.  23  and  the provisions  of the Sea Customs Act were not available;  (ii) what  would  be the position if two  contradictory  findings were given with regard to the 839 goods-one  by the Customs authorities under the Sea  Customs Act  and  the  other  by the Court  tinder  s.  23,  Foreign Exchange Act-in case two concurrent remedies were open;  and (iii)  what  would  happen to the  safeguards  given  to  an accused  person under s. 23, if it were open to the  Customs authorities  to  by-pass  s. 23,and proceed  under  the  Sea Customs  Act.  These are interesting and, may be,  important questions;  and we have no doubt that they will  be  decided when  they really fall for decision in an appropriate  case. In the case under present consideration, it is sufficient to state  that on the facts found, no prejudice was  caused  to the provisions of s. 23 by adopting the procedure  resulting in the impugned order of confiscation, and the contention of the   appellant   that  the  Customs  authorities   had   no jurisdiction  to adopt the procedure under the  Sea  Customs Act cannot be accepted as correct. This brings us to the second main contention urged on behalf of  the appellant.  By the impugned order the  Collector  of Customs  confiscated the gold, and in lieu thereof gave  the appellant  an option to pay a fine of Rs  10,00,000  (Rupees ten  lakhs).  It is not disputed that the impugned order  up to  the extent stated above was within his  jurisdiction  to make.  The Collector, however, imposed two other  conditions for  the  release  of  the confiscated  gold;  one  was  the

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production  of  a permit from the Reserve Bank of  India  in respect  of  the gold within four months from  the  date  of despatch of the impugned order and the other was the payment of  proper  customs  duties and other  charges  leviable  in respect  of the gold within the same period of four  months. The  High  Court  held,  rightly in  our  opinion  that  the Collector  had no jurisdictin  to imposposed  the  aforesaid two conditions.  It has been fairly concened by the  learned Solicitor-General that there is no provision in the  Foreign Exchange Act or the Sea Customs Act under which the  Reserve Bank could give permission in respect of smuggled gold  with retrospective effect; if it could, there would be no offence under s.  167(8) and the order of confiscation itself  would be 107 840 bad.  As to the second condition of payment of customs  duty etc.,  the  learned  Solicitor-General  referred  us  to   a decision of the Bombay High Court in Keki Hormasji Elavia v. The  Union  of  India (Civil Application No.  1296  of  1953 decided on August 18, 1953) referred to in a Compilation of. Judgments  in Customs Cases, published by the Central  Board of  Revenue,  and submitted that customs  duty  was  payable under  s. 88 of the Sea Customs Act, as in the Bombay  case. The facts of the Bombay case were entirely different; it was found there that the goods, which were toilet and  perfumery goods, had been smuggled through the port of Kantiajal  near Surat   without   payment   of  any  duty   and   in   those circumstances, it was held that s. 88 applied.  In the  case before  us  there is no finding by what means the  gold  was smuggled-by sea or landand it is difficult to see how s. 88, which relates to goods not cleared or warehoused within four months  after  entry of vessel, can be of any  help  in  the present Case. We are, therefore, of the view that the Collector of Customs had  no  jurisdiction to impose any of  the  two  conditions mentioned  above-.  What then is the result?  On  behalf  of the  appellant  it has been argued that the  order  being  a composite  and  integrated order, it is not  severable;  and secondly, it is contended that on an application for a  writ of certiorari, the superior Court must quash the whole order when  it  is found to be bad and in excess  of  jurisdiction even as to a part thereof The question of severability  does not  present any great difficulty.  It has been the  subject of  consideration in more than one decision of  this  Court, and  in the recent decision in R. M. D.  Chamarbaugwalla  v. Union  of  India (1) the principles governing it  have  been summarised.  Applying those principles we find no difficulty in  holding  that  the invalid  conditions  imposed  by  the Collector are not so inextricably mixed up that they  cannot be  separated from the valid order of confiscation and  fine in  lieu thereof; there is also no doubt that the  Collector would have passed the order of confiscation and fine in lieu thereof on his finding (1)[1957] S.C.R. 930. 841 that  the gold was smuggled gold, even if he  realised  that the  conditions  he was imposing were invalid;  it  is  also clear  that  the  conditions do not form part  of  a  single scheme  which  can be operative only as  a  whole.   Learned counsel for the appellant has referred us to the sixth  rule enunciated  in  Chamarbaugwalla’s decision (supra)  and  has contended that if the invalid conditions are expunged,  what remains  of  the impugned order cannot be  enforced  without making  an alteration or modification as to the  time  limit

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fixed, and therefore the whole order must be struck down  as void.  We are unable to agree.  The sixth rule aforesaid  is based  on the ground that the Court cannot make  alterations or  modifications  in  order to enforce what  remains  of  a statute  after  expunging  the invalid  portions  thereof  ; otherwise  it will amount to judicial legislation.  No  such consideration  arises  in the case before us.  There  is  no legal difficulty in enforcing the rest of the impugned order after  separating the invalid conditions therefrom;  on  the passing  of  the order of confiscation, the  gold  vests  in Government  and  s. 183 does not make it obligatory  on  the Collector  to  fix a time limit for payment of the  fine  in lieu  of confiscation.  It is really for the benefit of  the owner that a time is fixed for payment of the fine.  Even if the time limit is altered, by no stretch of imagination  can it be said that such alteration amounts to judicial legisla- tion.  For these reasons we agree with the Division Bench of the  High Court that the invalid conditions imposed  by  the Collector  in this case are severable from the rest  of  the impugned order. Learned  counsel has relied on the decision in The  King  v. Willesden  Justices,  Ex parte Utley(1) for  his  contention that  the High Court has no power, on certiorari,  to  amend the  impugned order by striking out the invalid  conditions; nor  has  this  Court,  on an appeal from  an  order  on  an application for the issue of a writ of certiorari, any power higher  than that of the High Court.  He has contended  that the  essence  of  the  remedy  of  certiorari  is  that   it necessarily  involves revising the decision of the  inferior court to which it is (1)[1948] 1 K. B. 397. 842 directed  in one of three ways: (a) by quashing it ; (b)  by removing  the  case and trying it in a  court  of  competent jurisdiction  ;  or  (c)  by  causing  it  to  be   reheard. According to English precedents, so argues learned  counsel, certiorari  involves  an examination of a  decision  of  the Court  to which it is addressed to see " What of  right  and according to the law and custom of England we shall see  fit to  be done " (see Short and Mellor’s Practice of the  Crown Office, 2nd Edn. pp. 504-505).  We do not think that we  are called upon in this case to go into the early history of the prerogative writ of certiorari in England or even to decide. what  is  the extent of the power of the High  Court,  on  a prayer  for the issue of a writ in the nature of a, writ  of certiorari,  under  Art. 226 of the  Constitution.   Broadly speaking, it is true that an essential feature of a writ  of certiorari is that the control which is exercised through it over  judicial or quasi-judicial tribunals or bodies is  not in  an  appellate  but  supervisory  capacity.   This  Court observed in T. C. Basappa v. T. Nagappa and Another (1), at p. 257- "  In granting a writ of certiorari the superior Court  does not  exercise the powers of an appellate Tribunal.  It  does not   review  or  reweigh  the  evidence  upon   which   the determination of the inferior Tribunal purports to be based. It  demolishes  the order which it considers to  be  without jurisdiction  or palpably erroneous but does not  substitute its  own  views  for those of the  inferior  Tribunal.   The offending  order or proceeding so to say is put out  of  the way as one which should not be used to the detriment of any person." In the same decision, it was also observed: "  In view of the express provisions in our Constitution  we need  not  now  look  back  to  the  early  history  or  the

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procedural technicalities of these writs in English law, nor feel  oppressed  by  any difference  or  change  of  opinion expressed  in  particular cases by English Judges.   We  can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long  as we keep (1)[1955] 1 S.C.R- 250. 843 to  the broad and fundamental principles that  regulate  the exercise  of  jurisdiction in the matter  of  granting  such writs in English law." In  King  v. Willesden Justices (supra)  the  applicant  was convicted and fined pound 15 for failure to stop his vehicle on  being  so  required by a police  constable  in  uniform, contrary  to the Road Traffic Act, 1930, s. 20,  sub-section 3.  The  ground  for the application was  that  the  maximum penalty  prescribed by s. 20, subsection 3, for the  offence in  question  was a fine of pound 5 and that  therefore  the penalty  of pound 15 imposed by the justices was bad in  law and  in  excess of their jurisdiction.  Lord Goddard  C.  J. said: " Our attention has been called to several cases,  including Reg.  v. Stade, (1895) 64 L. J. (M.  C.) 232, Reg.  v.  Kay, (1873) L. R. 8 Q. B. 324, and Reg. v. Cridland, (1857) 7  E. & B. 853, but having considered them all, my opinion remains as it was at the outset, that if a sentence be imposed which is  not  authorised  by law for the offence  for  which  the defendant is convicted, that makes the conviction bad on its face  and being a bad conviction, it can be brought up  here to be quashed, and when so brought up, must be quashed,  for this  court  has no power, and never has had any  power,  on certiorari, to amend the conviction." It  is  worthy of note that the decision  proceeded  on  the footing  that the man had a penalty imposed upon  him  which the  law  did  not permit him to suffer and  that  made  the conviction bad; and the conviction being bad, the  applicant was entitled to his order of certiorari. But  we think that there is a more convincing answer to  the contention urged on behalf of the appellant.  In an  earlier part of this judgment. we have quoted in extenso the prayers which  the  appellant had made in its petition in  the  High Court.  The appellant did not confine itself to asking for a writ of certiorari only, but asked for a mandamus  requiring respondents  I  to 3 to forbear from giving  effect  to  the orders  of seizure, detention and confiscation of  the  gold and  further  requiring them to return the  gold,  and  also asked for a writ of prohibition restraining respondents 844 1  to 3 from taking further steps in pursuance of the  order of confiscation.  These prayers were neither unnecessary nor a inere surplusage; they were appropriate for the purpose of avoiding the conditions which the Collector had imposed  for release  of  the  gold.   It  is  well  settled  that  where proceedings  in  an inferior court or  tribunal  are  partly within and partly without its jurisdiction, prohibition will lie  against doing what is in excess of  jurisdiction.  (see Halsbury’s Laws of England, 3rd Edn. vol. 11, para. 216,  p. 116).   In  the recent decision in Dalmia’s case,  Shri  Ram Krishna   Dalmia  V.  Shri  Justice  S.  R.  Tendolkar   and others(1),  this  Court held a part of a  notification  made under s. 3 of the Commission of Enquiry Act (LX of 1952)  to be  bad, and holding that it was severable from the rest  of the  notification,  deleted  it and held that  rest  of  the notification to be good. Therefore,  we do not see any insuperable difficulty in  the

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present  case  in  prohibiting  respondents  I  to  3   from enforcing the two invalid conditions which the Collector  of Customs  had imposed for release of the gold on  payment  of the fine in lieu of confiscation, and the time limit of four months fixed by the Collector must accordingly run from  the date of this order. The  only  other points that require consideration  are  the points  urged on behalf of the two banks, respondents 4  and 5. These respondents say that though the general property in the  goods  pledged  remained with the  pledgor,  a  special property  passed  to the pledgee in order that he  might  be able to sell the pledge if and when his right to sell arose. They  complain that they have been deprived of this  special property  by  reason  of the  proceeding  resulting  in  the impugned-  order, adopted under the Sea Customs Act  by  the Collector  of  Customs;  they contend that  their  right  is guaranteed under Art. 19(1)(f) of the Constitution, and  the provisions  of  the Sea Customs Act in so far as  they  take away  the pledgee’s right without providing for a notice  to the  pledgee  or  an  option to pay  the  fine  in  lieu  of confiscation   are  not  reasonable  restrictions   in   the interests of the general (1)[1959] S.C.R. 279. 845 public  within the meaning of el. (5) of the  said  Article. Our  attention has been drawn to s. 19A of the  Sea  Customs Act   which   enables  the  Central   Government   to   make regulations,  either  general  or  special,  respecting  the detention and confiscation of goods the importation of which is  prohibited, and the conditions, if any, to be  fulfilled before   such  detention  and  confiscation,  and  also   to subsection (1) thereof under which the Chief Customs Officer may  require  the regulations to be complied  with  and  may satisfy  himself in accordance with those  regulations  that the goods are such as are prohibited to be imported.  It  is pointed  out that no regulations have yet been made, and  in the absence of any regulations the Customs officers have  an uncontrolled  and unguided power in the matter of  detention and confiscation of goods. So far as the Nationale Handels Bank N. V., respondent 4, is concerned,  it has no right under Art. 19.  Assuming that  a company  can  be a citizen as defined in  the  Constitution, respondent  4 admittedly is a foreign Company possessing  no rights of a citizen of this country.  On the same assumption the Bharat Bank Ltd., respondent 5, being an Indian  Company may  have the rights of a citizen under Art. 19; but in  the circumstances  which  we shall presently state,  we  do  not think  that  its  complaint  as  to  the  infraction  of   a fundamental  right  can  be raised  at  this  stage.   Apart altogether   from  the  considerations  which  the   learned Solicitor-General  has  pressed  (as to  which  it  is  -un- necessary for us to express any final opinion), namely,  (1) that  a pledgee cannot have a right higher than that of  the pleader,  (ii)  that the pledgor does not cease  to  be  the owner  by reason of the pledge, and (iii) that in an  action in  rem the order operators directly upon the status of  the property and, as in this case, vests the property absolutely in  Government, there are certain other circumstances  which militate against the claim now put forward by respondent  5. The  order  of the Collector shows that all  throughout  the adjudication  proceedings  respondent 5 was  represented  by counsel  before  the Collector.  The  Collector  passed  his order oil May 14, 1952, and a copy was forwarded 846 to  respondent 5. The respondent took no steps  against  the

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order,  but was content with its position as  respondent  to the  application  which the present appellant filed  in  the High  Court.  It is also to be noticed that the  Collector’s order  shows that he was not fully satisfied with the  story of  the  appellant that the gold had been pledged  with  the Banks  in the manner suggested.  So far as the  transactions with the Bharat Bank are concerned, he said: "  The Majud Bahi (stock book) of the firm showed a  closing balance  of gold weighing tolas 2,457-6-0 as lying with  the Bharat  Bank  Ltd.,  on 17th  November,  1950,  whereas  the closing  balance  on  that  date  according  to  the  Bank’s statement  was tolas 4,651-14-0.  The firm’s  representative gave  reasons  for  this difference which  was  mainly  that instructions  were  given  to the Bharat Bank  on  the  17th November,  1950  to send gold weighing  tolas  2,236-7-0  to Sewadin  Bansilal of Bombay but the actual delivery of  this gold  to this person at-Bombay did not take place until  the 22nd  November 1950.  The Auditors, however,  observed  that they  had  not  seen any correspondence  with  the  Bank  in support  of  the  above  information  which  they   received verbally." In  the  High  Court  when  the  case  was  before  Bose  J. respondent  5  challenged  the order  of  the  Collector  on several  points  including  the alleged  infraction  of  his fundamental   right.   This  objection  was  not,   however, accepted,  and Bose J. allowed the writ application  on  two other  grounds  which  we have mentioned  earlier.   In  the appeal before the Division Bench, respondent 5 again  relied on  Art.  19 (1) (f ), and the Division Bench  affirmed  the finding  of  Bose  J. that as the Sea Customs  Act  did  not directly  legislate in respect of the freedom guaranteed  by Art.  19 (1) (f ), that Article had no application.   Again, respondent  No.  5 took no steps against  the  judgment  and order  of the Division Bench dated July 3,  1953-a  judgment and  order which it now challenges as incorrect.  All  along the  line,  it  preferred to sail  with  the  appellant  but figuring  as  a respondent only; it was  the  appellant  who moved the High Court for a certificate, obtained such 847 certificate   and  brought  this  appeal  to   this   Court. Respondent  5 took no action against the judgment and  order of  which it now complains.  In these circumstances,  we  do not  think that respondent 5 can now be allowed to  complain of  a  violation of its fundamental right,  apart  from  and independently of the appellant. The result, therefore, is as follows.  The impugned order is good  as to the confiscation of the gold and the payment  of fine  in  lieu  thereof.   The  Collector  of  Customs   had jurisdiction to make that order on his finding that the gold was  smuggled  gold.  He, however, had  no  jurisdiction  to impose  the  other two conditions which he imposed  for  the release  of the gold.  Though the High Court held on  appeal that the invalid conditions were severable from the rest  of the order, it did not give any appropriate direction regard- ing those conditions as it should have done, but allowed the appeal and dismissed the writ application in too.  We  think that  the  appropriate  order to pass in  this  case  is  to dismiss the writ application in so far as it seeks to  quash the  impugned  order  of confiscation of the  gold  and  the payment  of fine in lieu thereof, and to allow it in so  far as it wants a direction restraining respondents 1 to 3  from enforcing   the  two  invalid  conditions  imposed  by   the Collector   of   Customs,  which  the   Collector   had   no jurisdiction to impose.  The time limit of four months given by the Collector will accordingly run from the date of  this

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order. The appeal is accordingly allowed to the very limited extent indicated  above  but dismissed as to the rest, and  in  the circumstances  of  this case, particularly in  view  of  the invalid conditions imposed by the Collector, we direct  that the parties must bear their own costs of the hearing in this Court. Appeal allowed in part. IQ$ 848