Nemichand Bhikamchand Jain vs Collector of Customs (Preventive)

Sujata V. Manohar, J.—In this petition certain unfortunate events have happened which compel me to pass orders under the Contempt of Court Act, 1971. The petition is for return of certain gold ornaments and primary gold weighing about 1211.5 gms. and valued at Rs. 1,65,369/- which were seized by the Respondent-Collector of Customs (Preventive) on 28th July 1983. They were seized from the premises of the petitioner, which according to the petitioner, are used both for residence and for work. Certain proceedings took place in respect of these gold ornaments and gold as a result of which ultimately an order dated 28.2.1985 was passed by the Collector of Customs I Preventive) Bombay under which inter alia, the petitioner, as owner of the said gold and gold ornaments was given an option to redeem the same on payment of a fine of Rs. 30.00U/- within one month from the date of receipt of the order. Under the said order a penalty of Rs. 5.000/- was also imposed on the owner. Though the order is passed on 28.2.1985 it was issued only on 9 10 1985. Within one month of the receipt of the said order the petitioner paid the fine of Rs. 30,000/- on 8.11.1985. Thereafter the petitioner repeatedly applied to the respondents for return of the said gold and gold ornaments as directed in the said order. Inspite of repeated requests of the petitioner the said gold and gold ornaments were not returned by the respondents to the petitioner. The petitioner also moved the Customs, Excise and Gold Control Appellate Tribunal in connection with the penalty of Rs. 5.00U/-. In the order passed by the Tribunal which is dated 30.1.1986 the Tribunal has observed that if the applicant has paid the fine in lieu of confiscation the department should release the gold and gold ornaments unless the same have been attached by any other authority. There was admittedly no attachment levied by any other authority at this time. Inspite of the directions of their own Appellate Tribunal the respondents did not return the said gold and gold ornaments to the petitioner. The petitioner was therefore, compelled to file the present Writ Petition on 19th February 1986 asking for the same reliefs against the respondents.

When the matter came up for admission before me on 25th March 1986 Mr. Sethna, learned Counsel for the respondents stated that the gold and ornaments would be returned to the petitioner in the course of that very day. I also asked Mr. Sethna to find out from his clients whether there was any order from any other authority which prevented the respondents from returning the said items to the petitioner. At that time one D.A.R. Mansoori, Superintendent of Customs (Preventive), Gold Control was present in Court and after talking to him Mr. Sethna stated that there was no order from any other authority which prevented the respondents from handing over the said items to the petitioner. In view of the statements made by Mr, Sethna that the said items would be returned to the petitioner in the course of the day and since there was no impediment of any sort to such return which was only in compliance with the orders already passed, I kept the matter on 27th March 1986 since 26th March was a holiday. I did not pass any interim order in view of the statement of Mr. Sethna.

When the petition was called out on the morning of 27th March 1986 I was informed by the Advocate for the petitioner that although his client had gone to the respondents to collect the gold and gold ornaments on 25th the same were not handed over by the respondents to him. Thereupon Mr. Sethna again reiterated that the said items would be returned by the respondents to the petitioner in the course of the day. I again asked him whether there was any other order which prevented the respondents from handing over the said ornaments and gold to the petitioners. Again Mr. Sethna reiterated that there was no such order. Thereupon I kept the matter in Chambers at 4.40 p.m. on that day to make sure that the respondents would return the said items to the petitioner. At 4.40 p.m. Mr. Sethna came to my Chambers, accompanied by the Deputy Collector R. Sharma. The petitioner and his advocate were also present. The Superintendent of Customs (Preventive) Mansoori was also present in my Chambers. I was again told by the petitioner''s advocate that although he had personally gone along with the petitioner to collect the said items the respondents did not hand over the same. Mr. Sethna gave some excuses for not handing over the said items to the petitioner and his Advocate. I recollect his statement that when the petitioner went the officers had come to court and vice versa. Although the explanation was totally unsatisfactory I decided to give one more chance to the respondents to comply with the existing orders. I kept the matter again on 31st March since 28th of March was a Friday and a Court holiday, and the week-end intervened thereafter.

On the morning of 31st March 1986 Mr. Sethna conveyed to me that Mansoori who was present in Court would immediately go to his office and hand over the gold and gold ornaments to the petitioner and/or his advocate. I once again kept back the matter till 4.40 p.m. on that day. From the affidavits which have been filed before me 1 find that on 31st March 1986 at about 3.30 p.m. the petitioner along with his advocate went to take delivery of the gold and gold ornaments. The petitioner and his advocate were directed by Mansoori to see S.D Mehta, Superintendent (Custodian). The petitioner and his advocate thereupon went to S.D. Mehta who took out the box containing the said gold and gold ornaments. He called two panchas and asked the Advocate to identify the petitioner, he also asked the petitioner to sign a receipt stating that this was the usual practice of the Customs Department. The petitioner was also asked by his advocate to sign the receipt. Thereupon the petitioner signed the receipt. As soon as this was done Superintendent Mehta informed the petitioner and his advocate that the said items would be handed over to the Income Tax Officer who was present there. The petitioner has stated on affidavit that thereupon he and his advocate went to see the Deputy Collector R. Sharma and informed him that the petitioner''s signature was taken on the receipt without being handed over the gold and gold ornaments. In the meanwhile Superintendent Mehta also came to the office of Sharma, the Deputy Collector, and stated that one Joshi, an Income Tax Officer was going to take away the said items.

This entire episode is set out in the affidavit of the petitioner dated 1st of April 1986, In the affidavit in reply which is filed by Mansoori today, there is no denial of this episode. Mr. Rege who appears for the respondents for the first time today strongly relies upon the receipt signed by the petitioner and contends that the said items were in fact handed over to the petitioner. This contention has only to be stated to be rejected because yesterday i.e. on 1st of April 1986 the very same items were produced in Court by the respondents who applied that the same be kept in court. If these items had been handed over to the petitioner on the 31st March the respondents could not have produced them in Court yesterday.

Curiously enough the order from the Income Tax Department on which the respondents seem to rely so strongly and which is annexed as Exhibit ''II'' to the affidavit of Mansoori which is dated 2nd April 1986 shows that this order was only issued at 5.45 p.m. on 31st March 1986. In other words, right from 25th March till 31st March 1986 when the petitioner and/or his advocate paid numerous visits to the respondents in order to collect the gold and gold ornaments there was absolutely no reason why the respondents could not have handed over the gold and gold ornaments to the petitioner. One cannot escape the conclusion that inspite of the counsel for the respondents making repeated statements in the court, after taking instruction from his clients who were present in court, that the gold and gold ornaments would be immediately returned to the petitioner, the respondents deliberately did not return the same to the petitioner. In other words, although they made statements before the court saying that they would return these items immediately to the petitioner they bad absolutely no intention of carrying out the statements which they made before the court. I have not the slightest doubt that it was a deliberate attempt on the part of the Deputy Collector R. Sharma, the Superintendent D.A.R. Mansoori and the Superintendent S.D. Mehta to ensure that the statements made on their behalf by counsel were not carried out and to mislead the court into believing that they would immediately return the gold and ornaments by making these false and misleading statements to the court. This was done in order to prevent any interim order being passed against them. They have ensured that delivery was sufficiently delayed to enable the Income Tax Department to serve an order of attachment. This conduct, in my view, clearly amounts to a wilful breach of the statements made in the court on behalf of the respondents in their presence. It is well known that when the respondents before the court are either the State or the Agency of the State, the court relies upon the statements made on their behalf by their counsel and does not insist on an undertaking being given as in the case of other litigants. This is under a belief (possibly mistaken) that the State behaves like a gentleman and carries out its word. May be, in view of the conduct of the respondents, this concession which is granted to them by the court is misplaced and it ought to be revoked. Perhaps the entire notion of "gentlemanly conduct" is now outdated. But the statements which are taken from counsel appearing for the State or authorities of the State are equivalent to an undertaking given to court and there is a clear breach of such undertakings which was given to court in the present case. Moreover, in the present case the statements which were made in Court were made in order to mislead the court, for other ulterior motives, and to prevent an interim order being passed. Such conduct on the part of the respondents tends to lower the authority of the court and interferes with the due course of judicial proceedings. Time was taken ostensibly to carry out what the respondents mad stated in court, but in reality to defeat that very statement by securing time for being served with an order from the Income Tax authorities. This (is a clear attempt to defeat the course of justice. There has been not the slightest attempt on the part of the respondents either to apologise for their conduct or to purge themselves of the contempt which they have committed.

In the affidavit of 2nd of April 1986 a grievance is sought to be made that on account of shortage of time the respondents could not deal with the affidavit of the petitioner dated 1st of April 1986. Yesterday, (1.4.1986) when I adjourned the matter till today to enable the respondents to file an affidavit in reply, Mr. Sethna made not the slightest grievance that the time given was too short for making the affidavit. In fact, since the affidavit only dealt with the events that had happened in the last couple of days, one day''s time was more than sufficient to deal with the statements pertaining to these events. In any case the respondents did not make any grievance about the shortage of time yesterday. In the affidavit filed by them they are now complaining about shortage of time.

There is absolutely nothing which in any way mitigates the contempt which has been committed by the three officers R. Sharma, D.A.R. Mansoori and S.D. Mehta.

It is also urged by Mr. Rege that the respondents have shown their bona fides by depositing the ornaments in court. The deposit of ornaments yesterday by the respondents at their request was merely an attempt on the part of the respondents to protect themselves. They have not purged themselves of contempt in any manner by getting the ornaments deposited in court.

After I dictated this order Mr. Rege now states that the respondents should be permitted to withdraw the gold and ornaments from the custody of the Prothonotary to enable them to return the same to the petitioner. Since the gold and ornaments have been deposited in court at the request of the respondents, the respondents are permitted to take the gold and ornaments back. It is entirely for the respondents to take into account various orders in connection with this gold and ornaments which may be in existence and to decide whether they should return the gold to the petitioner or not. Such return of gold and ornaments will be entirely at the risk of the respondents and it has nothing to do with any order or direction given by me.

At the request of the respondents the matter is once again kept at 11 a.m. tomorrow for orders.

3rd April, 1986.

When the matter is called out at 11.15 a.m. today Mr. Rege, [learned Counsel for the respondents, tenders an unconditional apology and |states that the ornaments and gold have been returned to the petitioner. As far as the return of the gold and ornaments is concerned it is entirely a matter between the respondents, the petitioner and the Income Tax Department and I am not concerned with the same. The respondents have now tendered an unconditional apology. In the circumstances of the case I pass the following order :

Each of the three officers R. Sharma, D.A.R. Mansoori and S.D. Mehta are fined Rs. 150/-each. The petitioner applies for withdrawal of petition since nothing now survives. Petition allowed to be withdrawn. Needless to add, it will be open to the petitioner to take such other proceedings as he may be advised and if found necessary .