Full Judgment Text
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PETITIONER:
INDRU RAMCHAND BHARVANI AND OTHERS
Vs.
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT22/07/1988
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RANGNATHAN, S.
CITATION:
1988 SCR Supl. (1) 544 1988 SCC (4) 1
JT 1988 (3) 732
ACT:
Customs Act, 1962: Sections 110, 112 and 123-Seizure of
goods on reasonable belief that they are smuggled-Whether
reasonable belief could be based on presumptions-Diamonds
have great potential for smuggling.
Administrative Law-Statutory authorities and tribunals-
Finding on facts based on no evidence-Question of law
arises-Courts to interfere-Whether a person has had a fair
hearing-Conscience of Court to be satisfied.
HEADNOTE:
On receiving secret information that smuggled diamonds
had been kept by petitioners Nos. 1 and 2 in the premises of
M/s Gems Impex Corporation, Bombay, petitioner No. 3, which
firm was being managed by Petitioners Nos. 1 and 2, the
Customs officers searched the premises and found large
quantities of unaccounted diamonds, precious stones, pearls,
gold manufactures, Indian currency etc. The petitioners
showed their inability to produce evidence of legal
acquisition of the goods except to state that they had
purchased these locally on cash payment. The cash books
however revealed no such payment. Various incriminating
documents were also found. On these facts, the Customs
officers formed a prima facie belief under section 110 read
with section 123 of the Customs Act, 1962 that the
unaccounted diamonds were smuggled goods, and seized them.
In his statement recorded under section 108 of the Act,
petitioner No. 2 produced certain notes issued by four
dealers saying that some quantity of diamonds had been given
to the petitioners on approval basis. The said dealers when
questioned under section 108 stated that they had issued
anti-dated and fake notes in order to help the petitioners.
The explanation given by the petitioners having been found
unacceptable, a show cause notice was issued’ to the
petitioners who were called upon to explain as to why the
goods be not confiscated and penalty imposed. In reply, the
petitioners stated that the goods were Iying with them on
approval basis and relied on affidavits of other diamond
merchants and persons. These transactions were however not
entered in the books of accounts of the dealers and persons
who filed the affidavits.
545
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The Collector of Customs by his order directed release
of jewellery but ordered absolute confiscation of various
officer goods including the diamonds and also imposed heavy
penalties under section 112 of the Act. An appeal to the
Collector of Customs under 128 of the Act failed. The
Customs, Excise & Gold (Control) Appellate Tribunal
confirmed the order of confiscation in respect of diamonds.
The Tribunal held that seizure of diamonds was in the
reasonable belief that these are smuggled goods and
consequently the onus of proof, according to section 123 of
the Act, was on the petitioners which they had failed to
discharge. The Tribunal however reduced the penalties
imposed under section 112.
The petitioners challenged the Tribunal’s order before
the High Court of Delhi under Article 226. Moreover, on an
application filed by the petitioners under section 130 of
the Act, the Tribunal referred two questions to the Bombay
High Court. The reference pending in the Bombay High Court
was transferred by the supreme Court to the Delhi High
Court, and both the Writ Petition and the reference were
heard and disposed of together.
The contentions raised before the High Court and
reiterated before this Court were (1) that there was no
material before the Customs officer to form the reasonable
belief that seized goods were smuggled goods, and the
seizure was bad in law, and therefore the provisions of
section 123 of the Act did not apply, (2) that assuming that
the onus was upon the petitioners, they had amply discharged
the said burden by tendering affidavits; (3) that there was
no profit element in smuggling the diamonds and, hence, no
presumption should be inferred against the petitioners; and
(4) that the conclusions of the fact-finding body or
statutory authority must be arrived at after giving fair
opportunity to the party.
Dismissing the Special Leave Petition, it was,
^
HELD: (l) Section 123 of the Act itself recognises that
diamonds have great potential for smuggling into India and
that is why it is mentioned in sub-section (2) of section
123 of the Act, and onus placed on the person from whose
possession these are recovered. [552C]
(2) The High Court rightly found that there was
evidence lo presume that the goods in question were
smuggled. A large quantity of diamonds was found in the
possession of the petitioners. No trustworthy evidence,
documentary or oral, was produced in favour of the
petitioners as to its legal acquisition/importation or
possession. [551G]
546
(3) In this case there was certainly a nexus between
the available material and the formation of the belief that
the goods were liable to confiscation. The existence of the
material was justiciable but not the sufficiency. [553A-B]
(4) The conclusions arrived at by the fact-finding
bodies, the Tribunals or the statutory authorities, on the
facts, cannot be interfered with where the fact-finding body
or authority has acted reasonably upon the view which can be
taken by any reasonable man. Courts will be reluctant to
interfere in such a situation. Where however, the
conclusions of the fact-finding authority are based on no
evidence, then the question of law arises and that may be
looked into by the Courts. [553E-F]
(5) The High Court rightly found the affidavits as
merely bald statements to come to the conclusion that by
filing the affidavits the burden had not been discharged.
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[554B]
(6) A fair opportunity has two justiciable elements.
The first is that an opportunity of hearing must be given
and the second is that the opportunity must be reasonable.
Whether a person has a fair hearing can be gone into by the
Court and the Court’s conscience must be satisfied that an
Administrative Tribunal charged with the duty of deciding a
dispute has conformed to the principles of natural justice.
Judged by the aforesaid two aspects, the High Court was
right that a reasonable and fair hearing was afforded to the
petitioners. [555A-C]
Shanti Lal Mehta v. Union of India, [1983] ELT 1715;
State of Gujarat v. Mohan Lal Jitamalji Porwal, [1987] 2 SCR
364; M.A. Rasheed v. State of Kerala, AIR 1974 SC 2249; The
Barium Chemicals Ltd. & Anr. v. The Company Law Board and
ors., [1966] Suppl SCR 311; M/s Mehta Parikh & Co. v. C.l.T.
Bombay, [1956] SCR 626; Pukhraj v. D.R. Kohli, [1962] Suppl
3 SCR 866; Rabindra Kumar Dev v. State of Orissa, [1977] 1
SCR 439; Bal Kissen Kejriwal v. Collector of Customs
Calcutta & ors., AIR 1962 Cal 460, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 7799 of 1988.
From the Judgment and order dated 16.5.1988 of the
Delhi High Court in C.W. No. 963 of 1984.
R. Jagtyani and Miss Kamini Jaiswal, for the
Petitioners.
547
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This is an application under
Article 136 of the Constitution for leave to appeal against
the judgment and order of the Division Bench of the High
Court of Delhi, dated 16th May, 1988. In order to appreciate
the contentions urged before us, it is imperative to state a
few facts.
M/s. Gems Impex Corpn., Bombay, petition No. 3 herein,
is a firm engaged in the business of diamonds and precious
stones. Ramchand Udhavdas Bharvani, petitioner No. 2 herein,
is a partner in the said firm. Indru Ramchand Bharvani,
petitioner No. 1 herein, is his son. It is stated that both
the father and the son were managing the business of the
firm. The Customs officers received a secret information
that smuggled diamonds have been kept by the petitioner Nos.
1 and 2 in the said premises. After obtaining necessary
search warrant the Customs officers searched the business
premises on 16th November, 1979. It may be mentioned that
the day was not very auspicious for the firm as well as for
the people of Bombay. On that day a warning had been issued
by the Weather office, Bombay, about a possible sea storm
that night. The entire activities came to a half and the
public had been advised to rush back to their houses early.
On searching the premises of the petitioner No. 3, the
Customs officers found over 2,800 carats of rough diamonds
and over 400 carats of cut and polished diamonds in addition
to a lot of other items of precious stones, pearls, gold
manufactures etc. The books of accounts of the firm, claimed
to be written upto date, however, showed a stock of 11.96
carats of cut and polished diamonds and the stock of rough
diamonds and other articles was shown as nil. On being asked
to produce evidence of legal acquisition, import and
possession of diamonds, the petitioners Nos. 1 and 2 showed
their inability to produce any such documents. They replied
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that they had purchased the goods locally through brokers
and had already made 50% cash payment. The cash book,
however, revealed no such payment nor were any purchase
vouchers produced before the officers. When asked to name
the brokers, the petitioners Nos. 1 and 2 stated that the
brokers would not come forward to confirm the deal. The
Customs officers also found various documents which had been
described in the initial Panchanama as "various
incriminating documents". In the background of the secret
information and the facts and the circumstances aforesaid,
the Customs officers formed a prima facie belief under
section 110 read with section 123 of the Customs Act, 1962,
(hereinafter called ’the Act’), that the unaccounted
diamonds were smuggled
548
goods. They seized various goods including cut and published
diamonds and rough diamonds in all valued at Rs.54,42,882,02
under Section 110 of the Act on the reasonable belief that
the goods had been smuggled into India. They also seized
Indian currency of Rs.1.40 lakhs and some other
incriminating documents found in the premises. The only
question agitated before the High Court was regarding cut
and polished diamonds and rough diamonds. In view of the
climatic conditions the goods and the documents seized were
put in two cartons in the presence of witnesses and the
cartons were sealed with the Customs’ seal and also with the
seal provided by petitioners Nos. 1 and 2 and the signatures
were also put on the label of the cartons. A detailed
itemwise inventory of the seized goods and documents was
prepared in the Customs House, Bombay, later on 20th, 21st
and 22nd of November, 1979. The petitioners Nos. 1 & 2 were
asked by the Department to attend preparation of the
detailed itemwise inventories but they did not attend,
rather the petitioner No. 1 replied that the job could be
carried out even in his absence. The petitioners Nos. 1 and
2 were examined and their statements recorded under Section
108 of the Act.
In his statement recorded on 29th November, 1979
Ramchand Udhavdas Bharvani gave names of the 4 dealers. The
petitioners also produced certain notes issued by the said
dealers showing that some quantity of diamonds had been
given by the said dealers to the petitioner No. 3 on
approval basis. The approval basis was stated to be known in
the business circle as ’Jangad’. Some of these notes bore
dates earlier than 16th November, 1979 but neither these
notes nor any packet of diamonds covered thereby had been
found with the firm on the date of search and seizure. The
dealers named by the petitioners were questioned under
Section 108 of the Act to check the veracity of the notes.
They stated that they had issued anti-dated and fake notes
in order to help the petitioners. The diamonds covered by
these ’Jangad Notes’ were not found in possession of the
firm on the day and these were not seized. The petitioners
gave such explanation for the absence of these diamonds
dealers which were not found acceptable by the department. A
show-cause notice was, thereafter, issued on 9th May, 1980
on various persons including the petitioners. By the
showcause notice the petitioners were called upon to explain
to the Collector of Customs (Preventive) Bombay, as to why
goods mentioned in the notice and the Indian currency of
Rs.1.40 lakhs be not confiscated and the penalty should not
be imposed under Section 112 of the Act. The petitioners
duly filed a reply on 5th March, 1981 stating that the goods
seized from their custody were Iying with them on approval
basis
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549
Or Janged basis and belonged to various other dealers.
The petitioners sought reliance upon affidavits of 7
other diamond merchants, jewellers, customers etc which they
filed for the first time along with their reply to show-
cause notice after about 15 months of the seizure. These
affidavits, however, covered the entire quantity of the
goods seized. So far as the diamonds are concerned, the
affidavits of 3 other persons were filed. It was correctly
mentioned by the High Court, if we may say so, that the
diamonds were not entered in the books of accounts of the
dealers who filed the affidavits, when and from whom these
were acquired, and whether any jangad notes were issued and
if so, why, these were not mentioned in their affidavits.
The High Court has characterised these affidavits in the
judgment as a bald statement about the ownership of
diamonds. The High Court was right.
The Collector of Customs by his order dated 17th April,
1982, directed release of jewellery but ordered absolute
confiscation of various other goods including the diamonds
in question and also imposed a penalty of Rs.65 lakhs on the
petitioners under Section 112 of the Act. A penalty of Rs.25
lakhs each was imposed on the firm and petitioner No. 1 and
a penalty of Rs. 15 lakhs was imposed on petitioner No. 2.
Aggrieved thereby, the parties appealed to the Collector of
Customs under Section 128 of the Act but the same was
dismissed. The Customs Excise & Gold (Control) Appellate
Tribunal by its order dated 17th January, 1984 confirmed the
order of confiscation in respect of both the diamonds. The
Tribunal held that seizure of diamonds was in the reasonable
belief that these were smuggled goods and consequently the
onus of proof, according to Section 123 of the Act, was on
the petitioners and they had failed to discharge it in
respect of the seized diamonds. The Tribunal, however,
ordered the release of Indian currency of Rs.1.40 lakhs and
of all the confiscated goods except the diamonds. The
penalty on petitioner No. 1 was reduced to Rs. 10 lakhs and
on the petitioner No. 2 and the firm, it was reduced to Rs.
5 lakhs each. The result was that the penalty imposed on the
petitioners under Section 112 of the Act was reduced from
Rs.65 lakhs to Rs.20 lakhs.
The petitioners challenged the correctness and legality
of the Tribunal’s order dated 17th January, 1986, before the
High Court of Delhi under Article 226 of the Constitution.
Moreover, on an application filed by the petitioners under
Section 130 of the Act, the Tribunal by its order dated 8th
January, 1985 referred to Bombay High Court the following
two questions:
550
1. "Whether, in the facts and circumstances of the case
the Tribunal was justified in holding that the seizing
Customs officer had adequate material to form the
reasonable belief as contemplated in Section 110 read
with Section 123 of the Act, that the diamonds found in
the business premises of M/s. Gems Impex Corpn. were
smuggled goods?
2. Assuming that Section 123 applied and burden of
proof was on the appellants, whether the Tribunal
should have held that the appellants had discharged
this burden by tendering affidavits of persons claiming
ownership of the seized diamonds?"
By this Court’s order dated 15th July, 1987, it was
directed that the reference application pending in the
Bombay High Court should stand transferred to the Delhi High
Court and be heard along with the writ petition.
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The High Court by the impugned judgment dated 16th May,
1988, from which the appeal was sought to this Court,
disposed of the writ petition as well as answered the
questions.
Two contentions were raised before the High Court,
namely, (1) there was no material before the Customs officer
to form the reasonable belief that seized goods were
smuggled goods and, hence, the seizure itself was bad in law
and, therefore, the provisions of Section 123 of the Act
could not be applied and it was for the Customs Department
to prove that the diamonds in question were smuggled. The
Customs department having failed to prove that the seized
diamonds were smuggled the impugned order cannot be
sustained. It was secondly argued that by assuming that the
onus was upon the petitioners to prove that the seized
diamonds were not smuggled, they had amply discharged the
said burden by tendering affidavits.
The first question that had to be considered was
whether there was material for forming an opinion as to
reasonable belief under Section 110 read with Section 123 of
the Act. Section 110(1) of the Act which deals with seizure
of goods, documents and things provides as follows:
"(1) If the proper officer has reason to believe
that any goods are liable to confiscation under
this Act, he may seize such goods:
551
Provided that where it is not practicable to
seize any such goods, the proper officer may serve
on the owner of the goods an order that he shall
not remove, part with, or otherwise deal with the
goods except with the previous permission of such
officer."
Section 123 which deals with onus of proof provides as
follows: B
"(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, diamonds,
manufactures of gold or diamonds, watches, and any
other class of goods which the Central Government
may by notification in the official Gazette
specify."
Hence, the gist of these two sections is that there
must be materials to form a reasonable belief that the goods
in question are smuggled. Section 111 deals with
confiscation of property. The High Court, in our opinion,
rightly found that there was evidence to presume that the
goods in question were smuggled. A large quantity of
diamonds was found in the possession of the petitioners. No
trustworthy evidence, documentary or oral, was produced in
favour of the petitioners as to its legal
acquisition/importation or possession.
The learned Acting Chief Justice, Chadha, J &
Sabharwal, J who disposed of the matter by the judgment
under appeal, found that even a cursory look at the
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documents was adequate to show that the transac-
552
tions were of sale and purchase of diamonds in foreign
currencies. While the stock in the books showed a balance of
11.96 carats of cut and polished diamonds and nil stock of
rough diamonds, the stock found in their possession was much
more. In those circumstances the High Court came to a
conclusion that there was reasonable belief that the
diamonds were smuggled and we cannot say that such
conclusion was unwarranted.
It was contended before the High Court and repeated
before us in support of the petitioners that there was no
profit element in smuggling the diamonds and, hence, no
presumption should be inferred against the petitioners.
There was nothing on record to show that profit element was
lacking. Section 123 of the Act itself recognises that
diamonds have great potential for smuggling into India and
that is why it is mentioned in sub-section (2) of Section
123 of the Act. The onus has been placed on the person from
whose possession such articles are acquired.
In that view of the matter the High Court rightly drew
the presumption against the petitioners. However, it was
contended on their behalf that reasonable belief could not
be based on presumptions. Reliance was placed on a Bench
decision of the High Court of Delhi in the case of Shanti
Lal Mehta v. Union of India & ors., [1983] ELT 1715. There
it was asserted that the goods in question belonged to Queen
Mother of Nepal and that they were duly entered in the
account books but the accountant had gone to the Income Tax
Department. The Customs officer did not wait for the
accountant to arrive to exp lain the entries in the books of
account to him and seized the goods which in the search list
were described as ’appearing to be diamonds’. Due to these
facts the learned Single Judge held that it was not a case
of reasonable belief but only a case of suspicion. In the
instant case, as per the High Court’s order, the Customs
Deptt. had definite secret information. Despite petitioners’
assertion that the books of accounts were written up-to-date
it showed a stock of only 11.96 carats of cut and polished
diamonds and that of rough diamonds and other articles as
nil, the diamonds actually found on search were over 2800
carats of rough diamonds and over 400 carats of cut and
polished diamonds apart from various other precious stones
etc. On being asked to produce evidence of legal
acquisition, the petitioners expressed their inability.
There was good ground accompanied by rational nexus leading
to formation of the belief that the goods were smuggled.
Furthermore, the petitioners stated that they had purchased
the goods locally through the brokers and had already made
50% cash payment but the
553
cash-book showed no such payment. They also refused to
disclose brokers’ names saying that the brokers would not
come forward to confirm the deal. Besides, various
incriminating documents were also found. The existence of
the material is justiciable but not the sufficiency of the
material. In this case there is ample material, their
existence cannot be disputed. There is certainly a nexus
between these materials and the formation of the belief that
the goods are liable to confiscation. In the light of the
above Section 110 read with Section 123 has been fully
complied with.
The reasonable belief as to smuggled goods, as enjoined
in the Act, had been explained by this Court in State of
Gujarat v. Mohonlal JitamatJi Porwal & Anr., [1987] 2 SCC
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364. There this Court observed whether or not the officer
concerned had seized the article under the "reasonable
belief" that the goods were smuggled goods, is, not a
question on which the Court can sit on appeal. The
circumstances under which the officer concerned entertains
reasonable belief, have to be judged from his experienced
eye who is well equipped to interpret the suspicious
circumstances and to form a reasonable belief. See also M.A.
Rasheed & Ors. v. State of Kerala, AIR 1974 SC 2249 and The
Barium Chemicals Ltd. Anr. v. The Company Law Board & Ors.,
[1966] Suppl SCR 311. n must be reiterated that the
conclusions arrived at by the fact-finding bodies, the
Tribunal or the statutory authorities, on the facts, found
that cumulative effect or preponderance of evidence cannot
be interfered with where the fact-finding body or authority
has acted reasonably upon the view which can be taken by any
reasonable man, Courts will be reluctant to interfere in
such a situation. Where, however, the conclusions of the
fact-finding authority are based on no evidence then the
question of law arises and that may be looked into by the
Courts but in the instant case the facts are entirely
different. See the principles enunciated by this Court in
M/s Mehta Parikh & Co. v. C.l.T., Bombay,[1956] SCR 626. The
same view was expressed by this Court in Pukhraj v. D.R.
Kohli, [1962] Suppl 3 SCR 866 where while dealing with the
provisions of the Customs Act, 1878, this Court held that
Section 178 of the said Act imposed the onus of proof that
the gold was not smuggled, on the party if it was seized
under the Act. The question whether it was under the
reasonable belief or not, was a justiciable one. The facts
of this case certainly warrant the formation of belief. In
any case, once it is held that there was material relevant
and germane, the sufficiency of the material is not open to
judicial review.
The other contention urged on behalf of the petitioners
was that
554
the burden that lay upon the petitioners, had been fully
discharged to show that the goods were not smuggled. The
High Court on an analysis of the facts found that the onus
was not duly discharged and held that though the burden on
the petitioners was not as high as on the prosecution but
there must be preponderance of probabilities. The High Court
found that by filing the affidavits in this case, the burden
had not been discharged. We are in agreement with the High
Court. The facts that the affidavits had been filed long
afterwards and the names of the parties were not disclosed
at the time of search, warrant rejection of the affidavits.
These were filed after a gap of 15 months and the same were
examined minutely. The facts and figures given were checked-
up and the credibility of the deponents as well as the
credence of their version examined. Furthermore, the
affidavits must be looked on the background that those
persons who claim that they had given these diamonds on
approval basis, made no claim for all these diamonds.
Reliance was placed on a decision in the case of
Rabindra Kumar Dev v. State of Orissa, [1977] 1 SCR 439.
This Court while considering this case under the Prevention
of Corruption Act and the nature and standard of proof
required the accused under Section 105 of the Evidence Act
held that the Evidence Act does not contemplate that the
accused should prove the case with same strictness and
rigour. But in this case the nature of the evidence on which
the reliance could not be placed was rightly rejected by the
Customs and the High Court held it properly that the
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petitioners had not discharged the onus to prove that the
goods were not smuggled.
In this case there was no denial of opportunity, the
proceedings followed excluded the possibility of denial of
opportunity. The proceedings taken were in order and in
consonance with natural justice. The High Court was right in
answering the first question by saying that the Tribunal was
justified in holding that the seizing Customs officer had
adequate material to form a reasonable belief as
contemplated under Section 110 read with Section 123 of the
Act and it rightly held that the appellants had failed to
discharge the onus. The High Court answered the second
question in the negative. In our opinion, the High Court was
right.
There is, however, one aspect of the matter which was
emphasised before us, i.e. that the conclusions of the fact-
finding body or statutory authority must be arrived at after
giving a fair opportunity to the party to be effected by the
order to be passed. As has been reiterated by a Bench
decision of the Calcutta High Court in Bal
555
Kissen Kejriwal v. Collector of Customs, Calcutta & ors.,
AIR 1962 Cal. 460 a fair hearing has two justicable
elements. The first is that an opportunity of hearing must
be given and the second is that the opportunity must be
reasonable. Whether a person has a fair hearing, can be gone
into by the Court and the Court’s conscience must be
satisfied that an Administrative Tribuanl charged with the
duty of deciding a dispute has conformed to the principles
of natural justice. In that decision the Calcutta High Court
was dealing in respect of a proceeding under the Sea Customs
Act, 1878. Counsel for the appellant sought to urge before
us that a fair hearing had not been given. We have set out
the facts hereinbefore. The High Court had also examined
this aspect and rejected this challenge. In our opinion, the
High Court was right. In our opinion, judged by the
aforesaid two aspects a reasonable and fair hearing was
afforded to the petitioners. Hence, it cannot be accepted
that there was legitimate cause of grievance.
The High Court was right in disposing of the matter in
the manner it did. This application, therefore, fails and is
rejected.
R.S.S. Petition Dismissed.
556