B.K. Sharma, J.
1. The four petitioners involved in this writ petition claiming themselves to be the residents of Aizwal, Mizoram, although originally belonged to Myanmar have initiated this writ proceeding in respect of seizure of 4 nos. of Hero Honda Motor Cycles from their custody on 8.4.2002 in a place called Keifang in the State of Mizoram. Such seizure was by the custom officials on suspicion that the petitioners were foreign nationals and the Motorcycles were being carried to Myanmar. A case was registered under the Customs Act, 1962 read with Export Control Order No. 1/77 dated 24.3.1977 issued under Sections 3 and 4A of the Foreign Trade (Development & Regulation) Act, 1992. The customs officials registered Custom Seizure Case No. 11/CL/EXP/CUST/AS-AIZ/2002 dated. 8.4.2002 and No. 12/CL/EXP/CUST/AS-AIZ/2002 dated 8.4.2002.
2. The petitioners were arrested and Aizawl Police Case No. 175/02 under Section 6(a) PP Rules 1950 was registered against them. The petitioners were eventually released on bail on 10.4.2002. The Motorcycles were also ordered to be released by the Magistrate, Aizawl vide order dated 11.4.2002. Being aggrieved by the said order directing release of the motorcycles, the custom authority moved this court by filing Criminal Revision No. 1/2002. The Revision Application was allowed by order dated 3.12.2002 by setting aside the order of the learned Magistrate.
3. According to the petitioners they are not foreign nationals and they have also not been declared to be so by the competent authority and thus they are entitled to hold property in India including the State of Mizoram. The case made out in the writ petition is that the petitioners ever since the seizure of the motorcycles on 8.4.2002 have been waiting for a logical conclusion to the cases registered against them. According to them they have not received any notice relating to the aforesaid proceedings and are in complete dark. They have asserted that they are entitled to get back the motorcycles and the respondents have no authority in law to keep the seized motorcycles in indefinite custody without bringing the proceedings to an end.
4. It is with the aforesaid narration of fact that the following prayers have been made in the writ petition by the petitioners.
'In the premises aforesaid it is therefore prayed that your Lordships may graciously be pleased to admit the petition, issue a Rule calling upon the respondents to show cause as to why a writ/direction as prayed for shall not be passed and/or pass an order directing the respondents,
(i) for direction to the respondents to inform the petitioners as to the pendency of case, if any initiation of proceeding and the place of proceeding against the petitioner within a specified time ;
(ii) for a direction to the State of Mizoram to dispose of the Cri TR No. 663/2002 arising out of Aizawl PS Case No. 175/2002, pending in the Court of H. Vanlaltina, Magistrate 1st Class, Aizawl, Mizoram, within a fixed period;
(iii) to quash Custom Seizure Case No. 11/CL/EXP/CUST/AS-AIZ/2002 dated 8.4.2002 and No. 12/CL/EXP/CUST/AS-AIZ/2002 dated 8.4.2002 for violation of provision of Section 124 of the Customs Act and for a direction to release the properties of the petitioners as seized on 8.4.2002 ;
(iv) for a direction to release the properties of the petitioners as seized on 8.4.2002 as provided under Section 124 of the Act.
and upon hearing the parties and on causes shown and on hearing the parties be pleased to make the Rule absolute and/or be pleased to pass such further or other order or orders as your Lordships may deem fit and proper.'
5. The respondents have filed their affidavit controverting the claim made by the petitioners. According to the revelation made in the affidavit, the seizure took place on 8.4.2002 during the vigil operation by the custom officials. The four motorcyclists were signalled to stop, but instead they drove faster and it was under that circumstances one of them was apprehended with his motor cycle. Upon such apprehension, the person concerned produced an invoice bearing No. LJ-0003-00044 and a sale letter both dated 4.4.2002 issued by M/s D.R. Brijmohan & Sons of Guwahati in favour of the petitioner No. 1. On preliminary enquiry the person concerned introduced himself as Dal Thang, the petitioner No. 1 herein. According to the affidavit, the petitioner No. 1 during enquiry made statements confirming that he was a Myanmarese National. He also produced his identity card issued by the Government of Myanmar. The other three persons were also apprehended by another vigilance party of the custom authority and they also produced the respective invoices and sale letters in respect of the other three motorcycles. According to the said documents two of the motorcycles were in the name of the petitioner No. 1 and the other two in the name of Sri Pankhan Singh. All the four persons made voluntary statements admitting their guilt. The affidavit further narrates the modus operandi carried out by the petitioners towards procurement of the motorcycles and as to how they were sought to be smuggled to Myanmar.
6. In view of the aforesaid facts and circumstances, confiscation proceedings were drawn against the petitioners under the aforementioned provisions of the Act. In the meantime a search was carried out in the godown premises of one Sri Pachina, in whose godown the petitioners used to keep the foreign goods brought from Myanmar for sale in India. Such search operation resulted in recovery of 5 bags of foreign origin 'Sarang' (polythene carry bags) valued at Rs. 7,500. Said Sri Pachina also made voluntary statement that Sri Dal Thang and his associates used to bring cattle from Myanmar for sale in India and that he is a business partner of the petitioners. As regard the proceedings initiated against the petitioners, it has been stated in the affidavit that after observing all legal formalities and the principles of natural justice, show cause notices were issued to the petitioners relating to proceedings under the Customs Act, 1962. Notices were issued to them in their permanent addresses in Myanmar under registered post in compliance of the provisions of Section 153 of the Customs Act, 1962. However, there was no response from the petitioners. There being no alternative the proceedings were disposed of on the basis of the available records and merits of the case vide Adjudication Order Nos. COM/CUS/ JT.COMMR/19/2002 dated 20.12.2002 and COM/CUS/JT/COMMR/20/ 2002 dated 20.12.2002. The orders in originals were tendered to the petitioners under registered post. The motorcycles were ordered for absolute confiscation under Section 113 of the Customs Act, 1962 and personal penalty were imposed on the petitioners under Section 114 of the Customs Act. Thus the respondents in their affidavit have justified the action taken against the petitioners in the aforementioned manner. The affidavit was filed on 7.8.2003.
7. During the course of hearing and being confronted with the question as to what the petitioners did to the aforesaid proceedings in spite of the fact that the notices were duly issued to them, the petitioners filed an affidavit-in-reply on 20.2.2004 denying the contentions raised in the affidavit in opposition. According to the averments made in the reply, the petitioners were not served with any notice as contemplated under Section 124 of the Customs Act. After the seizure of the motorcycle in question, the authorities of the respondents never made any communication with the petitioners and that they were in complete dark. Thus it is the case of the petitioners that the entire proceeding is liable to be set aside and quashed. In the reply, the justification has been sought to be made regarding their Indian nationality.
8. I have heard Mr. D.K. Das, learned Senior Counsel appearing for the petitioner assisted by learned advocate Mr. N. Upadhay. I have also heard Mr. C. Choudhury, learned Sr. Central Government Standing Counsel who also produced records relating to the proceedings initiated against the petitioners.
9. Mr. Das, learned Senior. Counsel appearing for the petitioner strenuously argued that as per the provisions of Section 110 of the Customs Act, 1962, it is the mandatory requirement to issue notice in respect of seizure made and in case of non-issuance of notice in respect thereof within 6 months of the seizure of the goods, the seized materials are required to be returned to the persons concerned from whose possession they were seized. Referring to Section 124 of the aforesaid Act which requires issuance of notice to the person concerned before passing any order confiscating any goods or imposing any penalty, Mr. Das submitted that since the petitioners were not issued with any notice relating to the confiscation proceeding and they were kept in dark, the proceeding so initiated if any are liable to be interfered with. He also referred to a decision of the Apex Court as reported in AIR 1972 SC 689 (The Assistant Collector of Customs v. Charan Das Malhotra) in which the Apex Court referring to the provisions of Section 124(a) of the Customs Act held that an opportunity of being heard must be given to the persons whose articles are seized as contraband. The provisions of Section 110(1) and (2) and Section 124 are quoted below.
'110. Seizure of goods, documents and things. - (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods :
Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods and order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
(2) Where any goods are seized under Sub-section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized :
Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the (Commissioner of Customs) for a period not exceeding six months.
124. Issue of show cause notice before confiscation of goods, etc. - No order confiscating any goods or imposing any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person -
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty ;
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein ; and
(c) is given a reasonable opportunity of being heard in the matter :
Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral.'
10. Mr. C. Choudhury, learned Senior. CGSC on the other hand submitted that the petitioners were given due notice with the issuance of registered letter to them relating to the confiscation proceedings and it does not lie on the mouth of the petitioners to say that they did not receive any notice. Referring to the postal receipts pertaining to the issuance of notice to the petitioners, Mr. Choudhury submitted that the petitioners were all along aware about the proceedings initiated against them and they have approached this court by invoking its writ jurisdiction on the basis of unfounded allegations.
11. With the aforesaid revelation of facts and upon hearing the learned counsel for the parties and on perusal of the records it is now to be decided as to whether the petitioners are entitled to the reliefs sought for in terms of the above quoted prayers made in the writ petition.
12. There is no denial that the motorcycles in question were seized from the possession of the petitioners. There is also no denial that confiscation proceedings were initiated against the petitioners. The petitioners themselves admit in their writ petition about the incident that took place on 8.4.2002. They have also admitted in the writ petition about the cases registered against them including the one registered under the Customs Act. In the Criminal Revision proceeding before this court as referred to above, this court by judgment and order dated 3.12.2002 while setting aside the order of the learned Magistrate by which the motorcycles were ordered to be released observed that the order passed would not in any manner disturbed the proceedings before the customs officials. In the said Criminal Revision proceedings the present petitioners who were arrayed as respondents were represented by their learned counsel. The photostat copy of the order dated 3.12.2002 passed in the said Criminal Revision Petition No. 1/2002 and as annexed to the writ petition reveals that the petitioners were shown to be hailing from Myanmar and they were arrayed as party respondents mentioning their respective addresses of Myanmar.
13. On being pointed out to the learned Senior counsel for the petitioners as to how the petitioners could appear in the aforesaid revision proceeding when on the face of it their addresses were shown to be of Myanmar as against their claim of being resident of Mizoram, India, no satisfactory reply could be given. This has an important bearing to the claim made by the petitioners that they were not served with any notice relating to the confiscation proceedings. According to the averments made in the affidavit, notices relating to the said proceeding were sent to the petitioners in their respective addresses in Myanmar. If they could appear in the aforesaid Criminal Revision proceeding, there is no earthly reason as to why they could not appear in the confiscation proceeding. Even in the writ petition, the father of the petitioner No. 2 has been shown to be resident of Tedim District which is shown to be in Myanmar in the address given in respect of the said petitioner who was the respondent No. 1 in the aforesaid Criminal Revision proceeding. Another aspect of the matter is that the petitioners while making a statement in the writ petition to the effect that they are all residents of Aizawl, Mizoram, have admitted that they are Burmese and belonged to Myanmar and they have migrated to Mizoram, India and have been residing in Aizawl, Mizoram from the last 7 to 12 years without, however, mentioning anything as to whether they have acquired Indian citizenship. This is precisely the reason as to why there is no statement in the writ petition to the effect that the petitioners are citizens of India which statement is normally made in a writ petition. They have only referred to the Constitution of India for protection of life and property. They have also not produced anything to prove their citizenship of India even in the writ proceeding. This naturally casts a serious doubt regarding the veracity of the statement that the petitioners belong to Mizoram, India and that they did not receive any notice relating to the confiscation proceeding.
11. The petitioners who were served with the copy of the affidavit filed on behalf of the respondents in August 2003 wherein material disclosures have been made relating to the confiscation proceeding and the services of notice on them, never reacted and objected to the same by filing any affidavit-in-reply and the learned counsel appearing for the petitioners made submissions without filing the affidavit-in-reply controverting the averments made and the stand of the respondents in their said affidavit. It was only after the matter was heard on 30.1.2004 and 16.2.2004, the petitioners filed their affidavit-in-reply through the petitioner No. 1 denying service of notice on them and also making the statements that they were not aware about the confiscation proceeding. Such statement on the face of it run counter to the statements made in the writ petition itself and also the revelation made in the aforesaid Criminal Revision proceeding. The petitioners themselves have stated in the writ petition that the proceedings were initiated against them. In the final order dated 3.2.2002 passed in the Criminal Revision Proceeding also, this court observed that setting aside of the order of the Magistrate, Aizawl would in no way disturb the proceedings before the custom officials. Thus the petitioners, in my considered opinion were aware about the said proceedings and with the passing of the final order in the confiscation proceeding, they have approached this court by initiating the writ proceeding shunning ignorance about the proceedings.
15. The records reveal that the notice pertaining to the proceedings were sent by registered post to the petitioners and normally a presumption is drawn of service of notice on expiry of the prescribed period. There is a strong presumption, more particularly in view of the conduct of the petitioners towards service of notice. Such a presumption is rebbutable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned was incorrect or the postal authorities never tendered the registered letter or that there was no occasion for him to refuse the same. The burden of rebut the presumption lies on the party, challenging the factum of service. In the instant case, the petitioners have failed to discharge that burden. Except making a statement that they were not served with the notices, the petitioners have not stated anything as to whether the addresses given against their names were correct or not. It would have been simple for them to make the averment that in view of the wrong address given against their names in the noticed, they did not receive the notices. However, the petitioners have not disowned their addresses in Myanmar. The respondents having taken steps for service of notice on the petitioners under the prescribed mode relating to the confiscation proceedings and in absence of any rebuttal on the part of the petitioners as required under the law, a mere statement that they were not aware of the proceeding would not come to their aid and the notices must be deemed to be served on them, more particularly in the view of the attending circumstances as discussed above.
16. It is in the above backdrop the decision cited by Mr. Das, learned counsel for the petitioner will have to be understood. In that case i.e. Charan Das Malhotra (supra) some foreign made watches were seized and the period of 6 months fixed under Section 110(2) for issuance of notice as required under clause (a) of section 124, had expired. In such a situation the person concerned became entitled to return of the watches as no show cause notice had till then been issued. On expiry of the period of 6 months, the period was further extended twice. Such extensions were exparte and without hearing the persons concerned. It was in that context the Apex Court dealing with the question as to whether power vested on the authority is purely administrative requiring no opportunity of being heard or judicial or quasi judicial, as in both the cases the right to the goods being restored would be involved, held that the authority was required to act judicially, firstly, because the proviso to section 110(2) of the aforesaid Act requires determination of facts and not on mere suspicion and secondly, because a civil right of a citizen to the restoration of the goods on expiry of the period, whether initial or extended is affected. The Apex Court held that the power under the proviso is quasi judicial or at any rate, one requiring a judicial approach. The Apex Court having regard to the fact situation involved in the case held that an opportunity of being heard ought to have been given to the person concerned before orders for extensions were made and consequently the order of the High Court for restoration of the watches was affirmed by the Apex Court.
17. Above is not the case in hand. All the required formalities relating to the procedure as envisaged under Sections 110 and 124 of the Customs Act, 1962 were duly followed and complied with. It is significant to note that as per the proviso to Section 124 the notice referred to in Clause (a) and representation referred to in clause (b) may at the request of the persons concerned be oral. As per their own averments made in the writ petition the petitioners were aware about the registration of cases under the Customs Act, 1962. They have even indicated the Custom Seizure Case Nos. In the proceeding pertaining to the Criminal Revision, the petitioners participated and the court while setting aside the order of the learned Magistrate clearly observed that the proceedings before the customs officials would not be disturbed and would be dealt with as per the provisions of law. Thus the petitioners were aware about the proceedings about the custom authority as per the provisions of the Customs Act quoted above. They have now shun ignorance about the said proceeding by making some vague and indefinite statements. They have made statement in the writ petition to the effect that they have no notice nor any knowledge about the fate of the proceeding which is belied from the aforesaid facts. They could indicate the proceedings under the Customs Act, could participate in the proceedings before the Magistrate and this court in the aforesaid Criminal Revision petition not disowning their addresses in Myanmar, but have feigned ignorance about the process relating to the confiscation proceeding without, however, rebutting the service of notice on them discharging the onus lies on them in the manner as required under the law.
18. The writ petition was filed on 23.4.2003 making the aforementioned prayers. Bu that time, as per the disclosures made in the affidavit, the confiscation proceeding had come to an end with the passing of the final Adjudication orders dated 20.12.2002. The statements made in paragraph 9 of the affidavit are quoted below :
'9. That with regard to the statements made in paragraph 8 of the writ petition, the deponent begs to state that the Customs authority, after observing all legal formalities and the principles of natural justice, had issued show cause notice to the petitioners in relation to the proceedings under the Customs Act, 1962. These were forwarded to their permanent address in Myanmar under registered post to facilitate them to give their defence before the adjudicating authority. This is in compliance of Section 153 of the Customs Act, 1962, which deals with service of notice/order/decision etc. Opportunity was also given for personal hearing. However, no response was received. Accordingly adjudicating authority disposed of the case on the basis of available records and merits of the case vide Adjudication Order Nos. COM/CUS/JT.COMMR/19/2002 dated 20.12.2002 and COM/CUS/JT.COMMR/20/2002 dated 20.12.2002. The orders in originals were tendered to the petitioners under registered post (receipt enclosed). Vide the abovementioned orders of adjudication, the said motorcycles were ordered for absolute confiscation under Section 113 of the Customs Act, 1962, and personal penalties were imposed or them under Section 114 of the Custom Act. In view of the above, the submission of the petitioners regarding un-authorised detention of the motorcycle is not justified.
The petitioners were at liberty to opt for appeal to the Appellate Commissioners/Tribunal against the order of adjudication within the stipulated time, which they have failed to do. This is only reflects the disdain that the petitioners have for the law of the land. At the same time, having failed to avail of the remedial measures provided for under the Customs Act, petitioners are not entitled to seek any further redressal on the mater in any court of law.'
Although the petitioners have filed an affidavit-in-reply to the said affidavit during the course of hearing, they have not stated anything relating to the assertion made in paragraph 9 of the affidavit. In the reply, the petitioners have not even dealt with the said paragraph. Law is well settled that when a point is ostensibly a point of law and is required to be substituted by facts, the party raising the point must plead such facts in the writ petition, if he is the writ petitioner and in the counter affidavit if he is the respondent. In the instant case as against the specific case and plead raised in the affidavit and as noticed above the petitioner not to speak of denying the same, have not even dealt with the same in their affidavit-in-reply. An evasive statement has been made in the said reply to the effect that no notice was served on them and that they were not aware of the nature of procedure or proceeding initiated against them without, however, denying the factum of issuance of notice to them in their respective addressed in Myanmar. In such a situation, I am constrained to hold that the plea of the petitioners is not sustainable.
19. The petitioners are aware of the confiscation proceeding and the final adjudication orders passed on 20.12.2002. Even assuming that they were not aware of the confiscation proceedings initiated against them before filing of the writ petition, but there is no denial and cannot be so that the petitioners atleast could come to know about the finality attained to the aforesaid proceedings with the filing of the affidavit-in-opposition on 7.8.2003. They did not disown the facts disclosed in the said affidavit till the matter was taken up for hearing. It was only during the course of hearing, the petitioners being confronted with the plea of the respondents as raised in the affidavit-in-opposition field their affidavit-in-reply making a vague and evasive statement as noticed above. They have also not chosen to do anything relating to the said confiscation proceeding by way of preferring appeals as provided for by the Customs Act, 1962 itself. The said Act is a self-contained code and Chapter XV of the Act, deals with the provisions relating to appeals. The petitioner has alternative remedy by way of preferring appeals against the final Adjudication orders. The Apex Court in the case of Union of India v. Lexus Exports as reported in (1997) 10 SCC 232 held that the proceedings of seizure and confiscation are proceedings in rem. Reacting to the interference made by the High Court, the Apex Court held that such interference at the particular stage was totally uncalled for. It has already been noticed that the final Adjudication Orders have been passed on 20.12.2002 and the petitioners have got remedy under the provisions of the Customs Act, 1962 itself. It will be a wise discretion not to exercise the power under Article 226 of the Constitution of India so as to interfere with the confiscation proceedings, which culminated to the aforesaid final Adjudication Orders. There is also no challenge to the same. The petitioners even after the disclosure made in the affidavit did not choose to bring any amendment to the writ petition by way of making challenge to the finaly Adjudication Orders. To grant the prayers made in the writ petition would amount to interference with the confiscation proceedings and the final Adjudication Orders. The writ petitioners have raised the plea that as per the above quoted provisions of the Customs Act, 1962, they are entitled to get back the seized motorcycles without, however, making any prayer for interference with the final Adjudication Orders dated 20.12.2002. I have gone through the said order dated 20.12.2002, which clearly reflects as to how the petitioners did not respond to the show cause notices and the opportunity of personal hearing. It was under these circumstances the said orders dated 20.12.2002 were passed.
20. In view of the aforesaid facts and circumstances I am of the considered opinion that the petitioners are not entitled to the prayers made in the writ petition and consequently the writ petition is liable to be dismissed which I accordingly do. There shall, however, be no order as to cost.
21. Before parting with the case records, I make it clear that dismissal of the writ petition and any of the observations made relating to services of notice on the petitioners in respect of the confiscation proceedings will not preclude the petitioners to approach the appellate authorities as provided under Chapter XV of the Customs Act, 1962 who upon such approach, if made by the petitioners shall deal with the appeals on their own merits without being guided by any of the observations made herein.