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Rajeshwar Prashad Vs. the Collector of Customs and Central Excise and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 139 of 1969
Judge
Reported in6(1970)DLT289
ActsCustoms Act, 1962 - Sections 110
AppellantRajeshwar Prashad
RespondentThe Collector of Customs and Central Excise and ors.
Advocates: N.C. Chatterjee,; Ganeshan,; S.K. Gupta,;
Excerpt:
customs - confiscation - section 110 of customs act, 1962 - under section 110 (2) unless show cause notice issued under section 124 (a) within six months of seizure of goods or within further extended time nto exceeding six months - seized goods have to be returned to person from whose possession they were seized - no order for extension of time in respect of any particular goods seized - no show cause notice issued within six months - customs authority nto entitled to retain those goods after expiry of six months. - - 2.in this case show cause notice was required to be issued by 4th january, 1969. from the facts placed before me, i am satisfied that extension of period for issue of show cause notice is necessary for conducting further enquiries in this case......act, 1961, is necessary in the following cases:- name and address of the party description of goods. 1. shri rajeshwar prashad 600 tolas of smuggled c. 2/22, model town, delhi, gold with foreign marking. 2. shri madan lal s/o shri kahan chand 21/41, rajinder nagar, new delhi. 'now, thereforee, by virtue of powers conferred on me under section 110 of the customs act, 1962, i extend the period for 3 months from 4-10-1968 for the issue of show cause memo in respect of aforesaid cases. sd/- r.prasadcollector.copy to:-1.shri rajeshwar prashad, c.2/11,model town, delhi. 2.shri madan lal s/o kahan chand, 21/41,rajinder nagar, new delhi.on january 2, 1969, a further order under section 110 of the customs act was made by the collector as under:- 'ipass this order under section 110 of the.....
Judgment:

H.R. Khanna, J.

(1) Rajeshwar Prashad by means of this petition under Articles 226 and 227 of the Constitution of India against the Collector of Customs and Central Excise, and the Union of India through Secretary, Ministry of Finance, has prayed for the issuance of a writ to quash the orders dated September 9, 1968 and January 2, 1969, and for a direction to the respondents to return car No. Dlj 2916 to the petitioner.

(2) The petitioner is one of the two partners in firm New India Watch Company, Chandni Chowk, Delhi. Ambassador car . No. Dlj 2916 was purchased by that firm in 1965. On April 5, 1968 the petitioner and one Madan Lal were apprehended by the Customs Preventive Staff, New Delhi, in car No. Dlj 2916 after they had been noticed by the said staff coming out of a house in Safdarjang Extension occupied by B. K. Jain, Flight Engineer of the Indian Airlines Corporation. The raid party found a brief case in the car and on opening the same recovered 60 bars of gold weighing 10 Tolas each and bearing foreign markings. Some currency notes and other papers were also recovered. As the petitioner and his companion could nto produce any evidence for the lawful import, purchase or acquisition of the said gold. the same was seized for action under the Customs Act. Car No. Dlj 2916 too was seized on the allegation that the same was being used for the carriage of smuggled goods by the petitioner and was liable to confiscation under section 115(2) of the Customs Act. On September 9, 1968 the Collector of Customs passed the following order:-

'WHEREASsufficient grounds have been. Said before me that an extension of time for the issue of Show Cause memo as required under Section 110(2) of the Customs Act, 1961, is necessary in the following cases:-

Name and address of the party Description of goods. 1. Shri Rajeshwar Prashad 600 Tolas of smuggled C. 2/22, Model Town, Delhi, gold with foreign marking. 2. Shri Madan Lal S/o Shri Kahan Chand 21/41, Rajinder Nagar, New Delhi.

'NOW, thereforee, by virtue of powers conferred on me under Section 110 of the Customs Act, 1962, I extend the period for 3 months from 4-10-1968 for the issue of Show Cause Memo in respect of aforesaid cases.

SD/-

R.Prasad

Collector.

Copy to:-

1.Shri Rajeshwar Prashad, C.2/11,Model Town, Delhi. 2.Shri Madan Lal S/o Kahan Chand, 21/41,Rajinder Nagar, New Delhi.

On January 2, 1969, a further order under section 110 of the Customs Act was made by the Collector as under:-

'Ipass this order under Section 110 of the Customs Act.

2.In this case Show Cause Notice was required to be issued by 4th January, 1969. From the facts placed before me, I am satisfied that extension of period for issue of Show Cause Notice is necessary for conducting further enquiries in this case.

1.therefore, grant extension of time for issue of Show Cause Notice up to the end of February, 1969.

SD/-

R.Prasad.

Collector.

'1. Shri Rajeshwar Prashad. C.2/22, Model Town, Delhi.

2. Shri Madan Lal S/o Shri Kahan Chand. 21/41, Rajinder Nagar, New Delhi.

3. Shri B. K. Jain, B-2/65, Safdarjung Extension, New Delhi.'

(3) On January 18, 1969 the petitioner served a notice through his counsel on the Collector of Customs and Central Excise .for the release of the car in question. As no action was taken by the respondents on the said notice, the petitioner filed the present petition on February 21, 1969 praying for the issuance of a writ for quashing the orders dated September 9, 1968 and January 2, 1969, and for a direction to the respondents to return the car to the petitioner.

(4) The petition has been resisted on behalf of the respondents, and the affidavit of Shri S. K. Kohli, Assistant Collector of Customs, has been filed in opposition to the petition. The affidavit of Shri R. Prasad, Collector of Customs, too has been filed on behalf of the respondents. The affidavit of Shri R. Prasad and its annexures show that on February 25, 1969 Shri Prasad made an order under Section 110 of the Customs Act extending further the time for the issue of Show Cause Notice up to the end of March, 1969. On March 13, 1969 a notice was issued by Shri R. Prasad, Collector, to Rajeshwar Prashad petitioner, Madan Lal, B. K. Jain and New India Watch Company to show cause within ten days of the receipt of the notice as to why the gold in question, the currency notes, car No. Dlj 2916 and the brief case should nto be confiscated under the Customs Act. Notice was also issued to show cause why penal action should nto be taken against them.

(5) Before dealing with the contentions advanced, it would be useful to reproduce the relevant provisions of the Customs Act. According to section 2(22) of the Act, goods include vessels, aircrafts and vehicles. Sub-section (1) of section 110 provides that if the proper officer has reason to believe that any goods are liable to confiscation under the Act, he may seize such goods. There follows a proviso to the above sub-section but we are nto concerned with that. Sub-section (2) is material and reads as under:-

'WHEREany 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 Collector of Customs for a period nto exceeding six months.'

SECTION 110 also contains sub-sections (3) and (4) but it is nto necessary to reproduce them. Section 115 deals with the confication of the conveyance. Sub-section (2) of that section reads. as under:-

'ANYconveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules.'

THEREfollows a proviso but we are nto concerned with it.. Section 124 provides:-

'NOorder confiscating 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.'

(6) We have heard Messrs. N. C. Chatterjee and P. P. Rao on behalf of the petitioner and Mr. Brij Bans Kishore on behalf of . the respondents, and are of the view that the petition should be accepted and a direction issued for the return of the car to the petitioner on the short ground that there is no order extending the period of six months for giving a Show Cause Notice for confiscation of the car under the proviso to sub-section (2) of section 110 of the Act. The order, which was made by the Collector on September 9, 1968, has been reproduced earlier and its perusal makes it plain that it relates only to the 600 tolas of smuggled gold with foreign markings. The fact that there was reference to the gold and nto to the car while giving the description of the goods, shows that the said order did nto relate to the car in question. The order, which was made on January 2, 1969, was for extension of the time which has already been granted by the order dated September 9, 1968 and was thus in continuation of that order. This is clear from the fact that the order dated January 2, 1969 recites that Show Cause Notice was required to be issued by January 4, 1969, which was the date up to which time had been extended by order dated September 9, 1968. As such, the order dated January 2, 1969 should be held to pertain to the same goods which were covered by the order dated September 9, 1968. The same remarks also apply to the order made on February 25, 1969, copy of which has been filed on behalf of the respondents as Annexure D-1. The material on the record thus makes it manifest that no notice under clause (a) of section 124 of the Customs Act was issued within six months of the seizure of the car in question and there was no extension of the above period under the proviso to sub-section (2) of section 110 of the Act in respect of the car. The petitioner shall consequently be entitled to the return of the car in accordance with sub-section (2) of section 110 of the Act. It is clear from the language of that sub-section that unless a Show Cause Notice is issued under section 124(a) of the Act within six months of the seizure of the goods, or within further time nto exceeding six months in case such an extension is granted by the Collector, the seized goods have to be returned to the person from whose possession they were seized. Where there is no order for extension of time in respect of any particular goods seized by the Customs staff and no Show Cause Notice is issued within six months, the Customs authorities are nto entitled to retain those goods after the expiry of six months from the seizure of goods. The order of extension is an essential requisite of the retention of the goods after the period of six months. In the absence of such an order and a Show Cause Notice, the retention of the goods after the expiry of six months period by the Customs authorities would be nto in accordance with law.

(7) In the above view of the matter, it is nto necessary to go into any other contention advanced on behalf of the petitioner.

(8) We may also note a submission made on behalf of the petitioner in reply to the arguments advanced on behalf of the respondents that this Court might quash the entire proceedings including those relating to the gold and restrain the respondents from proceeding further in the matter. In this respect, we find that the perusal of different paragraphs of the petition makes it clear that it relates to the car only and the redress sought by the petitioner is against the unauthorised retention of the car by the respondents. We consequently are nto prepared to grant any relief to the petitioner except that in respect of the car.

(9) As a result of the above, we accept the petition to the extent of issuing a direction to the respondents to return car No. Dlj 2.916 to the petitioner. Looking to all the facts, we leave the parties to bear their own costs.

(10) ATthe request of Mr. Brijbans Kishore the respondents are granted ten days to implement this order.


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