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Smt. Ajit Kaur Vs. Union of India (Uoi) and the Collector of Customs - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 476 of 1977
Judge
Reported in1979CENCUS276D
AppellantSmt. Ajit Kaur
RespondentUnion of India (Uoi) and the Collector of Customs
DispositionPetition dismissed
Cases Referred and State of Bihar v. RambalakSingh Balak and Ors.
Excerpt:
.....the petitioner being unable to point out any provision in the act casting statutory obligation on customs authorities permitting release of the seized car on superdari, held that a writ of mandamus could not be granted. - - no doubt, article 14 of the constitution condemns discrimination not only by substantive law but also by the law of procedure, but at the same time the principle of classification is equally applicable to the procedural law as well as substantive law and it is competent for the state to make different provisions as to procedure and tribunal to suit different types of cases. the act provides to consolidate and amend the law to customs and it is well established that it is a complete code in itself. this court, however, cannot grant a writ of mandamus unless the..........the car of the petitioner bearing registration no. dhe 775 was also taken in possession by the customs authorities on 12th may, 1977. the petitioner's case in the writ petition is that the said car was illegally and wrongfully seized by the customs officer which they had no authority to do so. the petitioner, thereforee, moved an application dated 25th june, 1977 to the collector of customs, central excise for release of the said car on superdari. by the impugned order dated 2nd july, 1977 the petitioner was informed that the question for release of the seized car would be considered only at the time of adjudication of the case.3. mr. harjinder singh, the learned counsel for the petitioner contends that the car could only be seized under a reasonable belief and in the present case.....
Judgment:

S.S. Chadha, J.

1. This Writ petition under Article 226 of the Constitution of India seeks the quashing of the order of the Collector of Customs and Central Excise, New Delhi refusing the release of Car No. DHE 775 (Fiat Car) on superdari to the petitioner during the pendency of the adjudication proceedings under the Customs Act, 1962.

2. The petitioner's brother-in-law, Shri Tirlok Singh was arrested by the Preventive Branch of the Customs, Central Excise, New Delhi and was taken to Customs House in connection with the seizure of gold from one Mr. Kapur on 12th May, 1977. The car of the petitioner bearing registration No. DHE 775 was also taken in possession by the customs authorities on 12th May, 1977. The petitioner's case in the writ petition is that the said Car was illegally and wrongfully seized by the Customs Officer which they had no authority to do so. The petitioner, thereforee, moved an application dated 25th June, 1977 to the Collector of Customs, Central Excise for release of the said Car on superdari. By the impugned order dated 2nd July, 1977 the petitioner was informed that the question for release of the seized Car would be considered only at the time of adjudication of the case.

3. Mr. Harjinder Singh, the learned Counsel for the petitioner contends that the Car could only be seized under a reasonable belief and in the present case the reasonable belief is lacking; thus the seizure of the Car is without authority of law and vocative of Article 21 of the Constitution of India. There is no merit in this submission. Section 110 of the Customs Act, 1962 (hereinafter referred to as the Act) 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. The customs authorities thus have unfettered power of seizure of the goods when they have reasons to believe that any goods are liable to confiscation under the Act. Section 2(22) defines the goods and includes vehicles. Section 115 of the Act provides that the conveyances mentioned in the Section are liable to confiscation. Any conveyance used as a means of transport in the smuggling of any goods is liable to confiscation. The affidavit of Superintendent of Customs is to the effect that the business of the firm M/s. Grover Trading Co., which is a partnership firm of the petitioner and one Shri Kartar Singh, father-in-law of the petitioner, is being looked after and run by Shri Tirlok Singh S/o Shri Kartar Singh, brother-in-law of the petitioner, that Car No. DHE 775 was being used by Shri Tirlok Singh for transportation of the smuggled goods and he had admitted this fact during the investigation of the case, that the investigations also revealed that Shri Surjit Singh, husband of the petitioner had been delivering the smuggled gold in this very Car on previous occasions also and that Shri Tirlok Singh had transported the seized gold in the Car in question, that Shri Tirlok Singh was apprehended on 12th May, 1977 in Car No. DHE 775 in connection with the seizure of two kilograms of foreign marked smuggled gold from one Shri Khem Chand, that on interrogation Shri Khem Chand named one Shri Ganga Ram Kapur who delivered the said smuggled gold to him and that Shri Ganga Ram on interrogation stated that the smuggled gold belonged to the said Shri Trilok Singh who delivered the same to him in Car No. DHE 775. This was the material before the customs authorities. The right of the customs authorities to be the judge of their own information as giving them a fair basis for reasonable belief has to be conceded. The definite information has been disclosed in the affidavit. The scrutiny by the Court does not extend to the determination of adequacy of the information for justification of the reasons to believe. The definite information being in existence and the proper officer having reason to believe that the vehicle of the petitioner was liable to confiscation under the Act, he is empowered to seize it under Section 110 of the Act.

4.The next submission of the counsel is that in many cases, the Collector of Customs has returned the vehicles but in the instant case he has not done so. There is a denial by the Superintendent of Customs. In the absence of the particulars about the cases in which the vehicles have been returned, no decision can be based on the mere assertion that in many cases the Collector has returned the vehicles.

5.The next submission of the counsel vehemently contended is that theimpugned orders are non-speaking and have been passed without affording areasonable opportunity of being heard. Reliance is placed by the counsel on Amba Lalv. Union of India and Ors. A.I.R. 1961 S.C. 264 and A.K. Kraipak and Ors. v. Union of India and Ors. : [1970]1SCR457 to urge that the principles of natural justice are deemed to be incorporated in the provisions of the Act. inspire of my repeated requests the learned Counsel has not been able to pin-point any statutory provision under the Act under which the application of the petitioner for the release of the Car on superdari could be considered to have been filed. In the application before the Collector of Customs, Central Excise, New Delhi, no such provision of law has been mentioned. The prayer made is that pending enquiry or adjudication, the Car may be ordered to be released on superdari of the petitioner on such terms as it may think fit. The Assistant Collector (Customs) in the impugned letter dated 2nd July, 1977 does not determine any right of the petitioner but merely informs the petitioner that the question for release of the seized Car will be considered only at the time of adjudication of the case. The right of hearing and principles of natural justice could be attracted only when the customs authorities are passing the orders of adjudication or confiscation. Section 125 of the Act will come into play at the time of adjudication order and not earlier. It provides that whenever confiscation of any goods is authorised by the Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. On the admitted facts of this case, the officer adjudging is directed by law to give to the owner of the Car an option to pay in lieu of confiscation such fine as the officer thinks fit. It is only when the option is not exercised by the owner of the Car that the confiscation is to be made effective. But these orders can only be passed at the time of adjudication of the case and not earlier. This is what has been communicated to the petitioner in the letter dated 2nd July, 1977. For this reason, it was not necessary to pass any reasoned order or to afford an opportunity of being heard to the petitioner before inviting the attention of the petitioner to the stage of release of the seizedCar.

6. The petitioner has alleged in the writ petition that there is no provision for interim relief under the Act as is provided under Chapter 35 of the Code of Criminal Procedure for the release of the Car seized. Attention is invited to Sections 115 and 125 of the Act for the confiscation of goods by the Collector of Customs, but there is also an alternative remedy provided i.e. instead of goods being confiscated the existing market price can be recovered. At the Bar, the counsel contends that the interim relief can be granted in aid of, and is an auxiliary to the main relief which may be available to the parties on the final determination of the rights in the proceedings, that is, the release of the Car on superdari on the existing market price. No doubt, Article 14 of the Constitution condemns discrimination not only by substantive law but also by the law of procedure, but at the same time the principle of classification is equally applicable to the procedural law as well as substantive law and it is competent for the State to make different provisions as to procedure and tribunal to suit different types of cases. The Act provides to consolidate and amend the law to customs and it is well established that it is a complete Code in itself. The establishment of special courts or laying down of the special procedures for dealing with special cases is not per se infringement of Article 14 of the Constitution. The procedure for investigation of cases byC.B.I. and by officers under the Act may be different but that is not per se infringement of Article 14. A special procedure for investigation of breaches of foreign exchange regulations which is different from the procedure under the Code of Criminal Procedure has been held by the Supreme Court as not vocative of Article 14; the subject matter of the legislation has peculiarities which make it fall in a class by itself. Such illustrations can be multiplied. The scheme of the Act is not to pass orders relating to confiscation except at the time of adjudication. The liability to confiscation is to be determined as the stage of the adjudication. Then the option to be given to the owner of the goods to pay in lieu of confiscation such fine as the said officer thinks fit, will be at the stage of the adjudication. The proviso to Section 125 prescribes that such fine shall not exceed the market price of the goods confiscated. The market price of the goods confiscated is, thereforee, to be determined at the time of adjudication. For all these considerations, there seems to be wisdom in not providing under the statute release of the goods liable to confiscation before the date of adjudication. The cases under the Customs Act and its violation fall in a class by itself. The Act is, thereforee, not vocative of Article 14 of the Constitution.

7. At the Bar the counsel wanted to rely on the provisions of Section 141 ofthe Act to urge that power exists with the customs authorities to pass interimorders on all conveyances and goods in customs area for the purpose of enforcingthe provisions of the Act, are subject to the control of officers of customs.Reliance is placed by the counsel on Smt. Basava Kom Dyamogouda Patil v. State of Mysore and Anr. : 1977CriLJ1141 , and State of Bihar v. RambalakSingh Balak and Ors. : 1966CriLJ1076 . Basava's case (supra) deals with the powers under Section 517 of the Code of Criminal Procedure, 1898. The object of the Code is expressed that any property which is in the control of the Court either directly or indirectly, should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. Under the Code of Criminal Procedure when the property is produced before the Court, it becomes custodia legist for the purpose of giving effective control over all conveyances and goods, a specific provision has been made in the Act in Section 141 i.e. that for the purpose of enforcing the provisions of the Act it will be subject to the control of the officers of Customs. As the Act was being made a complete Code, the doctrine of custodia legis was specifically incorporated in the Act. Ram Balak's case (supra) was dealing with habeas corpus petition under Article 226 of the Constitution of India where orders of detention passed under Rule 30 of the defense of India Rules were challenged. It was observed that a High Court has jurisdiction to grant bail, but the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the object which is intended to be served by orders of detention properly and validly passed under the said Rules. It is in these circumstances that observations were made that if jurisdiction is conferred by a statute upon a Court, the conferment of jurisdiction implies the conferment of the power of doing all such acts or employing such omissions as the essentially necessary to its execution. The counsel for the petitioner has not brought to my notice any statutory provision which gives power of the release before the order of adjudication. A writ of mandamus is issued where there is specific legal right to the performance of a legal duty. The petitioner must show that there resides in him a legal right to the performance of the legal duty by the authority against whom the mandamus is sought. The petitioner has to show that the, statute imposes a legal duty on the customs authorities. The petitioner has been unable to point out any provision in the Act casting statutory obligation on the customs authorities permitting them to release to the petitioner the Car on superdari. The case of the petitioner may be harsh case as the Car was seized on 12th May 1977 and the adjudication proceedings are not being completed. The Car is liable to deterioration due to the vagaries of the weather and there can be no objection to the customs authorities to the re lease of the Car to the petitioner on agreement. This Court, however, cannot grant a writ of mandamus unless the statute imposes' a legal duty and the authorities have failed to perform.

8. For the above reasons, civil writ petition No. 476 of 1977 fails and is dismissed with no order as tocosts.


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