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Hemant Bahadur Lama Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 89 of 1981
Judge
Reported in1982CriLJ2227; 1983(1)Crimes932; 23(1983)DLT5; 1982(10)ELT872(Del)
ActsCustoms Act, 1962 - Sections 110
AppellantHemant Bahadur Lama
RespondentUnion of India and ors.
Advocates: Harjinder Singh and; C.L. Choudhry, Advs
Cases ReferredAll India General Transport Corporation v. Collector of Central Curloms and Ors.
Excerpt:
.....respondents to return confiscated vehicle - notice issued to petitioner in december 1981 after six months of seizure of car - proceedings consequent to confiscation initiated initiated on such notice not invalidated - notice in compliance of section 124 - only remedy available to petitioner to claim ownership is to participate in proceedings - petition dismissed. - - charandas malhotra 1973ecr1(sc) while holding that the proceedings under proviso to section 110(2) of the act are quasi judicial and if the order of extension is passed without hearing the party concerned it is vitiated, it was clearly stated that section 124 does not lay down any period within which the notice required by it has to be given. 110(2) for failure to initiate proceedings within the prescribed time. so the..........notice in respect of seized goods is given under clause (e) of section 124 of the act within six months of seizure of goods, the goods shall be returned to the person from whom the same have been seized. proviso empowers the collector to extend this period for a period not exceeding 6 months. section 124 lays down that no order confiscating any goods or imposing any penalty on any person shall be made 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 panalty. it is apparent that under section 110(2) if no notice is given as provided for under section 124 within six months the goods have to be returned to the person from whom they were seized. the petitioner cannot.....
Judgment:

Rajindar Sachar, J.

(1) By this writ petition mandamus is sought for a direction directing the Collector of Customs, respondents to return Mercedez Benz Car No. BA.A-2976 to the petitioner.

(2) On 3rd/4th August, 1979, 95 Kilograms of Hashish and Mercedez Car was seized by the Officers of the Directorate of Revenue Intelligence. The car was driven by one Nepali National Pabitra N. Rana who had stated that he had transported Hashish in the car. Since it was used for smuggling it was liable for confiscation; the car was seized. On 17-1-1980 notice was issued to Rana asking him to show cause as to why the Hashish and the Car be not confiscated. A criminal complaint was also filed on 6-2-1981 under Section 135 of the Customs Act 1962 (to be called the Act). Rana pleaded guilty on 19-2-1981 and was sentenced to 6 months imprisonment.

(3) The petitioner has come to this court in the present petition on the allegation that he had asked the Collector of Customs by his communication of April and May, 1981 to return the car to him, but had got no response. The petitioner claims that he is the owner of the car and Rana was his friend when he had permitted only to use the car. He claims the car to be returned to him.

(4) During the proceedings pending in this court a show cause notice dated 24-12-1981 was issued under Section 124 of the Customs Act 1962 to the petitioner asking him to show cause why the seized Hashish valued at Rs. l,50,000.00 should not be confiscated under Section 111 and 115 of the Act.

(5) Sole point urged by the counsel for the petitioner, Mr. Harjinder Singh is that as notice has been issued to the petitioner in December, 1981 which is six month after the seizure of the car which was in August, 1979 no proceedings for confiscation are competent against him and the same, thereforee, deserve to be quashed, and the car returned to the petitioner. We cannot agree.

(6) Section 110 of the Act empowers the seizure of the goods if the officer has reason to believe that they are liable to confiscation. Sub-section (2) of Section 110 provides that where no notice in respect of seized goods is given under clause (e) of Section 124 of the Act within Six months of seizure of goods, the goods shall be returned to the person from whom the same have been seized. Proviso empowers the Collector to extend this period for a period not exceeding 6 months. Section 124 lays down that no order confiscating any goods or imposing any penalty on any person shall be made 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 panalty. It is apparent that under Section 110(2) if no notice is given as provided for under Section 124 within six months the goods have to be returned to the person from whom they were seized. The petitioner cannot take any advantage of this provision because the goods were seized not from him but from somebody else i.e. Rana. Notice had already been served on Rana on 19-1-1980 i.e. within six months. The question, thereforee, of returning the seized goods to Rana or to the petitioner without first adjudicating whether the car is liable to be confiscated or not cannot arise. Mr. Harjinder Singh, however, urged that the period of six months provided under Section 110(2) is to be read also under Section 124 with the result that whenever notice is to be given under Section 124 of the Act whether to the owner or to any person, the same can only be given within six months of the seizure. The result, so says the learned counsel is that if no notice is given within six months of the seizure no proceedings for confiscation can take place. In this connection he seeks to rely upon. The. Appellate Collector of Customs and Central Excise, Madras and another v. T N. Khambati . This authority seems to lay down that seizure is necessarily a part of confiscation and there can be no confiscation without seizure and thereforee if no notice has been given within six months of seizure the proceedings for confiscation under Section 124 of the Act will be illegal. We must, with respect, express our dissent from this authority which is contrary to not only the Supreme Court decision but also to a large number of division benches of the other High Courts. In the Assistant Collector of Customs and Supdt. Preventive Service Customs, Calcutta and others v.CharanDas Malhotra : 1973ECR1(SC) while holding that the proceedings under proviso to Section 110(2) of the Act are quasi judicial and if the order of extension is passed without hearing the party concerned it is vitiated, it was clearly stated that Section 124 does not lay down any period within which the notice required by it has to be given. The period laid down under Section 110(2) affects only seizure of the goods and not the validity of the notice.' (Vide para 5 of the Judgment). In T.N. Khambati (supra) reliance is placed on 0043/1972 : AIR1972Guj126 A.M. Soni v. Union of India. It is however, significant that a later decision in J.K. Bardolia Mills v. M.L. Khungar, Deputy Collector of Central, Excise and Customs and others 1975 G L J 119 has however, dissented from the earlier decision and has held that the provisions relating to the seizure of the goods and those relating to the confiscation of the goods or imposition of penalty stand on different footing. Section 124 of the Act does not lay down any period within which the notice required by it has to be given. The period laid down in Section 110(2) of the Customs Act relates only to the seizure of the goods and not the validity of the notice.

(7) In the Collector of Customs and Central Excise Somaljiguda Hydrabad v. Amruthalakshmi and others : AIR1975Mad43 Kailasem, J. (as his Lordship then was) speaking for the division bench has also held that if notice is not given within the period contemplated in Section 110(2) the department cannot retain the goods but that does not take away the powers to proceed on with confiscation and penalty proceedings under Section 124. To similar effect is All India General Transport Corporation v. Collector of Central Curloms and Ors. 79 C W N 663 that a notice issued after six months does not invalidate the proceedings. On a plain reading of Section 124 it will be open to the competent officer to pass an order of confiscation of goods or imposing any penalty without seizing any goods or after returning the goods under the proviso to S. 110(2) for failure to initiate proceedings within the prescribed time. (See Mohanlal Devdhanbai Choksey and others v. M P. Mondkar and others, : 1988(37)ELT528(Bom) .

(8) The law is thus clear. The two sections i.e. Section 110 and 124 are independent. There is nothing in language of Sections 110 of the Act to indicate that a fetter of limitation is imposed upon power of the competent authority to initiate proceedings under Section 124 of the said Act. A notice issued after the period of six months does not invalidate the proceedings initiated on such notice even though it was issued on an extension of time illegally made ex parte. So the failure to give notice under Section 110 of the Act cannot in any way affect the power to proceed with proceedings for confiscation. The argument, thereforee, that as notice was not issued within six months from the date of seizure the petitioner is entitled to the return of the car is without any merits. As a matter of fact notice within 6 months was issued to the person from whom the car was seized i.e. Rana. Absence of notice within 6 month* to the petitioner is of no consequence. It may be that when the petitioner addressed letters to the respondents staling that no notice was served on him, there could have been earlier response. But this aspect may indicate the lack of care by the department but can in no way vitiate or affect the legality of the notice which was undoubtedly issued in December, 1981. This notice is in compliance with the provision of Section 124 and the petitioner if he wishes to establish his ownership of the car and establish his innocence has no option but to join the proceedings. The petitioner now through his counsel has stated before us that he will be filing reply to the notice within 15 days and that he will give his full cooperation in the enquiry. That is a correct approach. We have no doubt that as the matter is very old the respondent will act with expedition and try to conclude the matter within a period of three months.

(9) The petition is dismissed with no order as to costs.

(10) We had dismissed the writ petition and announced the order on 11-8-1982 without giving the reasons. We are now giving the reasons for the dismissal of the petition.


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