Skip to content


Jensen Enterprises Vs. Collector of Customs, CochIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberW.P. No. 10138 of 1984
Judge
Reported in1986(7)ECC17; 1985(22)ELT21(Mad)
ActsCustoms Act, 1962 - Sections 110, 110(1), 113, 113(1), 114(1) and 124
AppellantJensen Enterprises
RespondentCollector of Customs, CochIn and anr.
Appellant AdvocateVijay Narayan, Adv.
Respondent AdvocateP. Narasimhan, Senior Central Govt. Standing Counsel
Excerpt:
.....item--petitioner asking for copy of analytical report and also asking for analysis by government research institute--ordering of confiscation by authorities without responding to petitioner's letters--writ petition--court ordering analysis by government research institute--research institute finding no banned item in sample--report indicating method adopted--report obtained by department not detailing methods and giving contradictory findings--report by government research institute to be preferred--departmental authorities could not have formed reasonable belief that consignment contained banned item--confiscation without jurisdiction and illegal--mere purchase of banned item for business does not mean it was exported--customs act (62 of 1962), sections 110, (1), 113(d), (i), 114(i),..........petitioner from the seized goods and submit the same for examination and analysis to the central research institute for siddha, ministry of health and family welfare, government of india, arumbakkam, madras-106,. by an order dated 16th november, 1984, this court directed the respondents to draw samples in the presence of the petitioner from the consignment within two weeks from that day and have the same sent to the central research institute for siddha, arumbakkam, madras-106, for examination and submission of a report. pursuant to this, the central research institute for siddha, arumbakkam, madras-106, had submitted its report dated 2nd january, 1985. 4. in the counter affidavit filed on behalf of the respondent they justified the initiation of proceedings against the petitioner as.....
Judgment:
ORDER

1. The petitioner is a registered partnership firm dealing in Indian Medicinal plants and herbs and in the course of its business, it buys and sells within the country and also exports medicinal plants to foreign countries. On 10-6-1964, the petitioner despatched 52 bales of what was described to be Vinca Rosea by road from Madras to Cochin for export from Cochin Port. This consignment was accompanied by a Photosanitary certificate issued by the Directorate of Plant Protection, Quarantine Storage, Department of Agricultural and Co-operation, Government of India, and a certificate of the representative of the buyer showing that they had drawn samples from the consignment and had inspected and sealed the consignment. After filing the necessary shipping bills, the consignment was presented for export and it was examined and inspected by the Customs authorities on 23rd June, 1984 and a 'Let Export Order'was passed by the Customs authorities. However, two days later, the 'Let Export Order' and the shipping bills were seized and the petitioner was informed that the goods cannot be exported. On 12th July, 1984, the second respondent issued a show cause notice to the petitioner purporting to be under Section 174 of the Customs Act, 1962 (hereinafter referred to as the 'Act') and this was served on the petitioner on 14th July, 1984. It was stated therein that as per technical opinion obtained on the basis of an examination of the samples, the consignment was found to consist of Vinoa Rosea and Rauwolfia serpentina root (a balanced item) and the petitioner was called upon to show cause why the consignment should not be confiscated under Section 113(d) of the Act for contravention of Section 3 of the Import and Export Control Act, 1947, read with clause 3(1) of the Export Control Order. A notice to show cause as to why a personal penalty should not be imposed under S. 114(1) of the Act was also given to the petitioner. Thereafter, on 27th July, 1984, before the petitioner could send a reply within the time mentioned in the notice, an addendum was served upon the petitioner which referred to a preliminary report received from the Professor of Pharmacognosy, Ayurveda Research Centre, Trivandrum, to the effect that a major quantity of the sample from the consignment consisted of Rauwolfia serpentina. In view of this, the second respondent stated that the petitioner contravened clause 3(4) of the Export Control Order, 1977, rendering the goods liable for confiscation under Section 113(1) and 113(d) of the Act read with Section 3 of the Import and Export Control Act, 1947. In the reply submitted by the petitioner on 10th August, 1984, it pointed out that the opinion furnished to it was not complete and after receipt of the same, it would submit all the relevant documents. On 27th August, 1984, the petitioner submitted a further representation and asked for the copy of the opinion obtained from the authorities cited in the show cause notice as well as the analytical report issued by the Professor of Pharmacognosy, Ayurveda Research Centre, Trivandrum. The petitioner also submitted that samples should be drawn and sent to one of the three recognised institutes maintained by the Government of India for the purpose of testing the consignment and submitting a report. The petitioner did not receive any reply to these representations made. Meanwhile, by an order served on the petitioner on 2nd August, 1984, the Assistant Collector of Customs, Export Documentation Centre (Customs), Cochin-9, had detained the goods under Section 110 of the Act, and directed the petitioner not to remove or deal with the goods. Later, on 10th August, 1984, an order was served by the second respondent on the petitioner's clearing agent at Cochin and by his order, the order of detention was superseded and the consignment was seized under Section 110(1) of the Act. Thereupon, the petitioner moved the Kerala High Court in O.P. No. 7548 of 1984 to quash the order of seizure dated 10th August, 1984, and that petition is stated to be pending. Claiming that the petitioner was advised to resort to legal proceedings of a more comprehensive nature including a challenge to the proceedings taken under Section 124 of the Act, besides the order seizure, the petitioner has come up before this court for the issue to writ of certiorified Mandamus calling for the records relating to the show cause notice issued by the second respondent, as amended by the notice dated 27th July, 1984, and the adjudication proceedings pursuant thereto and quash the same and directing the respondents to release the goods seized under the order of the second respondent, dated 10th August, 1984.

2. In the affidavit filed in support of the writ petition, though several grounds had been raised by the petitioner, in the course of the arguments before this Court, the petitioner confined its attack on the impugned orders to only one ground, namely, that the alleged violation committed by the petitioner in attempting to export goods contrary to the prohibition against export was without any basis or foundation, as the question whether the goods were prohibited or not is a matter on which the respondents should have entertained a reasonable belief that it was so at the time of seizure and such belief should have been present at the time of the issue of the show cause notice and further that during the course of adjudication, the proper officer must reach a conclusion that the goods were prohibited goods. The petitioner also maintained that the consignment did not contain any banned item and in order to ascertain this, requested the Court to draw samples, from the consignment and send the same to any one of the three recognised institutes mentioned in the source of the affidavit. The petitioner took the stand that the seized goods did not contain any banned item which cannot be exported, and therefore, the proceedings taken by the respondents on the footing that the consignment included banned items should be quashed as having been initiated without jurisdiction.

3. In W.M.P. 16314 of 1984 the petitioner prayed for a direction from this court to the respondents to draw samples in the presence of the petitioner from the seized goods and submit the same for examination and analysis to the Central Research Institute for Siddha, Ministry of Health and Family Welfare, Government of India, Arumbakkam, Madras-106,. By an order dated 16th November, 1984, this Court directed the respondents to draw samples in the presence of the petitioner from the consignment within two weeks from that day and have the same sent to the Central Research Institute for Siddha, Arumbakkam, Madras-106, for examination and submission of a report. Pursuant to this, the Central Research Institute for Siddha, Arumbakkam, Madras-106, had submitted its report dated 2nd January, 1985.

4. In the counter affidavit filed on behalf of the respondent they justified the initiation of proceedings against the petitioner as well as the seizure on the ground that three existed a reasonable belief that the consignment contained banned drug and that the report received from the Ayurveda Research Centre, Trivandrum, and the other documents seized from the petitioner supported this. Adverting to the report of the Central Research Institute for Siddha, Arumbakkam, Madras-106, the respondents stated that it was subject to scrutiny and ran counter to the incriminating documents seized from the petitioner and that the samples from the seized consignment have to be submitted to examination and report by a third institution.

5. Thus, the principal question is, whether the respondents could have entertained a reasonable belief that the consignment contained banned items for purposes of export, and, therefore, were justified in having taken action and initiated proceedings in the manner done. While the petitioner has been right through asserting that no banned items formed part of the consignment intended for export, the respondents have been maintaining that the consignment contained Rauwolfia serpentina, a banned item, along with Vinca Rosea, a permitted item. In order to determine what the consignment continued, the samples from the consignment were sent for purposes of examination, analysis and identification to the Ayurveda Research Institute, Trivandrum-12. On 23rd July, 1984, the Professor of Pharmacognosy had addressed a letter to the second respondent herein after a physical examination of the sample. In that letter, the Professor of Pharmacognosy has purported to identify from the anatomical features roots of Vinca Rosea and Rauwolfia serpentina and has stated that thin stems with prominent nodes are that of Vinca Rosea and the slightly thicker ones with inconspicuous nodes are that of Rauwolfia serpentina. The letter winds up by saying that an alcoholic extract of the contents of the two plants which are very different can reveal more details, but that process would take about 7 to 9 days and that only thereafter a detailed report can be forwarded. Subsequently, on 19th September, 1984, the Professor of Pharmacognosy, Ayurveda Research Institute, Trivandrum had addressed another letter to the second respondent. Therein, it has been stated that the samples received from the Customs had been studied in detail and compared with the original samples and that the specimen is identifiable as a mixture of root and stem of Vinca Rosea and Rauwolfia canescens and that the majority of the roots were Rauwolfia canescens. It was also further reported that a fair quantity of stem of Vinca Rosea is also present, though the sample packets were stated to contain roots of Vinca Rosea only. As against this, the report submitted by the Central Research Institute for Siddha, established by the Central Council for Research in Ayurveda and Siddha, New Delhi, under the Ministry of Health and Family Welfare, Government of India, stated that the specimen drawn from the consignment was studied for its macroscopic and microscopic features and that revealed that the major portion consisted of Vinca Rosea stems and roots intact and broken pieces of roots and stems. The remaining portion was found to contain stems identified as Rauwolfia canescens. Quantitatively it was found that the major portion of the plant material was Vinca Rosea root and stem and stems of Rauwolfia canescens and no roots were found. Extensive chromatographic studies were also made to confirm the identification of the plants as set out earlier. The thin layer chromatographic pattern report was also enclosed to show that the identity of the plant material had been confirmed by comparison authentic samples.

6. Though in the first letter dated 23rd July, 1984, sent by the Professor of Pharmacognosy to the second respondent herein, an opinion had been expressed that the major quantity of the samples contained Rauwolfia serpentina, the subsequent letter dated 19th September, 1984, sent by the very same person clearly excluded the presence of Rauwolfia serpentina in the consignment and it stated that the specimen examined a mixture of root and stem of Vinca Rosea and Rauwolfia canescens and the majority of roots was that of Rauwolfia canescens. From the letter dated 19th September, 1984, it is clearly established that the sample did not contain Rauwolfia serpentina stated by the Professor of Pharmacognosy in the letter dated 23rd July, 1984. It is, therefore, seen from the letter dated 23rd July 1984 and 29th September, 1984, that in the second letter the Professor of Pharmacognosy has changed her opinion regarding the presence of Rauwolfia serpentina, which she had asserted in her letter dated 23rd July, 1984, and stated in her letter dated 19th September, 1984, that roots of Rauwolfia canescens were present. In both the letters dated 23rd July, 1984 and 19th September, 1984, it has not been stated that on what scientific investigation and basis, the identification had been made. This assumes importance because in the report dated 2nd January, 1985 submitted by the Central Research Institute for Siddha, Arumbakkam, Madras-106, the scientific investigation to which the samples were subjected to and finally identified have been clearly set out and the identification had been confirmed on a consideration of the Thin Layer Chromotogrqaphic pattern. The report says that stems and not roots of Rauwolfia canescens were found in the material sent for identification. In my view, the report dated 2nd January, 1985, sent by the Central Research Institute for Siddha, Arumbakkam, Madras-106, sets out the scientific data on the basis of which the identification had been done and arrived at and, therefore, that report deserves to be accepted in preference to the conclusions communicated in the letters dated 23rd July, 1984 and 19th September, 1984, by the Professor of Pharmacognosy, Ayurveda Research Institute, Trivandrum-12. As noticed earlier, neither the methods adopted nor the investigations carried out for the purpose of identification have been mentioned in those letters and, therefore, it is difficult to accept the opinion expressed by Professor of Pharmacognosy, Ayuryeda Research Institute, Trivandrum-12, as a conclusive and binding one based on a scientific analysis and identification. Besides, from the letter dated 23rd July, 1984, it is seen that the Professor of Pharmacognosy presumably did a physical examination of the sample from the consignment and had opined that the major quantity found in the sample is that of Rauwolfia serpentina, which was found to be not quite correct even according to her own subsequent communication dated 19th September, 1984. Further, the communication dated 19th September, 1984, referred to the presence of roots of Rauwolfia canescens, while the report received from the Central Research Institute for Siddha is positive that no root of Rauwolfia canescens is found. The learned counsel for the respondents strenuously contended that the samples should again be examined and identified by another Institute. I fail to see why it should be so done. Merely because the report submitted by the Central Research Institute for Siddha is not favourable to the respondents, they cannot ask for another examination. The Central Research Institute for Siddha has been established by the Central Council for Research in Ayurveda and Siddha, New Delhi under the Ministry of Health and Family Welfare, Government of India. The identification of the plants in question had been done by that institute after subjecting the specimen to macroscopic and chromatographic analysis and it is impossible to brush aside or ignore the report submitted by it. It is, therefore, unnecessary to send the sample for a fresh examination by another institute, as submitted by the learned counsel for the respondents. For the reasons already stated, I am inclined to accept the report of the Central Research Institute for Siddha regarding the presence of Rauwolfia canescens stems only in the consignment in question. On a consideration of the reports referred to above, it is clear that the consignment in question consisted of Vinca Rosea root stems, which is a permitted item, and stems of Rauwolfia canescens.

7. The learned counsel for the respondents referred to page 77, Schedule I of the Import and Export Policy. April, 1984 to March, 1985, Volume II, to contend that Rauwolfia canescens would be a banned item. It is difficult to accept this contention, for, it is seen that the export of roots and seeds of Rauwolfia canescens is not normally allowed. Stems of Rauwolfia canescens is not included under items not normally allowed to be exported. Even as regards the roots and seeds of Rauwolfia canescens, a note is added to the effect that the regulation may be relaxed and export premitted on obtaining certificates from certain officers to the effect that the material is plantation of nursery origin. When stems of Rauwolfia Canescens do not find a place among items not normally allowed to be exported, there is no question of relaxing the regulations regarding the export of that item, namely, the stems of Rauwolfia canescens. Accepting the report dated 2nd January, 1985, submitted by the Central Research Institute for Siddha Arumbakkam, Madras-106, which has clearly set out the basis for the identification of the plants in the consignment, in preference to that of the bald reports submitted by the Professor of Pharmacognosy, Ayurveda Research Institute, Trivandrum-12, it has to be held that the consignment in question contained Vinca Rosea root and stem and stems Rauwolfia canescens. Since both these items are not banned items, the seizure of the consignment on the ground that it contained banned or prohibited items is not in order.

8. The conflicting opinions regarding the contents of the consignment submitted by the professor of pharmacognosy, Ayurveda Research Institute, Trivandrum and the Central Research Institute for Siddha, Arumbakkam Madras-106, have already been referred to. While persons fully conversant with the characteristics of medicinal plants and their other properties and experienced in the identification of plants had expressed conflicting opinions regarding the contents of the consignment seized, it is rather difficult to accept that the departmental officers, by merely looking at the sample drawn from the consignments, were in a position to identify the plants as banned items. That would mean that at the time of seizure the respondents could not have entertained a reasonable belief that the items are banned items merely by looking at the sample. There is also nothing to establish that such a reasonable belief could have been entertained by the officers of the department at the time of the issue of the show cause notice and also during the course of the adjudication that the goods were prohibited items. On the contrary, on the facts and circumstances of this case, it is obvious that no reasonable belief at all could have been entertained by the officers of the department that the consignment contained banned items. Under those circumstances, the basic requirements for the initiation of proceedings against the petitioner were totally absent and, therefore, the action taken against the petitioner by the respondents was totally without any jurisdiction or justification. The learned counsel for the respondents submitted that certain documents seized from the petitioner established that the petitioner had purchased Rauwolfia serpentina, which is a banned item, for purposes of export. Even assuming that the petitioner had purchased Rauwolfia serpentina roots for purposes of his business, so long as the consignment intended for export did not contain Rauwolfia serpentina, the respondents cannot claim on the strength of the documents stated to have been seized from the petitioner that he was engaged in exporting a banned item, from the contents of the seized goods, which admittedly did not contain Rauwolfia serpentina. A writ of certiorified Mandamus will, therefore, issue quashing the notices issued by the second respondent on 12th July, 1984 as amended by the notice dated 27th July, 1984, and the adjudication proceedings pursuant thereto and directing the respondents to release the goods seized from the petitioner under the order of the second respondent dated 10th August, 1984. The rule nisi is made absolute and the writ petition will stand allowed. There will be, however, no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //