T.K. Basu, J.
1. In this Rule the petitioner challenges the detention of two consignments of turmeric which, according to him, were brought from Nepal for export outside India. As is well known, Nepal is a land locked country. The Indian ports and in particular the port of Calcutta is used for the transit of these goods for the purpose of shipment to foreign countries.
2. According to the petitioner on the 23rd April, 1978 he obtained an export licence issued by His Majesty's Government in Nepal for export of 20 metric tonnes of turmeric. On the the 7th July, 1978, 169 bags consisting of 70 Kg. each of turmeric crossed the Indo-Nepalese border at Joghani after complying with all the formalities and declaration. This consignment reached Kidderpore Dock on the 24th July, 1978.
3. A similar export turmeric licence was issued for export of 4 metric tonnes of turmeric on the 11th July, 1978, on the 13th July, 1978, 44 bags crossed the border and reached Kidderpore Dock on the 8th November, 1978.
4. These two consignments were kept in a bonded warehouse in terms of the Customs Act, 1962, but were not allowed to be cleared for export. This was in spite of the fact that all the formalities with regard to clearance under the Customs Act, 1962 had been complied with by the petitioner and/or his clearing agents.
5. Mr. Saraf, appearing on behalf of the petitioner, raised two principal contentions in support of his case. In the first place, he contended that the first consignment was seized on the 24th July, 1978 under Section 110 of the Customs Act, 1962. If no show cause notice was issued within six months from the date of seizure, it was incumbent on the respondent to release the goods.
6. In this connection Mr. Saraf relied on a decision of the Supreme Court in the case of Gian Chand and Ors. v. State of Punjab reported in 1962 S.C. 496. In that case it was held that the expression 'seizure' in the context in winch it is used under Section 178 of the Sea Customs Act, 1978 means 'take possession of contrary to the wishes of the owner of the party'.
7. Mr. Tarun Bose, appearing on behalf of the respondent drew my attention to large number of sections of the Customs Act, 1962 in support of the contention that the instant case cannot be one of the seizure. Admittedly, the goods are in the custody of the Calcutta Port Trust, under the relevant provisions of law, the Port Trust is a statutory bailee in respect of the goods. The goods are in their custody and control. As such, according to Mr. Bose, the question of seizure of these goods by the Customs authorities does not arise in the present case.
8. As a further limb of his argument on this point, Mr. Bose contended with reference to Sections 50, 51, 57, 62, 64, 69 and 71 of the Customs Act, 1962 which relate to the warehousing of goods that when the goods are in the warehouse they are in control of the 'proper officer' of the customs and no question of seizing these goods arise. As such his submission was that there was no seizure of the goods in the instant case.
9. Alternatively Mr. Bose submitted that even assuming that these goods have been seized they were admittedly released on the 24th January, 1979. Thereafter on the 9th February, 1979 the respondent stopped the goods from being put on the board the ship on the basis of certain further alleged information. Mr. Bose contended that under the provisions of the Customs Act, 1962 there was no prohibition against a second seizure of the same goods. Since the second seizure, if any, took place on the 9th February, 1979 the period of six months for issuing a show cause notice as contemplated by Section 110 of the Customs Act, 1962 has not yet expired. Therefore, the respondents were not under an obligation to release the goods.
10. In my view, this contention of Mr. Bose is sound and should be accepted. Having regard to the relevant provisions of the Customs Act, 1962,1 am of the opinion that the goods being under the provisions of law in the control of the 'proper officer' of the customs authorities, there is no question of their seizure. Even assuming that there has been a seizure, I hold that they have been released on the 9th February, 1979 and as such, after the second seizure which is permissible in law, the question of this release under Section 110 of the Act does not arise as yet.
11. The next contention of Mr. Saraf on behalf of the petitioner was that from all the available evidences it is clear that the goods were of Nepalese origin. In support of this contention my attention was drawn to the certificate of origin issued by Nepal Foreign Trade Association. Birat-nagar, which is Annexure 'B' to the petition where these goods are described of Nepalese origin in transit ex-Indian. It was further pointed out with reference to Indo-Nepal Treaty of Trade and Transit and Agreement of Cooperation that the real authority for checking the origin of the goods is the Land customs authority on the Indo-Nepalese border. As such authority had already passed these goods, having been satisfied that they were of Nepalese origin. The customs authorities at Calcutta had no jurisdiction to come to the conclusion that they were pot of Nepalese origin.
12. I may mention at this stage that it was not disputed by Mr, Bose, that if these goods were of Nepalese origin their transit through India was free under the relevant provisions of the Treaty and there was no offence committed under the Customs Act, 1962 authorising their detention or seizure.
13. It may be mentioned in this connection that on the 11th November, 1978 the customs authorities themselves appointed the National Agricultural Co-operative Marketing Federation of India (NAFED) for their opinion as to the origin of this Turmeric.
14. After receipt of their Report, the Customs authorities decided to release 1,9 consignments out of a larger block which had been obtained by them. Admittedly these 19 consignments included the two consignments which belonged to the petitioner. This, in my view, clearly shows that at one stage the authorities had made up their mind that these goods belonging to the petitioner were of Nepalese origin.
15. At the hearing I pointed by enquired of Mr. Tarun Bose as to whether there was any evidence in the possession of the Customs authorities to show that these goods were of Indian origin so that there were some causes on their part of changing their mind. I must say that Mr. Bose frankly confessed that there was none,
16. My attention was drawn in this connection to a decision of the Supreme Court in the case of Padam Kumar Agarwalla v. Additional Collector of Customs, Calcutta and Ors., reported in A.I.R. 1972 S.C. 542. This case went upto the Supreme Court from this Court where the judgment of the original Court was delivered by me. In that case, on the facts and the evidence adduced on affidavits I had come to the conclusion that the goods which were the subject matter of that application were of Nepalese origin. That decision on this point was affirmed by the Supreme Court.
17. Mr. Saraf contended that the facts were very similar to the facts of the present case.
18. I am inclined to accept this contention of Mr. Saraf on the evidence before which I must say are all one way and there is nothing to show that the goods are not of Nepalese origin. In the facts and circumstances, it must be held that there has been no contravention of the Customs Act, 1962 with regard to transit of these goods through India for the purpose of export to a foreign country. As I have already noted, it was admitted by Mr. Bose that if these goods are of Nepalese origin their transit through India is free and without any customs restriction.
19. In the result, this application succeeds and the Rule is made absolute to the extent indicated below.
20. There will be a Writ in the nature of Mandamus directing the respondent No. 4, that is the Board of Trustees for the Port of Calcutta, to release the two consignments belonging to the petitoner which are lying in their custudy subject to the payment of the dues of the respondent No. 4 by the petitioner. This order is without prejudice to the right of the petitioner to recover this amount from the customs authorities if the petitioner is so entitled in law. There will also be a Writ in the nature of Mandamus directing the customs authorities to forbear in any way from interfering with obtaining of the release of the goods and their export by the petitoper jn any manner whatsoever
21. There will be no order as to costs.
22. The operation of my order is stayed for a period of two weeks from that date. I make it quite clear that any further stay must be obtained from the Court of Appeal.