JUDGMENT
Kapadia, J.
1. This is an appeal filed by the original petitioners seeking to challenge the order rejecting Notice of Motion No. 796 of 1988 passed by the learned Single Judge on 21st April, 1988.
2. The facts giving rise to this appeal briefly are as follows :
(a) The petitioners/appellants herein pursuant to the shipping bills had entered for export of 87 packages/cases, which came to be detained by the Customs Authorities as the Customs Authorities suspected the said packages/cases to contain certain antiquities.
(b) The said detention of the goods came to be challenged by the petitioners/appellants herein by filing writ petition in this Court earlier being Writ Petition No. 3378 of 1986. By the said writ petition the petitioners sought to revoke an order of detention and permit the export of items covered by three shipping bills consisting of 87 cases. The said writ petition No. 3378 of 1986 filed by the petitioners came to be allowed by this Court and the learned Single Judge of this Court granted permission to export the said items. Against the said judgment dated 5th February, 1987 passed by the learned Single Judge an appeal came to be preferred before the Division Bench of this Court being Appeal No. 195 of 1987. By the judgment and order dated 16th February, 1987 the appeal filed by the Union of India also came to be dismissed.
(c) Against the said dismissal of the appeal, the Government preferred Special Leave Petition being S.L.P. No. 1056 of 1987 in the Supreme Court of India. By an order dated 12th March, 1987 the Supreme Court was pleased to allow the Government not to release 11 out of 87 cases which were certified to contain antiquities under the provisions of Antiquities and Art Treasures Act, 1972. The Supreme Court therefore permitted to released 76 cases out of 87 cases.
(d) Accordingly the Customs Department by its letter dated 23rd March, 1987 released 76 cases which did not contained antiquities. According to the appellants, after receiving the 76 cases, the petitioners/appellants herein, however, shipped only 71 cases to the foreign buyers and did not ship the remaining five cases which the Supreme Court had directed to be released by the Customs Department. The said five cases, however, continued to lie in the docks.
(e) It may be mentioned that pursuant to the liberty granted by the Supreme Court, a show cause notice came to be issued by the Customs Department on 22nd April, 1987 under section 124 of the Customs Act, 1962. The said show cause notice is sought to be challenged by filing the present writ petition No. 2947 of 1987, which is pending for hearing and final disposal in this Court.
(f) On 16th March, 1988 the present Notice of Motion No. 796 of 1988 was taken out by the appellants/petitioners in which it was prayed that pending the hearing and final disposal of the writ petition, the respondents herein be ordered and directed to take charge of the said five cases lying in the docks since June, 1986 and to remove the same and store them in the bonded warehouse for safe custody. In the said motion, the Customs Department had filled affidavit-in-reply in which they have rightly pointed out that the petitioners/appellants had exported only 71 cases, pursuant to the order of the Supreme Court of India by which 76 cases were ordered to be released. The contention of the Customs Department in the said affidavit is also that the said 76 cases have been released by the Customs Department in compliance with the order of the Supreme Court and the title of the goods now belong to the appellants /petitioners and therefore the Customs Department had nothing to do with those cases/packages. It was entirely for the petitioners/appellants to deal with the said goods of five cases/packages in the manner they deemed fit.
(g) In view of the above circumstances, the learned Single Judge was right in rejecting the above notice of motion. Against the impugned order dated 21st April, 1988, the present appeal has been filed seeking to challenge the order rejecting the above notice of motion.
3. Mr. Thakkar, the learned Counsel appearing on behalf of the appellants submitted that the Customs Authorities should be directed to take charge of the said five cases/packages lying in the docks, particularly in view of the fact that according to Mr. Thakkar, the said packages/cases have to be inspected and they will have to be preserved till the hearing and final disposal of the said petition. This submission was made on the basis that at the final hearing of the petition, it would be required to be examined as to the contents of the said five cases/packages.
4. We do not find any merit in the contention of the learned Counsel for the appellants. Firstly, in view of the orders passed by the Supreme Court the Customs Department had released 76 packages/cases. In fact, prior thereto all throughout the proceedings the Customs Department has been contending that all the cases in question contain antiquities. However, in view of the order of the Supreme Court directing the Customs Department to release 76 cases, the title of the said five cases has now vested in the appellants/petitioners. Secondly, one fails to understand that under which provisions of the Customs Act, this Court should direct the Customs Department to keep 5 cases lying in the docks and store in the bonded warehouse. Pursuant to the orders of the Supreme Court, if the cases in question are released, it is the duty of the appellants to take steps in respect of 5 cases which are lying in the docks. In the circumstances, it is not proper for this Court under Article 226 of the Constitution of India to direct the Customs Department to take charge of the said cases as prayed for in the notice of motion.
5. In the Circumstances, we do not find any merit in the present appeal and we also do not see any reason to interfere with the impugned order passed by the learned Single Judge on notice of motion.
6. Accordingly, appeal fails and is dismissed with costs.