* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 4724/2011
% Date of Decision: August 4, 2011
Harish Muljimal Gandhi ....Petitioner
Through IN PERSON
VERSUS
Union of India & Ors. .....Respondents
Through Mr. Mukesh Anand, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 04.08.2011 SANJIV KHANNA, J.
We have heard the petitioner who has appeared in person.
Petitioner has stated that he was a Non Resident Indian and on 2nd
October, 1997, he came from Dubai and from his baggage 319 gms
gold, valued at Rs.1,46,740/-, electronic and miscellaneous goods
valued at Rs.2,56,500/- and Indian currency of Rs.3,500/- were seized at
the Indira Gandhi International Airport. He was prosecuted but was
acquitted on 24th April, 2010. Copy of the judgment passed by the trial
court has, however, not been placed on record.
2. The petitioner wrote a letter dated 8th October, 2010, to
Additional Commissioner of Customs, for release of gold for re-export
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and demanded monetary value of electronic goods. He also asked for
interest.
3. By letter dated 15th November, 2010, the Additional
Commissioner of Customs, IGI, Airport, informed the petitioner that the
ACMM, had acquitted him on technical grounds and an appeal has been
filed against the said acquittal. On the question of return of gold,
monetary value of the electronic and miscellaneous goods and interest,
it was stated that the petitioner had been called upon to show cause as
to why the same should not be confiscated under Section 111(d) and
111(l) of the Customs Act, 1962, after following the prescribed
procedure. It was stated that a show cause notice dated 24th March,
1998, had been issued under the said provision as well as why the
penalty should not be levied under Section 112(a)&(b) of the Act,. The
said show cause notice was replied by Mr. J.K. Srivastava, Advocate, and
the personal hearing was also attended by the petitioner alongwith Mr.
J.K. Srivastava, Advocate. By the order dated 11th January, 1999,
direction was issued for absolute confiscation of gold and Indian
currency of Rs.3500/- and the electronic and misc. goods were also
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ordered to be confiscated with an option for redeeming the same on
payment of Rs.2,56,000/- and a redemption fine of Rs.50,000/- under
Section 125 of the Customs Act, 1962. Personal penalty of Rs.1 lakh
was imposed under Section 112(a) & (b) of the Customs Act, 1962.
4. Against this order, it is stated that the petitioner had filed an
appeal before the Commissioner (Appeals) and the same was rejected
vide order dated 15th September, 1999.
5. It is alleged that the petitioner had then preferred a revision
application before the Government of India, Ministry of Finance,
Department of Revenue, and the same was decided by the order dated
14th February, 2000. The Order-in-Appeal was modified to the extent
of allowing redemption of gold on payment of fine of Rs.40,000/- within
four weeks from the receipt of the order. The said order has become
final and has not been challenged. As the redemption fine was not
paid, the gold was confiscated.
6. Petitioner in the letter dated 8th October, 2010, had stated that
he had not received any show cause notice and had never appointed
Mr. J.K. Srivastava, Advocate to appear and file appeals/revision. The
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petitioner, thereafter wrote two letters dated 23rd December, 2010 and
20th March, 2011, but the respondent vide their letters dated 16th
January, 2011 and 21st April, 2011, repudiated the stand and stance of
the petitioner.
7. The petitioner has submitted that he had not appointed J.K.
Srivastava, Advocate to appear in the matter. He has submitted that no
Show Cause Notice was issued and there was no order of confiscation
and the appellate order and the revision order were not received by
him.
8. We do not find any merit in the said contentions. It is difficult to
presume and accept that an Advocate would have entered appearance,
filed a reply to the Show Cause Notice and then preferred an appeal
and a revision petition without instructions. Filing and appearance
before the appellate authority and in revision entails expenditure, time
and effort. A legal professional would not act, file and prosecute an
appeal or revision without instructions in a matter of this nature. It is
not possible to accept that the petitioner would have remained quite
for over 17 years. It may be noticed here that the petitioner was
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prosecuted for offences under the Customs Act, 1962 and, therefore,
was well guided and had access to legal advice. The contentions raised
are an after thought, deserve no credence and are to be rejected.
9. Keeping in view time gap, the aforesaid facts and the conduct of
the petitioner, we are not inclined to issue notice on the present writ
petition and the same is accordingly dismissed in limine.
SANJIV KHANNA, J.
CHIEF JUSTICE
August 04, 2011
Kkb
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