ORDER
1. By consent of both parties, the main writ petition itself is taken up today for final hearing.
2. I have heard Mr. Habibullah Badhsha, Senior Counsel, for the petitioner and Mr. C.A. Sundaram, Addl. Central Government Standing Counsel for the respondents.
3. The petitioner has filed the above writ petition for a mandamus directing the second respondent, the Collector of Customs, to return the 30 Bars of gold of ten tolas each, detained under Receipt No. 086357 dated 21.4.1993 to the petitioner. The writ petition was admitted by the Court on 16.6.1993. The 2nd respondent also has filed counter.
4. The case of the petitioner is as follows:
The petitioner is a Singapore citizen of Indian origin. She arrived at the Madras Airport on 21.4.1993 by Air India flight. On her arrival she declared 100 kgs. of silver and 30 bars of gold of 10 tolas each before the Customs Officers under the Liberalised Import Scheme of Gold and Silver, announced by the Government of India. She has paid the appropriate duty for the gold and silver brought by her in convertible foreign currency as required by the Scheme and also obtained proper receipts. After paying the duty and cleared by the Officers, she was waiting for a co-passenger by name Samraj Ashockan, who had also arrived by the same flight and also brought gold and silver under the said Scheme. For that he had also paid duty under foreign currency and received the receipt thereof. The abovesaid co-passenger after paying the duty, entrusted with the petitioner the bag containing 42 gold bars, since he went to help two old men, who came with them, in the same flight and he assisted them to leave the Airport Customs Hall by pushing trolley out of the Exit gate. The petitioner was following the said co-passenger towards the Exit gate. At the entrance she was intercepted by the Intelligence officers. The petitioner told the officers that she has paid duty for 100 kgs. of silver and 30 bars of gold and apart from that she is having a bag containing gold bars belonging to the said co-passenger by name Samraj Ashookan. Since she did not have the receipt for the duty paid for the abovesaid 42 bars of gold, which belonged to the said co-passenger, she could not produce any receipt for the same at that time. It is further stated that the officers did not pay heed and took the petitioner alone inside a room for interrogation even though the said Samraj Ashookan volunteered to produce the receipt for the said 42 bars of gold. The officers detained the petitioner the whole night at the Airport and interrogated and obtained statements from her. The officers allowed the petitioner to leave the Airport Customs Hall in the early hours of 22.4.1993 detaining the entire 72 bars of gold and issued a Detention receipt bearing No. 086357 dated 21.4.1993 stating that the goods were detained for verification. The officers asked the petitioner and the co-passenger Samraj Ashockan to meet the Collector of Customs at the Customs House, Madras, the same day after 10.30 hours, when the petitioner and the said Samraj Ashockan approached the Collector of Customs on 22.4.1993 at about 11.15 A.M. he directed them to approach the Assistant Collector who wanted the petitioner alone to be present for further enquiry. The said Samraj Ashockan had handed over a letter addressed to the Collector of Customs on 22.4.1993 claiming the 42 pieces of gold bars and handed over the original baggage receipt and the passport to the Superintendent, RSI Unit of the Customs House. The petitioner submits that for the 30 bars of gold, she has already paid duty and produced the receipt No. 16635 dated 21.4.1993 before the Customs Authorities. Since the said 30 bars of gold is not in dispute, but the officers have detained these bars, along with the 42 bars of gold, the petitioner sent a registered letter to the Collector of Customs on 25.5.1993 to release the same to her at the earliest. The Collector of Customs even after receiving her letter, so far not released the same to her. Hence the petitioner has filed the above writ petition for a mandamus directing the second respondent to return the 30 bars of gold detained under Receipt No. 086357 dated 21.4.1993 to the petitioner.
5. The respondents resisted the writ petition on the ground that the writ petition is highly premature
inasmuch as an investigation is under way regarding alleged smuggling gold in which the petitioner
appears prima facie to be involved.
6. It is stated in the counter and reiterated by Mr. C.A. Sundaram that the preliminary investigation shows that the petitioner may have been assisting and abetting the said Ashockan in clearing 42 gold bars without payment of duty on the same, apart from the fact that the gold and silver on which the duty was paid, was also for the said Ashockan. Hence in the facts and circumstances of the case the petitioner’s request for the release of 30 gold bars would be properly considered by the Adjudicating Authority, should any adjudication be initiated upon completion of investigation, on the merits of the matter at the time of adjudication. Since the investigations are being conducted into the overall acts in the alleged attempted smuggling of gold, it would be just and proper not to release any gold bars at this stage. Mr. Habibullah Badsha, Senior Counsel, invited my attention to the documents filed along with the writ petition. He has also produced the duty receipt bearing No. 16635 issued to the petitioner for payment of a sum of Rs. 76,890/- by way of customs duty. The second document which is relied on by Mr. Habibullah Badsha is the Customs Receipt bearing No. 086357. Two items are referred to in the said detention receipt: (1) one Khaki pouch containing gold bars (ten Tolas each), 30 Nos. (2) One Khaki pouch, containing gold bars (ten tolas each) 42 Nos. The reason for detention of the above two items are mentioned in the detention receipt itself. So far as Item No. l is concerned, which belongs to the petitioner, it is mentioned the said item of 30 Nos. of gold bars was detained for verification. Insofar as item No. 2 above is concerned, it is detained for investigation and further action. The reasons given in the detention receipt will amply establish that there is no dispute with regard to item No. l which belongs to the petitioner, and which was detained only for verification and item No. 2 for investigation and for further action. He has also invited my attention to the mahazar and also the duty paid by the co-passenger Samraj Ashockan bearing No. 16636 dated 21.4.1993. The letter dated 25.5.1993 written by the petitioner to the Collector of Customs was also referred to at the time of arguments. It is an admitted fact that the petitioner has already paid the duty and produced the receipt No. 16635 dated 21.4,1993 before the Customs Authorities. There is no dispute about 30 bars of gold. But 30 bars of gold along with the 42 bars of gold have been detained by the Customs Officer only for the purpose of verification. The abovesaid 30 bars of gold has nothing to do with the violation and the proposed action of the respondents against the co-passenger Samraj Ashockan. The dispute even according to the Department, as could be seen from the detention receipt could only be insofar as it relates to the 42 bars of gold, of ten tolas each, brought by the co-passenger Samraj Ashockan. Hence the detention of the 30 bars of gold belonging to the petitioner, in my opinion is without jurisdiction. The petitioner has imported the said 30 bars of gold as per the rules and has also paid the duty and produced the receipt before the Authorities concerned. Hence the detention of the said 30 bars of gold is unauthorised. The respondents, in my view, have no right to detain the said gold bars belonging to the petitioner and they are under the obligation to return the same to the petitioner under law and she has a right to receive the same, since she has declared and paid the duty for the same. Hence I direct the respondents to immediately release the 30 bars of gold of 10 Tolas each, detained under Receipt No. 086357 dated 21.4.1993 to the petitioner. The mandamus is issued in favour of the petitioner, otherwise the very purpose of the Scheme will be defeated and become meaningless. The petitioner is the legal owner of the 30 bars of gold having imported under the Rules and having paid the duty to the Authorities concerned. I make it clear that it is open to the Authorities to produced (sic) against the co-passenger Samraj Ashockan and proceed against him under the provisions of the Customs Law, if there is any violation. The respondent/Department also will proceed against the petitioner if she has violated any of the Rules insofar as it relates to the 42 bars of gold, and if she has abetted the alleged smuggling as contended by the Customs Department. The Writ petition is disposed of accordingly. No costs.
7. W.M.P. No.16454 of 1993 is dismissed.