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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.668 OF 2000
with
CIVIL APPLICATION NO.2379/2005
Union of India.
Through the Commissioner of Customs(P). ..Petitioner
-VERSUS-
Mr.Zohar Taherali Dalal and others. ..Respondents
ig ...........
Mr.P.S.Jetly, for the Petitioner.
Mr.V.M.Advani, for the Respondent No.1.
Mr.A.M.Sachwani, for the Respondent No.2.
..........
CORAM : V.C.DAGA & K.K. TATED, JJ.
(Dated 30th March, 2010)
JUDGMENT (Per K.K.Tated, J):
1 Heard the learned counsel for the respective parties.
2 By this petition under Articles 226 and 227 of the
Constitution of India r/w Section 130 of the Customs Act, 1962, the
Petitioner/Revenue challenges the orders passed by the Customs,
Excise & Gold (Control) Appellate Tribunal, West Regional Bench at
Mumbai (in short CEGAT) dated 17.01.1998 passed in Appeals Nos.
178/1997 and 249/1997 and dated 15.05.1998 passed in reference
application.
THE FACTS
3 The Respondent No.1 is NRI and the Respondent No.2
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is the Customs Officer. It is the case of the Petitioner/Revenue that
the Respondent No.1 was involved in smuggling foreign currency of
US Dollars 40,000 equivalent to Indian Rs.13,30,000/-
approximately, sometime on 12.10.1995 in contravention of
Sections 111, 113, 114, 118 and other Sections of the Customs Act,
1962 read with Section 13(2) of the Foreign Exchange Regulation
Act, 1973. The Respondent No.2 is an officer of the Customs who
prima facie alleged to have helped the Respondent No.1 in
fradulently procuring the currency declaration form dated
18.09.1995 for US dollars 40,000 without actually importing the
same. It is the case of the Petitioner that on 12.10.1995 the officers
of the Customs Preventive Commissionerate, Mumbai pursuant to a
specific prior information intercepted the Respondent No.1 i.e.
Mr.Zohar Taherali Dalal, the holder of Indian Passport issued in
Dubai on 11.12.1993 after he had cleared the immigration and
customs for the purpose of boarding flight to Dubai, foreign
currency of US Dollars 40,000 was found in his possession.
4 It is the case of the Petitioner that the show-cause
notices dated 08.04.1996 were issued to the Respondents Nos.1
and 2. In reply thereto, the Respondents Nos.1 and 2 filed their
reply dated 09.05.1996 and 29.05.1996 respectively. The
Respondents Nos.1 and 2 cross-examined the various officers
including the Investigating Officer.
5 After following due process of law, the Adjudicating
Authority viz. the Commissioner of Customs (Preventive) passed
the order-in-original dated 17.12.1996 confiscating the foreign
currency worth US dollars 40,000 along with handbag used for
carrying the currency under Section 113(d) of the Customs Act,
1962 and imposing a personal penalties of Rs.10 Lacs and Rs.5 Lacs
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on the Respondents Nos.1 and 2 respectively under Section 114(1)
of the Customs Act, 1962.
6 Against the order-in-original dated 17.12.1996, the
Respondents Nos.1 and 2 preferred the appeals bearing Nos.
178/1997 and 249/1997 before the CEGAT. The said appeals were
allowed by the CEGAT vide its order dated 17.01.1998 and the
order-in-original dated 17.12.1996 was set aside.
7 Being aggrieved by the aforesaid order dated
17.01.1998 passed in the appeals, Reference Application under
Section 130(1) of the Customs Act, 1962 was filed by the
Petitioner/Revenue before the CEGAT requesting to refer the
following questions of law for the opinion of this High Court:-
(1) Whether the so called retraction of statement dated
13.10.1995 would wipe out the original statement
completely and more so when the statement given
by the accused on 12th and 13th are spontaneous
statement and therefore, admissible in terms of theTribunal’s decision reported in 1986 (25) ELT 541
and 1986(25) ELT 413?
(2) Whether it was permissible for the Tribunal to rely
on this part of the additional evidence withoutobserving proper procedure in terms of Rule 23 of
the CEGAT procedure rule and in coming to the
decision of exonerating both the accused in its
impugned order and whether the findings based on
this fact would be hit by rule 23 of the CEGATProcedure Rules?
(3) Whether on the basis of the facts and circumstances
highlighted in the statement of facts in this
application it was proper and legal to come to a
logical conclusion that the Department has not
adduced evidence sufficient to raise a presumption
against the accused and in favour of the
Department’s findings in the adjudicating order?
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8 The CEGAT vide its order dated 15.05.1998 dismissed
the Reference Application holding that no question of law arises for
referring it to the High Court.
9 Thereafter, the Respondent No.1 filed several
applications with the Petitioner/Revenue for return of the
confiscated currency as well as pre-deposit which he had made at
the time of preferring the appeal. Inspite of several applications, the
Petitioner did not take any action. The Respondent No.1, therefore,
filed Misc. Application dated 12.10.1999 before the CEGAT under
Rule 41 of the Customs, Excise & Gold (Control) Appellate Tribunal
(Procedure) Rules, 1982 with following prayers:-
“(a) The respondent be directed to strictly comply with
the order No.173& 174/98/WZB/C-II dated17.01.1998 passed by this Hon’ble Tribunal and
return the foreign currency of US $ 40,000
forthwith to the appellant.
(b) The respondent be directed to pay interest at the
official rate on the above mentioned amount from
the date of passing of the order i.e. 17.01.1998passed by the Hon’ble Tribunal till the date of
actual payment made to the appellant.
(c) Contempt notice be issued against the respondent
for non-compliance of the order passed by thisHon’ble Tribunal and suitable action be taken as a
consequence thereof.
(d) Such other incidental orders and reliefs as may be
necessary, keeping in mind the facts and thecircumstances of the present case.”
10 The CEGAT vide its order dated 04.01.2000 allowed the
Misc. Application filed by the Respondent No.1 and directed the
Commissioner of Customs (Preventive) to implement the order
dated 17.01.1998 forthwith and report the compliance by
15.02.2000.
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11 Instead of implementing the order dated 17.01.1998
passed by the CEGAT, the Petitioner preferred the present Writ
Petition on 13.01.2000.
PRELIMINARY OBJECTION
12 Mr.Advani, learned counsel appearing for the
Respondent No.1, raised a preliminary objection about
maintainability of the present Writ Petition on the ground that
under Section 130(3) of the Customs Act, 1962 if the Appellate
Tribunal refuses to state the case on the ground that no question of
law arises, the Commissioner of Customs may within six months
from the date on which he is served with notice of such refusal,
apply to the High Court and the High Court may if it is not satisfied
with the correctness of the decision of the Appellate Tribunal,
require the Appellate Tribunal to state the case and to refer it.
However, in the present case no such application under Section
130(3) of the Customs Act, 1962 was made to the High Court by
the Petitioner/Revenue within six months from the date of order
dated 15.05.1998. In fact the present petition has been filed nearly
two years after the order and that too, only after the CEGAT passed
further order dated 04.01.2000 directing the Revenue to comply
the order dated 17.01.1998. In these circumstances, Mr.Advani
submitted that the Petitioner ought to have filed an application
under Section 130(3) of the Customs Act, 1962 within six months
from the date of receipt of the order dated 15.01.1998. This is
specific alternate remedy provided under the Act which till today
the Petitioner has not availed. Therefore, the present Writ Petition
is not maintainable on this ground alone and the same is liable to
be dismissed. In support of his preliminary objection, he referred to
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the Section 130 of the Customs Act, 1962, during the relevant
period, which reads thus:-
“130. Statement of case to High Court.
(1) The Commissioner of Customs or the other
party may, within sixty days of the date upon
which he is served with notice of an orderunder section 129B (not being an order
relating, among other things to the
determination of any question having a
relation to the rate of duty of customs or tothe value of goods for purposes of
assessment) by application in such form as
may be specified by rule made in behalf,
accompanied, where the application is made
by the other party, by a fee of two hundredrupees, require the Appellate Tribunal refer
to the High Court any question of law
arising out of such order and, subject to theother provisions contained in this section,
the Appellate Tribunal shall, within one
hundred and twenty days of the receipt ofsuch application, draw up a statement of the
case and refer it to the High Court:
Provided that the Appellate Tribunal may, if
it is satisfied that the applicant was
prevented by sufficient cause frompresenting the application within the period
hereinbefore specified, allow it to bepresented within a further period not
exceeding thirty days.
(2) On receipt of notice that an application has
been made under sub-section (1), the personagainst whom such application has be made,
may, notwithstanding that he may not have
filed such an application, file within forty-
five days of the receipt of the notice, a
memorandum of cross-objections verified in
such manner as may be specified by rulesmade in this behalf against any part of the
order in relation to which an application for
reference has been made and such
memorandum shall be disposed of by the
Appellate Tribunal as if it were an
application presented within the time
specified in sub-section (1).
(3) If, on an application made under sub-section
(1), the Appellate Tribunal refuses to state
the case on the ground that no question of
law arises, the Commissioner of Customs,
or, as the case may be, the other party may,
within six months from the date on which he::: Downloaded on – 09/06/2013 15:46:24 :::
*7*is served with notice of such refusal, apply
to the High Court and the High Court may, if
it is not satisfied with the correctness of the
decision of the Appellate Tribunal, require
the Appellate Tribunal to state the case andto refer it, and on receipt of any such
requisition, the Appellate Tribunal shall
state the case and refer it accordingly.
(4) Where in the exercise of its powers under
sub-section (3), the Appellate Tribunal
refuses to state a case which it has been
required by an applicant to state, theapplicant may, within thirty days from the
date on which he receives notice of such
refusal, withdraw his application and, if he
does so, the fee, if any, paid by him shall be
refunded.”
13
IN REPLY to the preliminary objection raised by the
Respondent No.1, Mr.Jetly, learned counsel for the
Petitioner/Revenue submitted that as the order passed by the
CEGAT is without considering the facts on record, the Petitioner can
challenge the same under Articles 226 and 227 of the Constitution
of India. He further submitted that the present Writ Petition is
pending for last ten years and therefore, at this stage, the Court
should not dismiss the same on technical ground of alternate
remedy. For this proposition, Mr.Jetly pressed into service the
judgment in the matter of Dhampur Sugar Mills Ltd. Vs. Union of
India reported in 2000(122) ELT 333 (SC) wherein the Apex Court
held that when the petition is pending for seven years it is little
harsh to relegate the Petitioner therein to the alternate remedy.
Paragraph No.3 of the said judgment reads thus:-
“3. The petition had been pending for seven years
and it does seem a little harsh to relegate the
appellant after seven years to the alternate remedy.
The learned Additional Solicitor General fairly
states, in the circumstances, that the order under
challenge may be set aside and the writ petition::: Downloaded on – 09/06/2013 15:46:24 :::
*8*(Civil Misc. Writ Petition No.747 of 1962) may be
restored to the file of the High Court to be heard
and disposed of on merits. This is appropriate and it
should be done expeditiously.”
14 Mr.Jetly, further submitted that in alternative the
Petitioner already preferred Civil Application No.2379/2005 for
allowing the Petitioner to treat or convert the present Writ Petition
as Reference Application under Section 130(3) of the Customs Act,
1962. Prayer clauses (b), (c) and (d) of the said Civil Application
read as under:-
“(b) in the alternative and without prejudice, this
Honourable Court may be pleased to treat/ convert
the above petition as a reference application filed
under Section 130(3) of the Customs Act, 1962.
(c) that this Honourable Court may be pleased to
condone the delay,
(i) in filing the petition/reference application
from the date of receipt of the order till the date offiling of above petition/ reference application
excluding the time permitted by the Act.
(ii) from the date of filing of the above petition
till the date of converting the same into a reference
application.
(d) that this Honourable Court may be pleased to direct
the Appellate Tribunal to state the case and to refer
the questions of law or such other question/
questions of law to it for adjudication/
determination.”
ALTERNATE SUBMISSION
15 Mr.Jetly, learned counsel for the Petitioner further
submitted that if a plea of alternate remedy is upheld by this Court
as raised by the Respondent No.1, in that eventuality the present
petition may be treated as Reference Application under Section
130(3) of the Customs Act, 1962.
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16 IN REPLY, Mr.Advani submitted that as the Petitioner
preferred Civil Application No.2379/2005 for allowing them to
treat or convert the present petition as Reference Application under
Section 130(3) of the Customs Act, 1962, it shows that the
Petitioner has abandoned its right to proceed with the Writ Petition
filed under Articles 226 and 227 of the Constitution of India against
the orders dated 17.01.1998 and 15.05.1998. At any rate,
according to him, this petition is not tenable. In support of his
submission, he relied on the judgment in the matter of
Commissioner of Central Excise, Meerut Vs. Century Laminating
Company reported in 2005(183) ELT 16 (Allahabad). In that case,
the Allahabad High Court held that the writ petition was not
maintainable when alternative remedy i.e. appeal was provided
under the Act. In that case the Tribunal’s order had attained finality
since the Petitioner therein had neither filed Reference Application
under Section 35(G) of the Central Excise Act, 1944 nor filed an
application for recalling or rectification of the order, it was,
therefore, held that the Petitioner could not be permitted to
challenge the order of Tribunal after lapse of five years by filing the
Writ Petition under Article 226 of the Constitution of India.
17 Mr.Advani further submitted that in any case the
present Writ Petition is not maintainable under Articles 226 and
227 of the Constitution of India because the alternate remedy by
way of Reference Application provided under the Act was not
availed by the Petitioner. Not only that but after the CEGAT passed
the order dated 04.01.2000 under Rule 41 of the Customs, Excise &
Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 for
compliance of the order dated 17.01.1998, the Petitioner filed the
Writ Petition on 13.01.2000 after a period of two years from the
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day the order dated 15.05.1998 was passed, as such, in his
submission, this petition is not bonafide and not a fit case to invoke
writ jurisdiction of this Court.
CONSIDERATION OF OBJECTION
18 After hearing both the sides at length, we are of the
opinion that the present Writ Petition under Articles 226 and 227 of
the Constitution of India challenging the orders dated 17.01.1998
and 15.05.1998 is not maintainable in view of the alternate remedy
available to the Petitioner under the Customs Act, 1962. If the
reasons given by the Petitioner were to be accepted as valid basis
for exercising our judicial discretion to entertain this petition on
merits under extra-ordinary jurisdiction under Article 226 of the
Constitution of India, then the provision for reference would be
rendered nugatory. A person aggrieved by the final finding of the
appellate authority would despite express provision of reference,
will invoke writ jurisdiction with impunity.
19 In the present case, there was a specific provision under
Section 130(3) of the Customs Act, 1962 for filing the reference
application in the High Court within six months against the order of
refusing to refer the questions of law to the High Court. The
Allahabad High Court in the matter of Century Laminating
Company (supra) held that when the alternate remedy is available,
writ petition should not be entertained as a matter of course.
20 It is to be noted that it is not the case that the question
which is arising from the order of Tribunal raised in the present
petition cannot be raised in the reference application and/or
appeal. When a forum is provided under the statute for filing of the
reference application and/or appeal, there is no reason to
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supersede the said provision and to file the Writ Petition asking the
Court to adjudicate the matter in Writ Petition under Article 226 of
the Constitution of India. The Apex Court time and again held that
the High Court should not entertain the Writ Petition when the
statutory remedy is available to the parties in the statute, unless
exceptional circumstances are made out. When under the statute
there is an allegation of infringement of fundamental rights or
when on the undisputed facts the taxing authorities are shown to
have assumed jurisdiction which they do not possess can be the
grounds on which the writ petition can be entertained. But
normally, the High Court should not entertain writ petition unless it
is shown that there is something more in a case, something going to
the root of the jurisdiction of the authority, something which would
show that it would be a case of palpable injustice to the writ
petition to force him to adopt the remedies provided by the statute.
21 The Apex Court in the matter of Uttaranchal Forest
Development Corporation and another Vs. Jabar Singh and others,
reported in (2007) 2 SCC 112, held that as a matter of course the
High Court should not entertain the writ petition when alternate
remedy is available under the statute. The judgment reads thus:-
(Head Note-E)
“E. Constitution of India- Art.26- Alternative
remedy- Available under statute- High Court
should not ordinarily entertain the writ petition
except where a very strong case is made out for
departure from the general rule- Dispute relating
to enforcement of workmen’s right and employer’s
obligation under Industrial Disputes Act, 1947-
Even though specific remedy provided under the
Act, workmen instead of availing the same,
directly approached High Court under Art.226- No
exceptional circumstances shown for taking such a
course- Held: High Court not justified in
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entertaining the writ petition- Writ Petitioners,
who have not invoked jurisdiction of Labour
Court/ Industrial Tribunal under the Act, not
entitled to any relief in the writ petition.”
22 In the case of K.K.Shrivstava v. Bhupendra Kumar Jain,
1977 U.J. (SC) 344, three Judge Bench of the Apex Court held as
under:-
“4. It is well settled law that while Art.226 of
the Constitution confers a wide power on the High
Court there are equally well settled limitation
which this Court has repeatedly pointed out on theexercise of such power. One of them which is
relevant for the present case is that where is anappropriate or equally efficacious remedy the
Court should keep its hands off…..”
23 In the case of Naib Subedar Lachhman Dass v. Union
of India, 1977 U.J. (SC) 355, three Judge Bench of the Apex court
again ruled that in writ petition filed after a gross delay for which
there is no satisfactory explanation, the High Court should not
exercise writ jurisdiction.
24 In the case of P.S.Sadasivaswamy v. State of Tamil
Nadu, AIR 1974 SC 2271, the Apex Court ruled as under:
“It is not that there is any period of limitation
for the Courts to exercise their powers under Art.
226, nor is it that there can never be a case
where the Courts cannot interfere in a matter
after the passage of a certain length of time.
But it would be a sound and wise exercise of
discretion for the Courts to refuse to exercise
their extraordinary powers under Art.226 in the
case of persons who do not approach it
expeditiously for relief and who stand by and
allow things to put forward stale claims and try
to unsettle settled matters.”
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25 In Rattan Singh & ors. v. State of Punjab & Ors.,
1979 U.J. (SC) 723, the scheme of consolidation of holdings
relating to Village Bhawanipur, Tahsil Garhsankar, DistrictHoshiarpur, Punjab prepared by the Consolidation Officer,
confirmed by the Settlement Officer on February 11, 1964 was
sought to be challenged in the year 1968 in the writ petition. The
writ petition was dismissed by the High Court on the ground ofdelay and latches. The Apex Court in appeal confirmed that order
holding that the High Court was justified in dismissing the writ
petition.
26 In any case, in the present matter, the Petitioner having
realized the objection raised by the Respondents in their affidavit in
reply, preferred Civil Application No.2379/2005 praying to allow
them to treat/ convert the present petition into a reference
application under Section 130(3) of the Customs Act, 1962. This
itself shows that the Petitioner waived their challenge to the orders
dated 17.01.1998 and 15.05.1998 under Articles 226 and 227 of
the Constitution of India and therefore, the Writ Petition deserves
to be dismissed on this count alone.
CAN WRIT BE TREATED AS REFERENCE PETITION
27 The Petitioner’s Civil Application No.2379/2005
praying to allow them to treat/convert the writ petition into a
Reference Application under Section 130(3) of the Customs Act,
1962 cannot be allowed since it is barred by limitation. In the
present case, the CEGAT passed an order on 15.05.1998 refusing to
refer the questions of law to this Court. The said order was received
by the Petitioner on 26.05.1998, thereafter, a letter dated
04.06.1988 was addressed to the Deputy Secretary & Legal Adviser,
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Ministry of Law to give legal advice. One Mr.R.Raghupati,
Additional Legal Adviser, Ministry of Law, Government of India
gave advice which was received by the Petitioner on 14.10.1998.
Thereafter, the Petitioner appointed counsel on 15.12.1998 for
filing the present Writ Petition. The counsel appointed by the
Petitioner drafted the writ petition on 25.01.1999 and the same
was forwarded to the Department on 23.04.1999 for correction. A
fair copy of the petition settled by the counsel was collected by the
Department for fresh typing on 25.10.1999 and thereafter, the
present Writ Petition came to be filed on 13.01.2000. However, as
per the provisions of Section 130 of the Customs Act, 1962, the
limitation for preferring reference in the High Court is of six
months. There is no provision under the Customs Act, 1962 for
condonation of delay in filing the reference in the High Court. The
Petitioner has also not placed on record any authority to show that
the delay in preferring the reference application under Section
130(3) of the Customs Act, 1962 can be condoned. When the
Department received the copy of order dated 15.05.1998 on
26.05.1998, they filed the present Writ Petition on 13.01.2000 i.e.
after the delay of more than two years. Not only this but the
Petitioner preferred the Civil Application No.2379/2005 on
08.09.2005 for treating the writ petition as reference application
under Section 130(3) of the Customs Act, 1962 and therefore,
there is delay of more than seven years.
28 The Apex Court, in the matter of Commissioner of
Customs & Central Excise Vs. Hongo India Pvt.Ltd. reported in
2009(236) ELT 417 (SC), held that Section 5 of the Limitation Act
is not applicable in preferring the reference application. Head note-
A of the said judgment reads thus:-
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“Reference to High Court- Limitation- High Court’s
powers- Whether High Court empowered to condone delay in
filing reference application- Additional period provided in case
of appeal to Commissioner (Appeals) and revision by CentralGovernment – Appellate Tribunal empowered to condone delay
if sufficient cause for delay shown- For appeal and reference
application before High Court, 180 days only provided byParliament and no further period for filing appeal or making
reference to High Court mentioned- Section 5 of Limitation Act,
1963 excluded in the absence of clause condoning delay by
showing sufficient cause after prescribed period- Time limitprescribed in Section 35H of Central Excise Act, 1944 absolute
and not extendable by court under Section 5 of Limitation Act,
1963. [paras 2, 12, 18, 19, 20 & 21]”
29 In view of the above findings it can be safely said that
when there is no provision to condone the delay in preferring the
reference application in this High Court, the Civil Application No.
2379/2005 which has been filed after the expiry of limitation
period cannot be allowed and the same also deserves to be
dismissed.
30 In view of the above facts and circumstances of the
case, it is not necessary to examine the correctness of the impugned
orders of the Tribunal on merits. However, since the parties have
also addressed us on merits of the matter, we propose to record our
finding even on merits.
SUBMISSIONS ON MERIT
31 Mr.Jetly while taking us on merits of the matter urged
that the Petitioner/Revenue had received information on
12.10.1995 that the Respondent No.1 will be smuggling near about
30,000 to 40,000 US dollars to Dubai. Pursuant to the said
information, the officers of Petitioner took search of the Respondent
No.1’s handbag in presence of the two independent witnesses,
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which resulted in recovery of one white coloured envelope
addressed to Mr.Zohar T. Dala and one brown coloured envelope.
Upon opening the said two envelopes, the same were found to
contain 40,000 US dollars of 100 denomination each. This foreign
currency of 40,000 US dollars equivalent to Indian Rs.13,30,000/-
approximately was recovered and the same was seized under the
Panchanama under the reasonable belief that the said currency
notes were attempted to be smuggled out of India and hence, liable
to be confiscated.
32 Mr.Jetly urged that the statement of the Respondent
No.1 was recorded before the Superintendent of Customs, Mumbai
under Section 108 of the Customs Act, 1962 wherein he inter-alia
admitted recovery of 40,000 US dollars from his handbag and
stated that on 12.10.1995 he was to depart to Dubai by Flight
No.EK-501 and that he was carrying only his handbag.
33 Mr.Jetly, learned counsel for the Petitioner/Revenue
submitted that though the Respondent No.1 retracted his statement
later on but the same cannot be considered at the time of deciding
the present case because the Apex Court in the matter of Vinod
Solanki Vs. Union of India reported in 2009 (233) ELT 157 (SC)
has held that the Court must bear in mind the attending
circumstances which would include the time of retraction, the
nature thereof, the manner in which such retraction has been made
and other relevant factors to arrive at a finding as regards to the
voluntary nature of statement or otherwise of a confession which
has been retracted. Mr.Jetly mainly relied on paragraph No.34 of
the said judgment which reads thus:-
“34. A person accused of commission of an offence is not
expected to prove to the hilt that confession had been obtained
from him by any inducement, threat or promise by a person in::: Downloaded on – 09/06/2013 15:46:25 :::
*17*authority. The burden is on the prosecution to show that the
confession is voluntary in nature and not obtained as an
outcome of threat, etc. if the same is to be relied upon solely
for the purpose of securing a conviction. With a view to arriveat a finding as regards the voluntary nature of statement or
otherwise of a confession which has since been retracted, the
Court must bear in mind the attending circumstances whichwould include the time of retraction, the nature thereof, the
manner in which such retraction has been made and other
relevant factors. Law does not say that the accused has to
prove that retraction of confession made by him was because ofthreat, coercion, etc. but the requirement is that is may appear
to the court as such.”
34 Mr.Jetly, learned counsel for the Petitioner further
submitted that the Respondent No.1 could not establish the source
from where he had procured such large sum of foreign currency
even though no permanent source of income was available to him.
He further submitted that during the course of investigation an
attempt was made by the Respondent No.1 to show that the foreign
currency seized was purchased from one firm viz. Ulmas Dubai
Exchange Agency. When attempts were made by the Petitioner
through the Indian diplomatic channel to confirm this fact with the
said firm, but it did not yield any result and the said firm refused to
reply to the queries raised by the Indian authorities. Mr.Jetly
further submitted that it is mandatory for any passenger to produce
the documentary evidence of its source of procurement when the
amount exceeds 250 US dollars. In the present case, the
Respondent No.1 failed to produce any cogent evidence to show
how he procured 40,000 US dollars.
35 Mr.Jetly, learned counsel for the Petitioner/Revenue
further submitted that the CEGAT failed to consider the various
points logically dealt with in the order-in-original which were
supported by the evidence on record. He further submitted that the
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*18*
CEGAT while allowing the appeals of the Respondents Nos.1 and 2
failed and neglected to consider that on 12.10.1995 the Customs
Officers of Preventive Commissionerate, Mumbai pursuant to the
specific prior information intercepted the Respondent No.1 after he
cleared the immigration and customs for the purpose of boarding
the flight to Dubai and the officers seized foreign currency of US
Dollars 40,000 from his possession.
36 Mr.Jetly further submitted that one officer of the
Customs i.e. the Respondent No.2 fraudulently managed the
currency declaration form to support the Respondent No.1 for
smuggling the said foreign currency. He further submitted that the
currency declaration form was never executed by the Respondent
No.1 when he arrived in India. He, therefore, urged that the
impugned orders passed by the CEGAT dated 17.01.1998 and
15.05.1998 are liable to be set aside.
PER CONTRA- ON MERITS
37 Mr.Advani, learned counsel for the Respondent No.1
submitted that the Petitioner/Revenue failed to produce cogent
evidence against the Respondent No.1 to show that he illegally
brought 40,000 US dollars in India. According to him, when the
Respondent No.1 arrived in India as per law he had executed the
currency declaration form showing that he had brought 40,000 US
dollars in India.
38 Mr.Advani further submitted that the Petitioner also
filed a criminal complaint under Section 135(1)(a) r/w 135(1)(ii)
of the Customs Act, 1962 and under Section 120-B of the Indian
Penal Code, 1860 against the Respondents Nos.1 and 2 in the Court
of the learned Chief Metropolitan Magistrate, Mumbai. In the said
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complaint, the Petitioner made an application for impleading one
Mr.Solanke as accused No.3, however, the said application was
rejected by the learned Metropolitan Magistrate vide order dated
10.04.2003 on the ground that there does not exist prima facie
evidence to implead Mr.Solanke as accused No.3. Against this order
dated 10.04.2003, the Petitioner/Revenue preferred Criminal
Revision Application No.407/2003 in the Court of the learned
Sessions Judge for Greater Mumbai, which also came to be
dismissed vide order dated 13.08.2004.
39 Mr.Advani further submitted that in the aforesaid
criminal case before the learned Metropolitan Magistrate, several
witnesses were examined by the Petitioner. Inspite of examining
several witnesses, the Petitioner failed to produce any cogent
evidence on record against the Respondents Nos.1 and 2.
Therefore, the learned Chief Metropolitan Magistrate, Mumbai vide
judgment dated 15.02.2008 acquitted the Respondents Nos.1 and 2
of the said offences and also directed to release the foreign
currency of 40,000 US dollars in favour of the Respondent No.1
after appeal period is over. Mr.Advani, therefore, submitted that
acquittal of the Respondents Nos.1 and 2 after full fledged trial by
the competent Court itself shows that the Petitioner falsely
implicated the Respondent No.1 in the present case. The said order
has achieved finality.
40 Mr.Advani further submitted that the officers of
Petitioner brought on record bogus documents to falsely implicate
the Respondent in the present case. According to him, on the basis
of the endorsement on the Respondent No.1’s passport, he cleared
immigration on 11.10.1995 for boarding Flight No.EK-501.
Similarly, the Respondent No.1’s ticket also shows Flight No.EK-501
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and departure time 0430 hours. However, the Petitioner prepared
the Panchanama after 09:30 AM on 12.10.1995. This shows that
the Petitioner prepared the false Panchanama immediately.
Mr.Advani further submitted that the officers of Petitioner placed
on record the boarding pass of Flight No.EK-505 with departure
time 09:45 AM. Not only that but no where the name of passenger
i.e. Respondent No.1 was shown in the said boarding pass of Flight
No.EK-505. This itself shows the manner in which the officers of
Petitioner intentionally created the false case against the
Respondent No.1.
41 Mr.Advani, learned counsel for the Respondent No.1
further submitted that the disciplinary proceedings were also
initiated by the Petitioner against their officer i.e. Respondent No.2
Yogesh Kumar under Rule-14 of the CCS(CCA) Rules, 1965 wherein
the Joint Commissioner of Customs (Vigilance), Mumbai held that
the inquiry officer’s observations were based solely on the retracted
statements of the passenger i.e. Respondent No.1 and therefore, it
was not necessary to impose major punishment on the Respondent
No.2. Accordingly, the Joint Commissioner of Customs (Vigilance)
vide order dated 20.01.2003 held as under:-
“It is therefore ordered that the pay of Shri Yogesh
Kumar, Preventive Officer be reduced by two stages from Rs.
6,550/- to Rs.6,200/- in the time scale of pay of Rs.
5500-175-9000 for a period of two years with effect from
01.02.2003. It is further directed that Shri Yogesh Kumar,
Preventive Officer will not earn increments of pay during the
period of reduction and that on the expiry of this period, the
reduction will have the effect of postponing his further
increments of pay.
The period of suspension in respect of Shri Yogesh
Kumar, Preventive Officer from 02.07.1996 to 05.08.1998 be
treated as on duty except for the purpose of pay and
allowances which is restricted to the amount of subsistence
allowances paid to him.”
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42 Mr.Advani, therefore, submitted that the Petitioner has
also not taken any serious action against the Respondent No.2Yogesh Kumar in the departmental inquiry.
43 Mr.Advani further submitted that the present petition
raises several disputed questions of facts. A mere perusal of the
petition will show that the Petitioner is only agitating the issues of
facts which are disputed. According to him, under the Customs Act,
1962 the CEGAT is the last fact finding body and after considering
all the facts and circumstances of the case, the CEGAT rightly
passed the impugned orders on its own merits. Mr.Advani further
submitted that the question of law which the Petitioner sought to
raise in this petition is that the CEGAT has allowed the appeal
merely because the Respondent No.1 has retracted his statement. A
perusal of the impugned order dated 17.01.1998 itself shows that
the CEGAT has not merely allowed the appeal on the basis of the
retracted statement but on the contrary it is in the subsequent order
dated 15.05.1998 the CEGAT was pained to point out that the
Petitioner/Revenue has totally misunderstood the order-in-original
because the order-in-original did not state or suggest or imply that
the retraction statement of the Respondent No.1 would have effect
of nullifying the admissions made in that behalf. On the basis of
these submissions, Mr.Advani submitted that the Petitioner cannot
challenge the disputed questions of facts under Article 226 of the
Constitution of India and thus, the petition is liable to be dismissed
with costs.
44 Mr.Sachwani, learned counsel for the Respondent No.2
adopted the submissions made by the learned counsel for the
Respondent No.1 and also relied on the orders passed in the
criminal proceedings.
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FINDINGS ON MERITS
45 We have heard both the counsel at length and perused
the documents on record. Firstly, petition is liable to be dismissed
as it involves disputed questions of facts. But, even on the material
available on record without raising any dispute with respect to that,
the petition cannot succeed on merit for the reasons recorded
hereinafter.
46 It is an admitted fact that the Respondent No.1 when
arrived in India declared 40,000 US dollars by executing the
currency declaration form. Though the Petitioner disputed
genuineness of the said form, they failed to produce on record any
cogent evidence in support of their say. It is to be noted that when
the Respondent No.1 was leaving India on 12.10.1995, he
produced the said currency declaration form and the same was
accepted by the Petitioner. Apart from that during the course of
investigation, the Petitioner failed and neglected to produce the
original currency declaration form on record. The Petitioner relied
on a photo-copy of the currency declaration form which was
handed over by the Respondent No.1 on 12.10.1995 at the time of
preparing Panchanama. This itself shows that the Petitioner failed
and neglected to produce a cogent evidence on record to verify
genuineness of the currency declaration form. Therefore, it is not
possible to accept the stand of Petitioner that the currency
declaration form produced by the Respondent No.1 is fabricated
document.
47 It is to be further noted that in a criminal proceedings
before the Chief Metropolitan Magistrate, Mumbai, the statements
of several witnesses were recorded including Mohan Ramchandra
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Salunkhe, Superintendent of Customs, Mumbai (PW-6) wherein he
stated in his examination-in-chief that the Respondent No.2 who
was posted on counter No.9 on that day came to him and informed
that one passenger had arrived by Emmirate Flight, standing at
counter No.9 and brought 40,000 US dollars in currency form. The
said witness further stated that the said passenger declared the
foreign currency of 40,000 US dollars and the currency declaration
form bears the signature of the said witness. In similar way, PW-7
Chaudhari also stated in his examination-in-chief that “one
passenger by name Johar Ali Dalal came along with currency
declaration form with 40,000 US dollars with him. He produced
before me CD form and US dollars. I counted currency and handed
over to my superior. I cancelled the currency declaration form. I
dispatched it to Administration Office. I am shown the form. It is the
same form it was produced before me by the passenger and it was sent
to administration office by me.” In similar way, other witnesses also
admitted the fact about the currency declaration form and the
currency brought by the Respondent No.1 when he arrived in India.
This itself shows that the Respondent No.1 brought along with him
the foreign currency as declared in the currency declaration form.
Therefore, it is not possible to rely on the Panchanama which was
prepared by the officers of Petitioner on 12.10.1995 in which
several incorrect statements were recorded such as flight number,
timing of flight, confession of Respondent No.1 etc..
48 The Respondent No.1 placed on record a photo-copy of
the ticket which shows the Flight No.EK-501, departure time as
0430 and also shows OK status. If the ticket is of Flight No.EK-501,
how the Petitioner brought on record the boarding pass of Flight
No.EK-505 that too also without name of passenger. This itself
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shows that the Petitioner manipulated the boarding pass just to
justify that they prepared the Panchanama immediately before 15
minutes of the departure time of Flight No.EK-505. On the basis of
these admitted facts on record, it is not possible to hold that the
Respondent No.1 has committed any offence in respect of
smuggling of the foreign currency of 40,000 US dollars.
49 In view of the above facts and circumstances, there is
no substance in the present Writ Petition and the same deserves to
be dismissed with costs. Accordingly, we dismiss the present Writ
Petition with costs. The Petitioner/Revenue is directed to pay a sum
of Rs.15,000/- (Rupees Fifteen Thousands only) each to the
Respondents Nos.1 and 2 towards costs of this petition, within a
period of four weeks from the date of receipt of a copy of this order.
This costs is imposed on the Petitioner because the Petitioner has
brought on record the bogus documents with intention to harass
the Respondents Nos.1 and 2. One of such document is boarding
pass of Flight No.EK-505. The Petitioner/Revenue is also directed to
refund the amount of 40,000 US dollars along with interest @ 9%
from the date of confiscation till its refund to the Respondent No.1,
within a period of four weeks from the date of receipt of a copy of
this order.
50 Accordingly, Writ Petition along with Civil Application
are dismissed.
(K.K.TATED, J.) (V.C.DAGA, J.)
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