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WRIT PETITION (CIVIL) NO. 6990/2012
Date of Decision: 22nd October, 2013 VIRSA SINGH..... Petitioner
Through Mr. S.S. Arora & Mr. D.S. Chadha, Advocates.
Through Mr. Mukesh Anand, Advocate for UOI.
Mr. Satish Aggarwala & Mr. Amish Aggarwala, Advocates for respondent No. 3.
HON'BLE MR. JUSTICE SANJEEV SACHDEVA SANJIV KHANNA, J. (ORAL):
We have heard the counsel for the petitioner, who submits that the adjudication order in original dated 16th December, 1996 passed by the Deputy Commissioner of Customs, IGI Airport, New Delhi was not served on the petitioner. He submits that the petitioner subsequently on 30th May, 2009 obtained copy of the said order and, therefore, the appeal filed was not belated or barred by limitation. He submits that copy of the adjudication order in original should have been served at
2013:DHC:5407-DB least on the counsel for the petitioner. It is stated that the adjudication order in original should have been sent to the address of the petitioner at Germany.
JUDGMENT
2. In the writ petition the prayer made is that the respondents should release the gold seized from the petitioner upon payment of duty as applicable at that time and the respondents should compensate the petitioner for the loss suffered due to illegal confiscation of gold. In the amended writ petition, orders passed by the Government of India and the Commissioner (Appeals) and the adjudicating authority in original confiscating the gold have also been challenged.
3. Nine Kilograms of gold was seized from the petitioner on 27th August, 1994 at the Indra Gandhi International Airport after he arrived from Frankfurt. Four Kilograms of gold was kept in the belt worn by the petitioner and five Kilograms of gold was kept in a kangaroo pouch worn by the petitioner under his shirt. The value of the gold at that time in the international market was Rs.33,93,000/-. Panchnama was drawn and the petitioner was arrested on 27th August, 1994. Subsequently, the petitioner was released on bail by the Additional Chief Metropolitan Magistrate on 3rd March, 1995. Show cause notice dated 9th November, 1994 for adjudication proceedings was duly served on him while he was in jail. This is accepted and admitted position. The petitioner, however, disputes that he had received or was aware of the adjudication order dated 16th December, 1996 passed pursuant to the show cause notice. It is submitted that the petitioner came to know and became aware of the said adjudication order only in 2009 and thereafter had obtained copy of the same and had preferred appeal before Commissioner (Appeals), which was dismissed on the ground of delay and laches.
4. The appellate order passed by Commissioner (Appeals) dated 17th August, 2009 records that the order in original/adjudication order dated 16th December, 1996 was sent to the petitioner at his last known address vide dispatch entry No.11177 dated 23rd December, 1996 but the said letter was returned with the remarks that the addressee had left for Germany. Thereafter, the order in original was displayed on the notice board vide dispatch entry No. 11183 dated 23rd December, 1996. Under Section 153 of the Customs Act, 1962 clause (a) any order or decision passed is required to be served by tendering it or by sending it by registered post to the person for whom it is intended. Sub-clause (b) stipulates that when the order/decision cannot be served in the manner provided in sub-clause (a), the said order/decision can be served by affixing it on the notice board in the customs house. The said procedure has been followed.
5. The petitioner after being detained under the Customs Act, 1962 also suffered a detention order under COFEPOSA Act on 21st October,
1994. Subsequently, he was granted parole. Thereafter, the petitioner absconded and was declared a proclaimed offender on 29th January,
1999. He did not appear in the criminal proceedings initiated under Sections 132 and 135 of the Customs Act, 1962. We may record that subsequently the petitioner filed an application dated 31st March, 2011 under Section 265B of the Code of Criminal Procedure, 1973 and pleaded guilty. The customs authorities objected to the said application on the ground that plea bargain provisions were not applicable to the prosecution in question. The said application was dismissed. On 9th February, 2012, the Metropolitan Magistrate convicted the petitioner under Section 132 and 135(1)(a) of the Customs Act, 1962 but was sentenced to undergo imprisonment for the period already undergone. Customs authorities thereupon filed a writ petition and the same was allowed. The petitioner challenged the order in the writ petition by way of Special Leave to Appeal but has not been successful.
6. As per the adjudication order in original, direction was made for absolute confiscation of 9 Kilograms of gold and penalty of Rs.[8] lacs was imposed. The adjudication order was sent to the address of the petitioner at Punjab but the same could not be served as the petitioner was absconding. The petitioner cannot and should not be allowed to take advantage of his own wrong, as he was absconding and deliberately did not appear before the courts/authorities. Once show cause notice was issued and served on the petitioner, as accepted, he was aware about the adjudication proceedings. The plea taken by the petitioner that he came to know about the adjudication order only in 2009 is fallacious, wrong and cannot be accepted.
7. Looked from any angle, there is no merit in the present writ petition and the same is dismissed.
SANJIV KHANNA, J. SANJEEV SACHDEVA, J. OCTOBER 22, 2013 VKR