Iqbal Ahmad Khan v. Collector of Customs and Ors.

1. Iqbal Ahmad Khan, resident of Meerut City, U.P. and a citizen of India, invokes writ jurisdiction of this Court with a prayer that the respondent No.1 i.e. Collector of Customs, New Delhi should restore and restitute the revolver imported by him.

2. In December, 1984, the petitioner visited Singapore and had purchased a revolver (make: Smith and Wesson) and a double barrel gun. He obtained a letter dated 24th December, 1984 from the High Commission of India at Singapore that arms could be imported into India under the Baggage Rules, if they were covered by a valid arm possession licence. 2013:DHC:4295-DB

3. On the petitioner’s return to India from Singapore, the revolver and the double barrel gun were detained under detention certificate dated 8th January, 1985. The double barrel gun was subsequently released to the petitioner on 30th July, 1985 and we are not concerned with the said release. However, the revolver was not released and it transpires that the same was sold on 18th August, 1986. As noticed above, the petitioner has prayed for restoration and restitution of the said revolver. The present writ petition was filed on or about 20th April, 1995 i.e. after more than 10 years of the said import and nearly 9 years after sale of the revolver by the Custom authorities.

4. On being questioned, learned counsel for the petitioner submitted that the petitioner was informed about the sale of revolver for the first time vide letter dated 23rd January, 1994 and, therefore, the present writ petition should not be dismissed for delay and latches.

5. We have considered the contention but in view of the facts narrated below, we feel that the present writ petition cannot be allowed in view of the extraordinary delay and latches in approaching the Court. On merits also, the petitioner should not succeed.

6. The detention certificate dated 8th January, 1985 records that the petitioner as per his arm’s licence had acquired another revolver on 4th April, 1979, which was sold on 14th December, 1984. As per the Baggage Rules applicable a non-tourist passenger was allowed to import as a part of his baggage without import licence but on payment of customs duty, a fire-arm, subject to the condition that the passenger should not have imported or otherwise acquired a foreign made arm of the same category during the last 10 years. Explanation thereto stipulated that revolver and pistol were considered to be of one category of fire arm and gun and rifle fire-arm of another category. A reading of the said explanation elucidates the reason why the double barrel gun was released and why the revolver could not be released after the import and detention vide detention receipt dated 8th January,

1985. As noticed above, the double barrel gun was released on 30th July, 1985.

7. There is no correspondence by the petitioner from 8th January, 1985 till 19th December, 1990, when a letter was written by the petitioner to the Minister, Ministry of Finance, Department of Customs. This was followed by letter dated 28th November, 1991, which was written to the Collector of Customs, New Delhi. The petitioner had stated that delivery of the revolver was refused to him without any reason or show cause notice. No order was passed indicating as to why the petitioner’s rightful possession was appropriated by the customs authorities. This contention of the petitioner is clearly incorrect as the detention receipt categorically spells out the reasons for such detention. The detention certificate was issued and available to petitioner. It is apparent that the petitioner was well aware of the fact that he had purchased a revolver in the said category, which was sold on 14th December, 1984. He was to satisfy that he was entitled to import the revolver under the baggage rules.

8. Interestingly, in his letter dated 19th December, 1990 written to the Minister, the petitioner had stated that he made several visits to the Customs Department before the gun was released on 30th July, 1985, but delivery of revolver was refused on the ground that its licence was not older than 10 years and, therefore, he was not entitled to import the revolver. This clearly indicates that he was informed that he could not have imported the revolver within 10 years in case he had imported a revolver or had acquired same category foreign fire arm in last 10 years.

9. Assistant Collector (Custom Policy) vide letter dated 26th September, 1991, informed the petitioner that he should send a clear copy of the detention receipt to the said office in view of his letter dated 19th December, 1990 addressed to the Minister. Thereafter, the petitioner wrote letter dated 27th December, 1993 i.e. after more than two years reiterating the earlier facts. In this letter he has categorically referred to the remark on the detention receipt to the following effect:- “Pax had acquired a revolver on 4.4.79 which was sold on 14.12.84 as per Possession Dup. Licence No.202/P.S. Railway Road, Meerut.

10. This again indicates that the petitioner was aware and conscious of the problem as to reason why the revolver had not been released. The petitioner was informed vide letter dated 4th February, 1994, that they had looked into the records and the revolver in question was detained by the detention certificate as there was violation of the Baggage Rules. The petitioner had failed to furnish proof that the earlier revolver purchased by him was of Indian origin. The petitioner should have produced the same while seeking clearance of the gun or even subsequently. In these circumstances, the revolver was sold after more than one year of detention, on 18th August, 1986.

11. Learned counsel for the petitioner has submitted that no show cause notice was issued before sale of the revolver. Our attention has been drawn to Section 150 of the Customs Act, 1962. In this regard, we would like to state that the revolver in question was sold under Section 48 of the Customs Act, 1962 and the Custom authorities in their letter dated 4th February, 1994 had rightly drawn attention of the petitioner to Instruction No.6 of the detention receipt to the effect that “if the goods are not cleared within two months of the detention or any period extended by the competent authority, action to dispose of goods under relevant provisions of the Customs Act, 1962 would be initiated”. Section 48 of the Customs Act is clearly applicable as the imported item, i.e. the revolver, is an arm defined under the Arms Act,

1959. Even with the writ petition we note that the petitioner has not filed any document or proof to show that the earlier revolver held/owned by him was of Indian make and origin.

12. In view of the aforesaid position, we do not find any merit in the present writ petition and the same is dismissed. However, there will be no order as to costs.

SANJIV KHANNA, J. SANJEEV SACHDEVA, J. AUGUST 30, 2013 NA