Mohammad Zaid Salim v. The Commissioner of Customs (Airport & General)

1. The petitioner is invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for a direction to the respondent to release his gold chain in terms of Section 110(2) of the Customs Act, as amended upto date[1], which was seized/detained by the customs officers on 18 October

2017.

FACTUAL BACKGROUND

2. The facts of this case lie in a narrow compass. In a nutshell, the petitioner, who is an Indian passport holder arrived from Malaysia at Indira Gandhi International Airport, New Delhi[2] on 18 October 2017. He was intercepted by the Customs Officers while crossing through The Act IGI Airport the „Customs Green Channel‟ and was diverted for examination. He states that his baggage contained nothing illegal except that he was wearing a gold chain around his neck weighing about 100 grams, which was seized/detained vide detention receipt No. 48986 dated 18 October 2017 on the assumption that the same was imported by him from Malaysia. It is stated that the gold chain was his personal ornament which he wore before leaving for Malaysia. Raising a grievance that his gold chain was unlawfully seized, he sent three communications to the Commissioner of Customs, IGI Airport vide letters dated 27 June 2018; 05 December 2018 and 12 February 2018 bringing to his attention that he had not been issued any Show Cause Notice under Section 124(a) of the Act, and thus, the gold chain was liable to be released to him in terms of Section 110(2) of the Act. As his requests were not responded to by the respondents, this Writ Petition came to be filed praying for the following reliefs: “(i) To issue a writ of mandamus order direction thereby directing the Respondent to unconditionally release the Gold chain of the Petitioner which was seized/ detained by the Customs officers on 18.10.2017 belonging to the petitioner.

(ii) To pass such other or further order/s which this Hon'ble Court may deem fit and proper in the interest of justice.”

3. Notice was issued to the respondent and a short affidavit of Mr. Ashok Kumar Dahiya, Assistant Commissioner (Legal) dated 29 August 2019 has been filed wherein inter alia it is deposed that the petitioner was issued a notice dated 19 February 2018 to obtain release of the detained goods from the office of the answering respondent on payment of necessary duty but the same was not replied to; and consequently the gold chain was inventorized and after it was appraised by the Jewellery Appraiser and the gold item was deposited with the Government Mint at Mumbai on 26 June 2018 for conversion into standard gold and for further sale to the State Bank of India, Mumbai as per the standard procedure. Incidentally, the said aspect was brought to the notice of this Court on 27 May, 2019 and on directions the record was produced on 24 July 2019.

4. It is further asserted in the affidavit that no declaration was made by the petitioner before leaving from India that he was carrying any gold item on his person, and therefore, there was no question of issuance of a Show Cause Notice as it was not a case of seizure under Section 110 of the Act. It was lastly stated that the gold chain was rather concealed in the baggage of the petitioner. It is pointed out that the mechanism for temporary detention of baggage is provided by Section 80 of the Act and as per the Baggage Rules framed under Section 81 of the Act. Clause 13.[1] falling in Chapter 26 of the Custom Manual, 2013 provides as under:- "13. Detained Baggage:

13.1. There may be occasions when the passenger is not in a position to clear his baggage for any reason e.g. inability to pay the Customs duty demanded. In such a situation, the passenger may request the Customs to detain his baggage either for re-export at the time of his departure from India or for clearance subsequently on payment of duty. The detained baggage would be examined and its full details inventorised before being taken in the custody of Customs."

ANALYSIS AND REASONS FOR DECISION

5. Having heard the learned counsels for the parties and on perusal of the record, we have no hesitation in holding that the respondent has dealt with the entire matter patently in an arbitrary, unjust and illegal manner. Although, this Court in W.P. (C) 8902/2021 titled Nidhi Kapoor v. Principal Commissioner and Additional Secretary to the Government of India & Ors. has already laid down the proposition of law that gold is a „restricted item‟ and if the importation of gold is in the nature of smuggling within the meaning of Section 2(39) of the Act, the adjudicating authority can exercise the discretion under Section 125 of the Act to absolutely confiscate the gold items and levy not only duty but also impose fine/penalty apart from declining to redeem/release the goods. However, decision in the aforesaid case decided by this Court does not come in the way of the petitioner for grant of appropriate relief in law since, firstly, it is evident that the respondent has not followed the procedure prescribed in the Act.

6. In arriving at that conclusion, we may refer to Section 110 and Section 124 of the Act, which provide as under: