Mohammad Arif v. Commissioner of Customs

1. The hearing has been done through hybrid mode.

2. The resent petition has been filed by the Petitioner under Article 226 of the Constitution of India, inter alia, seeking release of the gold kada of the Petitioner, weighing 31 grams seized by the Customs Department vide Detention Receipt bearing no. DR/INDEL4/23-04-2024/004256 dated 23rd April, 2024. The said gold kada is described in the detention receipt as ‘One Yellow Metal Rod Having Weight 31 gms.’

3. The case of the Petitioner is that he was travelling from Saudi Arabia to Delhi on 23rd April, 2024. Upon arrival at the Indira Gandhi International Airport, New Delhi, the Petitioner was intercepted by the concerned official of the Customs Department and the gold kada of the Petitioner was seized. According to ld. Counsel for the Petitioner, no Show Cause Notice (hereinafter, ‘SCN’) has been issued to the Petitioner and hence, release is sought in terms of the decision in Union of India &Anr. v. Jatin Ahuja, Civil Appeal No. 3489/2024

4. On the last date of hearing i.e., 26th November, 2025, this Court directed the Customs Department to produce the gold kada of the Petitioner before the Court. The same has been produced today in a sealed box.

5. The Court has perused the seized gold kada which has been produced today and the same is clearly not personal jewellery of the Petitioner. It is a raw gold piece bent in the form of a kada.

6. However, since there is no Show Cause Notice (hereinafter, ‘SCN’) issued to the Petitioner in this matter, in terms of Union of India & Anr. v. Jatin Ahuja (Supra) the detention would no longer be tenable.

7. It is the settled position in law, after Union of India & Anr. v. Jatin Ahuja (Supra) that without a SCN under Section 110 of the Customs Act, 1962, the goods of the Petitioner would be liable to be released. The relevant observation in Union of India & Anr. v. Jatin Ahuja (Supra) stated as under:

18. The Delhi High Court has done well to explain that this is so because Section 110A, is by way of an interim order, enabling release of goods like fast moving or perishable etc. The existence of such power does not, in any way, impede or limit the operation of the mandatory provision of Section 110(2).

19. In the case in hand, indisputably the car was seized under sub-section (1) and furthermore no notice in respect of the goods seized was given under clause (a) of section 124 of the said Act within six months of the seizure. The consequence, therefore, in such a case is that the goods shall be returned to the person from whose possession they were seized. The first proviso to sub-section (2) of section 110 of the said Act, however, provides that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend the six months' period by a period not exceeding six months and inform the person from whom such goods were seized before the expiry of the period so specified. The proviso therefore contemplates that the period of six months mentioned in sub-section (2) of section 110 of the said Act can be extended by the higher authority for a further period not exceeding six months, for reasons to be recorded in writing. The proviso also requires the higher authority to inform this to the person from whom such goods were seized before the expiry of the period of six months mentioned in sub-section (2) of section

110. We find that in respect of the seized car, there is neither any notice under clause (a) of section 124 issued to the respondent within six months of the seizure nor the period of six months ever came to be extended for a further period of six months. In the absence of there being any notice as required by the first proviso even within the extended period upto one year, the consequence that ought to follow is release of the seized car. [...]

24. The appeals before us are all anterior in time to the coming into force of the second proviso to Section 110(2) of the Act, 1962. Although, it is not necessary for us to say anything further, yet we may clarify that the time period to issue notice under Clause (a) of Section 124 is prescribed only in sub-section (2) of Section 110 of the Act, 1962. This time period has nothing to do ultimately with the issuance of showcause notice under Section 124 of the Act, 1962. The two provisions are distinct and they operate in a different field.”

8. In view thereof, in terms of the judgment in Jatin Ahuja (Supra), it is a settled position of law that once the goods are detained, it is mandatory to issue a SCN and afford a hearing to the Petitioner. The time prescribed under Section 110 of The Customs Act, 1962, is a period of six months and subject to complying with the formalities, a further extension for a period of six months can be taken by the Customs Department for issuing the SCN. In this case, the one year period itself has elapsed, thus no SCN can be issued. The detention is therefore impermissible and the detained articles of the Petitioner are directed to be released to the Petitioner.

9. The Petitioner shall appear before the Customs Department on 8th January, 2026 in person or through an Authorised Representative, in which case, a proper email from the Petitioner or some form of communication to be sent to the Customs Department that the Petitioner has authorised the concerned Authorised Representative to appear on behalf of the Petitioner. The Petitioner shall join virtually for verification of identity.

10. The gold kada of the Petitioner shall be released by the Customs Department subject to payment of applicable Customs Duty and warehousing charges as applicable on the date of detention.