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2015 (1) TMI 1100 - HC - CustomsSeizure of Indian currency concealed in clothings in the hand baggage - Seizure on the suspicion that it is the sale proceeds of smuggled gold sent from Malaysia and Singapore - violation of Regulation 3 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 - Held that:- Once it is found that the goods in question, namely Indian Currency are liable to confiscation under Section 113 and once it is found that a penalty in addition to confiscation is also possible under Section 114 of the Act, it may not be possible for this Court to order provisional release. After all, the petitioner is entitled to an opportunity in terms of Section 124 to show cause against confiscation. The adjudicating authority is obliged to give an option under Section 125 (1) of the Act, to pay fine in lieu of confiscation. The Respondents have a time limit of six months under Section 110(2) of the Act to initiate the proceedings. A period of three months has nearly expired. Therefore, at this stage, I do not wish to order the release of the Currency. This is for the simple reason that it may not be possible for the Respondents to even recover the fine, if ultimately the adjudication goes against the petitioner. Cash seized from the office premises of the petitioner in the second writ petition is on suspicion. Suspicion cannot take the place of proof, however, strong it may be. Therefore, refusing to order the provisional release of the cash seized from the premises of the petitioner in the second writ petition, may give a leverage or licence to the Respondents to stamp any item or cash seized from any office premises as the sale proceeds of smuggled goods. The scheme of Sections 113 read with Sections 121 to 124 do not appear to authorise such a course. As I have pointed out in para 17 above, two pre-conditions are to be satisfied for invoking Section 121 of the Act to order confiscation. There is no prima facie evidence to show that both these pre-conditions are satisfied in the second case on hand. The Constitutional guarantee with respect to the right to property under Article 300A cannot be allowed to be infringed at the drop of the hat, by allowing the officers to walk into any office and seize cash on the ground that they represent the sale proceeds of the smuggled goods. Therefore, I am of the view that the second writ petition deserves to be allowed. - Decided partly in favour of appellants.
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