TMI Blog2015 (1) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the second writ petition No.22700 of 2014 seeking a mandamus to direct the Respondents to return the amount of ₹ 7,00,000/-. 6. Since both the matters are interconnected, in the sense that the seizure of Indian Currency from the office premises of the Travel Agency was allegedly on the basis of the statement made by the passenger, I took both writ petitions together for hearing and disposal. 7. I have heard Mr.A.K.Jayaraj, learned counsel for the petitioner and Mr.Velayutham Pichaiah, learned Senior Counsel for Department of Revenue Intelligence. 8. The Respondents have filed counter affidavit in both the writ petitions. The contention of the Respondents is that on 04.9.2014, the Officers of Directorate of Revenue Intelligence seized cut-pieces of gold bars weighing 795 grams and valued at ₹ 24,51,780/- from two passengers by name Madhu Sreekanth Reddy and Niasuddin Anwar, who arrived from Singapore and Malaysia respectively. According to the Respondents, the gold bars had been brought by those two passengers concealed in Tile Polishing Machines. Those passengers, according to the Respondents, confessed to the fact that the machine was handed over to them by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents claim that under Section 121 of the Customs Act 1962, the sale proceeds of any goods smuggled into India are also liable to confiscation. The Respondents further claim that under Section 110 of the Customs Act, the Respondents have a time limit of six months from the date of seizure to complete the investigation and issue of show cause notice. Therefore, they claim that the petitioners in both the writ petitions may have to wait for adjudication. The goods seized being Currency notes, cannot be ordered to be provisionally released, according to the Respondents. 12. I have carefully considered the above submissions. Though the genesis of both the cases on hand could be traced to a common act, both the cases have to be decided on different parameters, at least legally. Therefore, I shall take up the case of Shivakumar first. W.P.No.22355 of 2014: 13. In this case there is no dispute about the fact that the petitioner was intercepted at the Airport while attempting to board the Flight to Singapore and Indian Currency to the tune of ₹ 40,40,000/- was seized. The fact that the money was recovered from him and the fact that his act was in violation of Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalties under the Act. The procedure for such adjudication is prescribed in Section 122-A of the Act. Section 124 mandates the issue of a show cause notice before confiscation. Section 125 of the Act empowers the adjudicating authority to give an option to the person from whom the goods are sought to be confiscated, to pay fine in lieu of confiscation. The proviso to Sub-section (1) of Section 125 of the Act states that the fine shall not exceed the market price of the goods confiscated less the Duty chargeable in the case of imported goods. Section 125(1) of the Act is applicable to both importation and exportation. Section 125 reads as follows:- SECTION 125. Option to pay fine in lieu of confiscation. (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, we are of the view prima facie that before adjudication, in exercise of writ jurisdiction on the facts of this case, the High Court ought not to have granted unconditional release of the cash. In fact, we called upon the learned counsel for the respondent to give a bank guarantee. The respondent is not in a position to give a bank guarantee for the amount which he had already withdrawn. 21. In S.Faisal Khan v. Joint Commissioner [2010 (259) E.L.T. 541 (Mad.)], this Court held that Indian Currency attempted to be exported illegally is liable for absolute confiscation. Therefore, if goods are liable for absolute confiscation, it is not possible to order their release. 22. Mr.A.K.Jayaraj, learned counsel for the petitioner relied upon the decision of the Supreme Court in Vinod Solanki v. Union of India [2009 (233) E.L.T. 157 (SC)]. But the said case arose out of a penalty imposed in an adjudication under Section 51 of the Foreign Exchange (Import and Export of Currency) Regulation Act, 1973. The case did not concern the scope of the provisions of the Customs Act. 23. In Century Knitters (India) Ltd. v. Union of India [2013 (293) E.L.T. 504 (P H)], a Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unaccounted Indian Currency of ₹ 7,00,000/-. According to the Respondents, this money represents the sale proceeds of the gold smuggled into India by persons engaged by the travel agency. Therefore, according to the Respondents, this amount is also liable for confiscation and cannot be released even provisionally. 27. But, this case stands on a slightly different footing than the first case. In the first case, there are two sets of allegations made against the petitioner Mr.J.Shivakumar. The first relates to his attempt to take out of India, Indian Currency notes exceeding ₹ 25,000/-, in violation of Regulation 3 of the Foreign Exchange Management (Export and Import of Currency) Regulations 2000. The second is that the money represented sale proceeds of smuggled goods. 28. Insofar as the second writ petition is concerned, the currency notes were not seized at the Airport. They were seized only at the office premises of the writ petitioner. Therefore, there is no allegation against the petitioner in the second writ petition about the violation of the Foreign Exchange Management (Export and Import of Currency) Regulations 2000. The only allegation against the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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