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TMI Blog2013 (7) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... had been no allegation against the petitioner by the Tax Authority. 3. On 14-12-2012 when a consignment of medicines having No. 4884, dated 5-12-2012 along with other goods were being transported by M/s. National Roadways Corporation by their Vehicle No. AS-01-BC-5418, the said truck was detained abruptly at Chakmaghat under the Teliamura police station by the respondent No. 4. The said officer thereafter seized the consignment of "Indikof C Cough Syrup in six cartons containing 600 bottles on the purported ground of illegal attempt of export through a route other that prescribed under Section 7(c) of the Customs Act, 1962 and in violation of Sections 11C, 11E Ibid, read with Export Control Order No. 1/88 issued under Sections 3A(1), 3(2) and 4 of the Import Export (Control) Act, 1947, Foreign Trade (Dev. & Reg.) Act, 1992 and Section 12(1)/13(2) of Control Act, 1992 and Section 110 of the Customs Act, 1962 and in violation of the Customs Notification No. 31/2008-Cus. (N.T.), dated 2-4-2008 and the Customs Notification No. 31/2008-Cus. (N.T.), dated 25-3-2008. Grounds of the said seizure are available in the seizure list dated 14-12-2012 (Annexure-P/2 to the writ petition.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h business, there cannot be any presumption against him in the manner as has been drawn by the respondent customs authorities. If any breach of the license or the certificate of registration is complained of by any person or of the criminal activity under the garb of the said certificate and the license there must be specific incriminating materials in as much the legal character of the petitioner cannot be impeached by presumption. The presumption in this context has to be in favour of the petitioner not against her. 6. Mr. Majumder, learned counsel appearing for the petitioner has further contended that the legislature has categorically and consciously used the word "reasons to believe" in Section 110 of the Customs Act not the word "suspicion". There is distinction between the word "suspicion" and the word "reasons to believe". Suspicion may rise from a trifling circumstance, but the reasons to believe can only be gathered from the basis which is well founded. In the case in hand, there cannot be any reason to believe that the consignment was meant for illegal export to Bangladesh as alleged. As such the entire transaction leading to seizure and institution of the customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef which could be said to be reasonable and hence the condition precedent for the exercise of power under Section 110 of the Act was absent and the seizure on the basis of such belief cannot be said to be in accordance with law. 14. In this connection reference may also be made to a decision of a Bench of Bombay High Court in case of M.G. Abrol v. Amichand Vallamji, reported in A.I.R. 1961 Bombay 227 in which it has been held as follows :- "The Customs Officers should seize the goods covered by S. 178A in a reasonable belief that they are smuggled goods before the burden of proving that they are not smuggled goods could be on the person from whose possession such goods were seized. This position would be very much clear if it can be contrasted with a case where Customs Officer seizes any of such goods merely on suspicion that they are smuggled. A suspicion can arise from peculiar kind of movement on the part of the person who is supposed to be in possession of some smuggled goods. It may arise from the kind of dealing that the person might be having in regard to certain goods, which the Customs Officer might thereupon subject to be smuggled. One may conceive of a number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order was made. A person aggrieved by such action can question the satisfaction by showing that it was wholly based on irrelevant grounds and hence amounted to no satisfaction at all. In other words, the existence of the circumstances in question is open to judicial review." 9. While refuting the submissions of Mr. Majumder, learned counsel appearing for the petitioner, Mr. P. Datta, learned standing counsel appearing for the respondent Nos. 2, 3 and 4 has quite vehemently submitted that the writ petition itself is not maintainable for existence of the efficacious alternative remedy as provided under Section 124 of the Customs Act, 1962. It has been contended that before confiscation of the goods seized, a show cause notice is issued to the owner of the goods for having his response. He has further submitted that in the transit "drug formulations containing codeine or its salts" have been seized by the impugned order as that import was in violation of provisions of the Customs Notification No. 35/2008-Cus. (N.T.), dated 2-4-2008 and Notification No. 31/2008-Cus. (N.T.), dated 25-3-2008 read with the relevant provisions of the statute as referred in those notifications. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that Annexure-P/3, the invoice of the case is a fake document. Mr. Datta appearing for the respondent Nos. 1 to 4 has further contended that in terms of the provisions of Section 110 of the Customs Act, 1962 if there is reasonable belief that the goods are liable to be confiscated under Section 7C of the Customs Act for violation of the provisions of Section 11C, 11E, 11H to 11M, Section 135 of the Customs Act, 1962 read with Export Control Order No. 1/88, dated 30-3-1998 issued under Section 3(1), 3(2) and 4 of the Import Export (Control) Act, 1947, Trade, (DEV & REG) Act, 1992 and Section 12(1)/13(2) of the Control Act, 1992 and in violation of Customs Notification No. 35/2008-Cus. (N.T.), dated 2-4-2008 and Notification No. 31/2008-Cus. (N.T.), dated 25-3-2008 and the other related Act and Rules, the designated officer may search and seize for drawing up the proceedings as per the Customs Act. In the case, the Seizing Officer had reason to believe that goods namely Indikof-C Cough Syrup, 100 ml of 6 cartons (100 bottles in each carton) being total 600 bottles of drug formulations containing Codeine or its salts had been carried in for smuggling to Bangladesh and so such b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areas specified in India's land border with Bangladesh, falling within the territories of West Bengal, Tripura, Assam, Meghalaya and Mizoram. In terms of the notification dated 2-4-2008 the product as mentioned in the schedule is excerpted hereunder : "SCHEDULE Drug formulations containing Codeine or its salts." 11. The customs authority as it appears from the Annexure-H, the letter C. No. 11/CL/EXP/CPF/TLM/2012, dated 4-2-2013 has asked the manufacturer named and styled as M/s. Alkem Laboratories Limited, Alkem Pharma, Guwahati, C/o. Assam Tea Warehousing Corporation to clarify as regards the consignment description for sake of investigation. The summons was also issued under Section 108 of the Customs Act to the petitioner. 12. Mr. Majumder has candidly submitted that in the invoice a mistake has taken place. Instead of the drug licence number, the certificate of registration under the Tripura Sales Tax Act, 1976 has been incorporated by way of mistake by the manufacturer. He has produced the certificate of registration as issued under Tripura Sales Tax Act, 1976 and on examination it is found that the certificate of registration No. is SDR/ST/5888/2005 which can e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een prescribed by framing the rules as required under Section 11K(i) of the Customs Act, 1962. As a result, the said contention cannot cut through the challenge as projected by the petitioner. Ultimately, what Mr. Datta's submission which may be called as the second limb has projected is that the drugs were misbranded as the name of the drug was not properly labeled. Such misbranding is covered by Section 17 of the Drugs and Cosmetic Act, 1940 and Section 27(d) of the Drugs and Cosmetic Act, 1940. The said statute also provides the penalty for misbranding of drugs and Section 31 of the Drugs and Cosmetic Act, 1940 provides the authority to the Government to confiscate such misbranded drug. But no such provision is available in the Customs Act, 1962 and as such this Court has no hesitation to hold that the seizure on that ground even if that was not the assigned ground is liable to be declared as illegal in as much as the respondent No. 4 had no authority to cause such seizure on that ground. 16. The Apex Court even on taking a restricted view as regards the "reason to believe" in State of Gujarat v. Shri Mohanlal Jitamalji Porwal and another, reported in 1987 (29) E.L.T. 483 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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