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TMI Blog2012 (2) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus/96 dated 22.01.1996 and 37/96 dated 23.07.1996 issued under section 11 of the Act read with section 3 (11) of the Foreign Trade (Development and Regulation) Act, 1962 as well as the provisions of Customs Tariff Act, 1975. 2. The claim of the petitioner is that the impugned order was shown to have been made on 07.06.2011 at 18.00 hrs. although the trucks and their drivers were detained on 06.06.2011 itself while the drivers had parked their trucks at the Petrol Pump for taking tea, but the said trucks and drivers were produced before the Magistrate on 09.06.2011. Learned counsel for the petitioner stated that this practice has been severely deprecated by a Division Bench of this court in case of Rajjan Lal Sri Lal Man v. The Union of India through Commissioner of Customs & Ors., reported in 2011 (4) PLJR 635. 3. Learned counsel for the petitioner also submitted that in the pleadings and the orders of the respondents no „reason to believe' has been spelt out nor any material was admittedly available with them at the time of seizure. Hence their being neither any material nor any „reason to believe‟ there was no occasion for the authorities to make the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2004(4) PLJR 675. 6. With respect to the statements of drivers in detention are concerned, it was stated by learned counsel for the petitioner that in the instant case the drivers were detained on 06.06.2011 and their arrest was recorded on 07.06.2011, but they were produced before the Magistrate on 09.06.2011. Hence, learned counsel for the petitioner claimed that the alleged confessional statement made under section 108 of the Act is not legal and proper. In this connection, he relied upon a decision of the Supreme Court in case of Noor Aga v. State of Punjab and another, reported in (2008) 16 Supreme Court Cases 417 and also a decision of Bombay High Court in case of Ashak Hussain Allah Detha alias Siddique and another v. Assistant Collector of Customs (P), Bombay and another, reported in 1990 Crl. L. J. 2201. 7. I.A. No.8361 of 2011 has also been filed by the petitioner annexing show-cause notice under section 124 of the Act issued during the pendency of this writ case by the Assistant Commissioner Customs (P) Division, Muzaffarpur dated 18.11.2011 (Annexure-1 thereof) and challenging the same vide amendment in paragraph-1 of the writ petition by way of adding the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner etc. and on enquiry the driver revealed that the said betel nuts were loaded on the trucks at Kaliaganj near Indo- Nepal Border and on demand of papers of betel nuts the driver could not produce any documents. In this connection learned counsel for the respondents relied upon a decision of a Bench of this court in case of Bikaner-Assam Road lines India Limited & Ors. v. Union of India & ors., reported in 2000 (1) PLJR 135. 12. Hence he claimed that there is no occasion to quash the entire process as articles can be released on production of security specially when a proceeding under section 108 of the Act is a judicial proceeding, but in spite of that the petitioner never complied the impugned summons although the petitioner was bound to comply the same. In this connection learned counsel for the respondents relied upon a decision of the Apex Court in case of Union of India v. Lexux Exports Pvt. Ltd. and another, reported in (1997) 10 Supreme Court Cases 232. 13. After hearing learned counsel for the parties and considering the materials on record it is quite apparent that the trucks in question along with the betel nuts and drivers were detained on 06.06.2011 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9834068017 and CST RC No.19834068211 registered under the West Bengal Value Added Tax Act, 2003 and it was a wholesaler dealing in reselling and processing of betel nuts. Hence, merely because the drivers could not produce the agreements between the consignor and the consignee the authorities were not justified in seizing the articles without waiting for reply of the petitioner. In the said circumstances and in view of the documents produced by the drivers including certificates, invoices, challans and builty etc. the action of the authorities concerned cannot be held to be sustainable in law. 16. In this connection reference may be made to a decision of the Apex Court in case of Indian Nut Products and others vs. Union of India and others, reported in (1994) 4 Supreme Court Cases 269 in which it was held that if a statute requires an authority to exercise power, when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned in the statute. The grounds must be made out on the basis of the relevant material. If the existence of the conditions required for the exercise of the power is challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere suspicion. It may be based upon some definite information acquired from a reliable source that a certain person is in possession of smuggled goods. The belief again, as required by S. 178A of the Sea Customs Act, must be a reasonable one, not a belief of a man who just catches at some slight circumstances which only creates a sort of guess or speculation in his mind that something might exist or might not exist. The belief must be such as any other reasonable man in the circumstances of the case would entertain about the existence or non-existence of a thing." 19. From the aforesaid well settled principles of law, it is quite apparent that so far the point of time at which reasonable belief should exist is concerned, whenever the goods are seized, the officer seizing the goods must at the time of seizure have a reasonable belief that the goods he was seizing were smuggled goods and any subsequent acquisition of knowledge of such belief would be of no avail. So far the allegation that betel nuts in question were of foreign origin is concerned, a Division Bench of this court in case of Commissioner, Custom Department, Government of India, Patna v. Dwarika Prasad Agarwal & Ors., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely to the consignee. The petitioner had also produced vouchers and registers along with the Income Tax Return of the consignee of both the trucks, namely M/s M.L. International, whereas there is nothing to show that any firm named as "Salasar Traders" was consignee of one truck as claimed by the respondents and has anything to do with the instant matter. In the said circumstances petitioner is the main aggrieved person and clearly has the locus to file this writ petition. 23. Considering the facts and the materials in entirety, this court has no option but to come to the conclusion that the impugned order of detention and seizure of betel nuts and the trucks on which it was loaded are illegal, arbitrary and perverse. Furthermore, the impugned confiscation notice dated 18.11.2011 issued under section 124 of the Act during the pendency of this writ petition is based merely on the aforesaid seizure, which has already been held to be illegal, arbitrary and perverse and hence when the base, namely the seizure goes every structure thereon including the confiscation notice also will have to follow. A confiscation proceeding arising from a seizure held to be illegal cannot be sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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