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TMI Blog2021 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... s fair in love and war. Attainment of victory was more important than observing the niceties of the game. 2.But, a constitutionally governed democratic State which is committed to upholding the rule of law shall not adopt unfair methods when prosecuting citizens and non-citizens alike. And if the executive wing does, judiciary shall not wink. I must, with a sense of moral unease, acknowledge that there exists an exception to this lofty principle. An illegally procured evidence may still be admissible provided it is relevant. Just as an accused in a criminal case is entitled to fair trial, a noticee is entitled to fair adjudication and enquiry. This is implicit in Article 14 as well as Article 21 of the Constitution of India. It can be taken as axiomatic and an uncontestable proposition. What are the contours of this right ?. While it is not necessary to exhaustively delineate its scope, there can be no doubt that the noticee is entitled to copies of documents in official custody if they have a bearing on the defence. Denial of access to such documents may result in prejudice to the noticee in properly defending his or her case. 3.The question that arises for consideration in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when they were about to exit the green channel. The allegations regarding ill-treatment and coercion have been denied. It is further stated that the complaint lodged by the petitioners before the National Human Rights Commission was closed. Likewise, the criminal complaint lodged before the local police against the DRI officials was also closed. The department had already initiated adjudication proceedings. The petitioners will be given full opportunity to take part and contest the allegations made against them. When the proceedings are pending, the petitioners have prematurely moved this Court for relief. The writ petitions are clearly not maintainable. 6.Since the standing counsel raised a technical objection that when the adjudication proceedings are still pending, it may not be open to the writ court to grant the relief sought for, I directed the competent authority to take up the enquiry on 17.03.2021 and pass final orders on or before 24.03.2021. The counsel for the petitioner offered to extend his fullest cooperation. He was ready to conduct the crossexamination of the witnesses through video conferencing. He even served the questionnaire in advance. This specific directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners have attempted to import prohibited goods. On the other hand, the stand is that the petitioners tried to exit the green channel without making a declaration. This is because, even in the Travellers Guide issued by Central Board of Indirect Taxes and Customs, the following is the answer given to the question "Who can import gold as a baggage?" : "Ans.Any passenger of Indian Origin or a passenger holding a valid passport, issued under the Passport Act, 1967, coming to India after a period of not less than six months of stay abroad. However, short visits during these six months shall be ignored if the total duration of such short visits does not exceed 30 days and the passenger has not availed of the exemption under this scheme, at the time of such short visits. Except for these passenger, no other passengers are allowed to import gold in Baggage. Conditions: (i) The duty shall be paid in convertible foreign currency (ii) Concessional rate of duty @ 12.5% + Social Welfare Surcharge @ 1.25% is applicable for gold to Indian Passport holders and persons of Indian origin if stays is for more than 6 months. Short visits up to a total of 30 days during the six months shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptured in the CCTV installed in the airport premises. The petitioners would pointedly allege that even before they could cross the Door Frame Metal Detector (DFMD), they were taken into custody by the DRI officials. On 07.11.2019 itself, the petitioners invoking the provisions of the RTI Act sought from the airport authorities copies of the CCTV footage. The petitioners' request was declined. Thereafter, the petitioners wrote to the Additional Director General of DRI that if the CCTV footage is seen and verified, the stand of the petitioners will be borne out. 10.The exact spot of interception is highly relevant and material. It was authoritatively laid down in K.R.Ahmed Shah vs. Additional Collector of Customs, Madras & Others (1981 E.L.T 153 (Mad.), that goods could not be deemed to be imported the moment an air craft lands in one of the airports in India. Importation can be said to have taken place only when the goods have crossed the customs barrier. The Hon'ble Judge followed the earlier Division Bench decision rendered in WA No.84 of 1968. 11.The Supreme Court in the decision reported in 2017 (16) SCC 93 (Directorate of Revenue Intelligence vs. Pushpa Lekhumal Tol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to continue for the purpose of determining their guilt. In view of my finding that the petitioners' defence has been prejudiced because of the non-production of CCTV footage, the adjudication proceedings initiated against them can be allowed to continue only for the limited purpose of determining whether the goods in question can be allowed to be re-exported or whether they can be cleared on payment of applicable duties. Such an order will be passed by the concerned authority within a period of four weeks from the date of receipt of copy of this order. The authority will hear the petitioners or their authorised representative through Video Conferencing or in person before passing final orders. 14.The petitioners claim that their passports have not been returned. The stand of DRI is that they never seized the petitioners' passports. There is no point in probing the issue. The petitioners were issued with passports and their period of validity has not expired. The only criminal case registered against the petitioners is at the FIR stage. It is well settled that pendency of a criminal case at FIR stage is not a ground for denying the issuance of passport or renew ..... X X X X Extracts X X X X X X X X Extracts X X X X
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