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TMI Blog2021 (12) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the petition having been issued to the respondent, the response thereto has been submitted on behalf of the Customs Authority opposing the prayer made by the petitioner with it having been submitted on behalf of the respondent at the outset that the application itself filed before the learned CMM, New Delhi seeking release of the passport was not maintainable in as much as the passport had not been directed to be impounded at any stage. As per the averments that have been made in the petition and the factum that the petitioner was released on bail vide order dated 25.09.2021 by the learned MM in view of the factum that the market value of goods involved was less than Rs. 1 crore with the offence thus being bailable, the same had not been refuted on behalf of the Customs Authority, the applicant was thus released on bail pursuant to order dated 25.09.2021 of the learned trial Court on submission of the bail bond and surety bond after he had been incarcerated initially for non-production of the surety bond. It has been submitted on behalf of the petitioner placing reliance on the verdict of the Hon'ble Supreme Court in Suresh Nanda Vs. Central Bureau of Investigation (2008) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by or under the authority of the Government of a foreign country satisfying the conditions prescribed under the Passport (Entry into India) Act, 1920 and the 'travel document' in terms of clause b of the Explanation to Section 3 includes travel documents having been issued by or under the authority of the Government of a foreign country satisfying the conditions prescribed. It has thus been submitted on behalf of the petitioner that the petitioner is thus entitled to the release of his passport. On behalf of the respondent, the learned SPP for the Customs submits to the effect that vide order dated 17.11.2021 in C No.VIII(AP)10/P&I/3258-A/Arrival/2021, the adjudication proceedings having since been culminated, absolute confiscation of the seized goods i.e. one gold chain weighing 1065.10 grms valued at Rs. 45,80,271/- recovered from the possession of the petitioner has been ordered by the Additional Commissioner of Customs apart from the imposition of a penalty of Rs. 7 lacs (Rs. Seven Lakhs) on the passenger i.e. the petitioner herein under Sections 112(a), 112(b) and Section 114AA of the Customs Act, 1962. Inter alia it has been submitted on behalf of the respondent tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in personam and taking into account the prevailing circumstances in Afghanistan and thereby the chances of the petitioner coming back to India were very bleak, it was observed that the Court found no ground to release the passport of the petitioner and permit the petitioner to leave the country without depositing the penalty of Rs. 13 lacs. On behalf of the petitioner herein, learned counsel for the petitioner submits that the adjudication proceedings in the instant case against the petitioner as culminated vide order dated 17.11.2021 have not yet attained finality in terms of Section 128 of the Customs Act, 1962, as in terms of Section 128(a) of the Customs Act, 1962 itself, the period in which an appeal may be filed is a period of 60 days from the date of communication of the decision of the competent authority which period has not yet elapsed. Inter alia on behalf of the petitioner it has been submitted placing reliance on the provision of Section 129E of the Customs Act, 1962 to the effect that in terms thereof, an appeal can be filed only on the deposit of 7.5% of the duty in case the duty and penalty are in dispute and that the petitioner would comply with all conditions tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on the verdict in Ruhullah Amin (Supra), reliance is also sought to be placed on the verdict of this Court in Air Customs Vs. Farhad Hussain Eidi Zada in Crl.M.C.926/2021, a verdict dated 11.05.2021 whereby an order dated 04.03.2021 of the learned CMM, New Delhi allowing the respondent to deposit cash in lieu of FDR on permission being granted to the respondent to that petition to visit abroad for a period of a year and the order dated 02.03.2021 of the learned CMM, New Delhi were set aside observing to the effect that keeping in view the nature and gravity of the allegations, it was not the case where permission to go abroad should be granted in as much as the respondent therein was a native of Afghanistan, there was possibility that he would abscond and fail to return to India and that the investigation in that case was still underway at the time of the order dated 11.05.2021 and the charge sheet was yet to be filed and that if the petitioner was allowed to leave the country, the same would hamper the further investigation of the case and filing of the charge sheet. Reliance was also placed on behalf of the respondent on the verdict dated 04.03.2021 in Crl.M.C.728/2021 in Ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ruhullah Amin (Supra), the facts of that case too are not in pari materia with the instant case in view of specific reliance on observations in para 9 thereof, which read to the effect: "Considering that the adjudication proceedings qua the petitioner have attained finality and the petitioner even does not wish to redeem the articles, is required to deposit the penalty amount, hence this Court finds no error in the impugned judgment." It is essential to observe that that petition had been filed challenging the condition imposed by the learned CMM granting permission to that petitioner to travel to Afghanistan subject to terms and conditions as imposed thereby and vide observations in para 6 thereof, it was observed to the effect that the Court finds no ground to release the passport of the petitioner and permit the petitioner to leave the country without depositing the penalty of Rs. 13 lacs. The submission made in the instant case on behalf of the petitioner is to the effect that without prejudice to the rights and contention that the petitioner may raise in the appeal under Section 129E of the Customs Act, 1962, the petitioner is willing to deposit the entire penalty amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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