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TMI Blog2025 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... a in the month of November 2023. Thereafter, once again, she travelled to India and landed at Chennai International Airport on 30.12.2023 at 03.30 pm along with her mother-in-law and sister-in-law with her children. As her husband had also come from France on 27.12.2023, to accompany her to France, they planned for pilgrimage too, to visit the various temples in Tamil Nadu, as it is our custom and tradition since she is newly married and yet to start her life in abroad during our visit in Tamil Nadu. 3. Further, he would submit that the petitioner along with her in-laws and 3 children, had landed at Chennai on 30.12.2023 at 03.30 pm and cleared the immigration formalities. The details of them are as follows: S.No Name Age Relation to petitioner 1 Thanushika 30 Petitioner 2 Arasi Inbamathi 60 Mother-in-law 3 Kirushalini 39 Sister-in-law 4 Abilin Reegan 8 Children of Sister-in-law 5 Akshara Reegan 6 6 Arush Reegan 4 4. While passing the customs, the customs officer/2nd respondent herein had checked their belongings and questioned about her gold bangles weighing about 45 grams and Thaalikodi weighing about 88 grams. When the enquiry was conducted, she repli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts only 5 hours of detention. 8. In spite of expressing the petitioner's genuineness and the purpose of coming to India, the respondents had neglected and refused to return their jewels. Since the petitioner has to live with her husband, if the jewels are not returned to her, her life will be in distress as the jewels are her thaali and shridanam, which are connected with the sentiments, tradition and culture. 9. Further, he would submit that the jewels, which are their personal property, are not subject to any irregularities and the same is not in violation of any law. The petitioner is also ready to undertake and expressed her willingness to abide by any condition laid down by the respondents. The details of the jewels are as follows: S.No Name of the person Age of the person Relation to petitioner Grams of gold detained from them Grams of gold as recorded by the respondent 1 Thanushika 30 Petitioner 140 166 2 Arasi Inbamathi 60 Mother-in-law 80 78 3 Kirushalini 39 Sister-in-law 44 44 4 Abilin Reegan 8 Children of Sister-in-law 24 (8 grams each) Nil 5 Akshara Reegan 6 6 Arush Reegan 4 Total 288 10. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were handed over by the petitioner for examination and quantification, whereby it was examined by a Government-approved Approver. Subsequently, the said jewellery being a non-bonafide baggage and the petitioner being a foreign national, was ineligible to bring gold jewellery into India either in her person or in her baggage, the same was seized under Section 110 of the Customs Act, 1962. 16. In a similar manner seizures of gold jewellery totally weighing 78 grams was effected from the possession of the petitioner's mother-in-law and gold jewellery totally weighing about 44 grams from the possession of petitioner's sister-in-law under separate Mahazar proceedings conducted on 30.12.2023. All the Mahazar proceedings were conducted in a peaceful manner without causing any inconvenience to the petitioner herein and by following due course of law. The sentiments of the petitioner herein were not hurt and the petitioner was explained the provisions of the Baggage Rules, 2016 as amended. Thereafter, the petitioner was made to understand that being a foreign national she was ineligible to carry gold either in her person or in her baggage and the same are liable for confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Baggage Rule will not apply since the same is beyond the scope of the Act. Hence, he would submit that the detaining of jewellery under the said Rule is contrary to the provisions of the Act and requests this Court to release the gold, which were seized by the 2nd respondent. 21. I have given conscious consideration to the submissions made by the learned counsel appearing for the petitioner and the learned Senior Standing counsel appearing for the respondents and also perused the materials available on record. 22. In the case on hand, the petitioner is a citizen of SriLanka, who travelled to Chennai on 30.12.2023 at 3.30 pm. When the search was conducted, it was found by the respondents that the petitioner and her family members have wearing jewels, which exceeds the limit prescribed in the Baggage Rules, 2016. The details of the jewels are as follows: S.No Name of the person Age of the person Relation to petitioner Grams of gold detained from the petitioner Grams of gold as recorded by the respondent 1 Thanushika 30 Petitioner 140 166 2 Arasi Inbamathi 60 Mother-in-law 80 78 3 Kirushalini 39 Sister-in-law 44 44 4 Abilin Reegan 8 Children of Sist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the "thaalikodi" during the wedding ceremony is often accompanied by prayers and blessings, making it a profoundly emotional moment for the couple and their families. d) Religious texts and practices highlight the "thaalikodi" as an integral part of the solah shringar (sixteen adornments) of a married woman, reinforcing its role as a symbol of auspiciousness and spiritual connection. e) The amount of gold used in a "thaalikodi" varies significantly based on cultural practices, personal preferences, and regional traditions. In South India, the gold content in the "thaalikodi" often ranges from 4 to 128 grams or more. The size and weight depend on the family's traditions and financial capacity. 24.3 In the present case, the 2nd respondent, being well aware of the sentiments of "thaalikodi", had asked the petitioner to remove the same. In this case, the petitioner worn "thaalikodi" weighing 88 grams, which is a reasonable weight that everyone wear. Further, it appears that the name of the petitioner's husband was inscribed in the "thaali". However, the 2nd respondent was unable to find out the difference between the reasonable weight and suspicious weight. Even if there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to immediately take me to Hospital. e) However, the Officials did not bother, but forced the petitioner and her in-laws to sign on some typed papers, in which it had been mentioned that the ornaments seized from us are not sentimental, but smuggled things. f) The said customs officer told that our jewels would be returned when we go back from India, having no other way, but listening the said officer, they agreed to sign the papers, moreover the 2nd respondent not even allowed us to read the paper. g) Seeing the conditions of the children, the petitioner begged, to allow us to exit, but the duty officer told that the officials who handled this matter had left to home and without her knowledge, they could not be allowed to exit. h) The then duty customs officer only allowed the petitioner and her in-laws and children to leave the Airport on the next day at 03.30 am. In the early morning, after 12 hours detention without mercy. i) In the Mahazar, the said officials has fraudulently mentioned that the petitioner and her in-laws were allowed to exit the Airport at 08.30 pm on the very same day itself. j) The petitioner had expressed that she has to live with her husband an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn up in the first person and be divided into paragraphs numbered consecutively. (5) The deponent of an affidavit shall be identified clearly with full name, parent's/spouse's name, age, profession or trade and the official or the residential address. (6) The affidavit shall clearly mention whether the statements made therein are based on personal knowledge, information or belief. Where a statement is based on oral information, the affidavit shall disclose the source of such information and where the information is based on records, the affidavit shall give sufficient particulars of such records." 29. Rule 24 of the Writ Rules deal with Counter Affidavits and the same reads as follows: "24. Counter affidavit (1) Provisions of these Rules applicable to affidavits shall apply mutatis mutandis to counter affidavits, reply affidavits and other affidavits. (2) Any respondent who intends to file a counter affidavit, shall, unless otherwise ordered, file it within eight weeks from the date of service on him of the notice or rule nisi provided the Court may extend the time or condone the delay for sufficient cause. (3) A counter affidavit and the documents in support of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the entire proceedings were conducted in disrespectful manner and the 2nd respondent-Officer/S.Mythilli and her associates have removed the "thaalikodi" from the neck of the petitioner, when she refused to remove the same. Further, the Mahazar was prepared with false averments as if the goods were smuggled and got in the sleeves of the petitioner, which is contrary to the above admitted facts. 34. Further, the counter filed by the respondents varies from the confiscation order on the aspect of the manner, as to how the jewellery was carried by the petitioner. In the confiscation proceedings, it has been recorded as follows: i) At paragraph No.1 of the confiscation order dated 24.04.2024, it has been stated that "upon search of her person, 2 yellow coloured metal bangles and 3 yellow coloured metal chains were found worn on her hand concealed in her full sleeves also found worn." ii) At paragraph No.3 of the confiscation order, it has been stated that "during the search of her baggage, nothing was found. Thereafter, upon search of her person, 3 nos of yellow coloured metal chains and 2 nos of yellow colour metal bangles were found from her sleeves of shirt and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be admitted by them. 39. Further, it appears that the petitioner has also given a letter dated 22.01.2024 to the Joint Commissioner of Customs, narrating the entire facts and requested for release of goods, however, the same was not considered. In the said letter, it has clearly been stated that in the "Thaalikodi" (mangalsutra), the name of the petitioner's husband (Jayakanth) has been inscribed. 40. Apart from the illegalities, such as, detaining the petitioner and her relatives, seizure of gold from them and preparation of Mahazar with false information, it is also necessary to deal with the aspect of jurisdiction of the Officers to frame charges against the petitioners based on the Baggage Rules, 2016. In this regard, an order of this Court rendered in CMA.No.1716 of 2020 has been referred by the learned Senior Standing counsel for the respondent. In the said judgment, the Hon'ble Division Bench of this Court has framed an issue as to whether the jewelery worn on the person would constitute "Baggage". 41 The Division Bench had answered the issue by plain reading of the Baggage Rules, 2016 and arrived at a conclusion that in terms of Rule 3 of the Baggage Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal value of all such articles does not exceed such limits as may be specified in the rules. (2) The Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may specify- (a) the minimum period for which any article has been used by a passenger or a member of the crew for the purpose of clause (a) of sub-section (1); (b) the maximum value of any individual article and the maximum total value of all the articles which may be passed free of duty under clause (b) of sub-section (1); (c) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty. (3) Different rules may be made under sub-section (2) for different classes of persons. 45. A reading of the above provisions would show that the proper officer may subject to any Rules made under Sub-Section (2), if any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules. 46. Thus, it states that for any article in the baggage of a passenger in respect of which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panied Baggage of the passenger: Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. ii) Definition of Baggage under the Customs Act, 1962: "(2)(3) - "Baggage" includes unaccompanied Baggage but does not include motor vehicles; " 49. As discussed by the Hon'ble Division Bench in the CMA referred supra, a reading of the above definition of "baggage" under Customs Act, 1962, and Baggage Rules, 2016, makes it clear that the definition of "baggage" under the Baggage Rules is wider than the definition of "baggage" under the Customs Act. Further, in the Rule it has been stated as follows: "3. Passenger arriving from countries other than Nepal, Bhutan or Myanmar.-An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, - (a) used personal effects and travel souvenirs; and (b) art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament take a decision and amend the provisions of the Act. Till then, the Officers have to apply their minds with regard to detaining the passenger and the gold worn by them as the same would not fall within the purview of the Baggage Rules, 2016. 55. The Doctrine of ultra vires states that the Rule making body must function within the purview of the Rule making authority conferred on it by the parent Act. As the body of making rules or regulations, there is no inherent power of its own to make rules, but such power arise only from the Statute and hence, it must necessarily function within the purview of the Statute. 56. In the present case, the Rule making body had made the Baggage Rules as if they are having inherent power of its own to make rules beyond the scope of the Statutes, and they have incorporated the word "carried on the person" as referred above. 57. The ultra vires may arise in several ways such as :- a) there may be a simple excess of power over what is conferred by the parent Act; b) the delegated legislation may be inconsistent with the provisions of the parent Act; c) there may be non-complaince with the procedural requirement as laid down in the parent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goes beyond what the Act contemplates or is in conflict thereof, the rule must yield to the Act. It is emphasised that Section 80 of the Act confers discretion on the officer within whose command the accused person is serving the choice between criminal court and the Security Force Court without any rider, whereas Rule 41 of the Rules specifies grounds for exercise of discretion. Accordingly, it is submitted that this Rule must yield to Section 80 of the Act. We do not find any substance in this submission. 61. In the judgment of the Hon'ble Apex Court rendered in State of Tamil Nadu and Another vs. P.Krishnamurthy and others reported in (2006) 4 SCC 517, it has been held as follows: 16. The court considering the validity of a subordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- confo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land. They must be "reasonably related to the purposes of the enabling legislation". See Leila Mourning v. Family Publications Service [411 US 356]. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorized end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires": per Lord Russel of Killowen, C.J. in Kruse v. Johnson (1898) 2 QB 91." 20. In St. Johns Teachers Training Institute vs. Regional Director, NCTE [2003 (3) SCC 321], this Court explained the scope and purpose of delegated legislation thus : "A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confiscation order that the petitioner has waived the show cause notice. 65. That apart, it was stated that though 3 opportunities of personal hearing were provided to the petitioner on 04.04.2024, 08.04.2024 and 12.04.2024, no one has appeared before the respondents and under these circumstances, the confiscation order came to be passed on 24.04.2024. However, this Court is of the view that since the petitioner is a SriLankan citizen, the shorter time provided by the respondent is not sufficient. In such case, it is clear that the confiscation order was passed purely in violation of principles of natural justice and hence, the same is liable to be quashed. 66. Therefore, the confiscation order dated 24.04.2024 is hereby quashed for the following reasons: i) The confiscation order was passed without issuing the show cause notice; ii) No proper opportunity of personal hearing was provided to the petitioner prior to the passing of confiscation order; iii) Since the Mahazar was prepared with false information to foist a false case against the petitioner, the confiscation order was also passed, as an ex parte order, based on the false information available in the said Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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