TMI Blog1973 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner No. 2, Mahabir Pd. Jain, is one of the partners in the aforesaid firm and petitioner No. 3, Parmeshwar Singh, is one of the employees of petitioner No. 1. For the purposes of carrying on its business and despatch of silver from Nalbari to Calcutta, either by means of car or any other vehicles, a general power of attorney and affidavit dated the 28th of July 1972 at Nalbari has been executed by petitioner No. 1 in favour of petitioner No. 3 which the latter carries along with himself whenever he moves with the articles of the firm to Calcutta or any other place. 2.On the 15th of June, 1973 certain old silver ornaments, Thakkas and silver coins were decided to be sent to Calcutta on an ambassador car, bearing registration no. WMA 2521 from Nalbari to Calcutta, the distance between the two places being about 900 miles. Having so decided, on the 16th of June, 1973, petitioner no. 1, issued a challan in the name of petitioner no. 3 for the carriage of the articles mentioned therein. The challan was signed by one Ghisalal Jain, accountant of petitioner No. 1 and also by Parmeshwar Singh, petitioner no. 3 in whose custody the said articles were put for being carried to Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner no. 3 stated that he had not got so much money in his possession, he was asked to inform his principals to manage the same. Petitioner no. 3 sent telegram to his principals from Forebesganj on the 18th of June informing about the detention of the silver goods as also of the refusal of the authorities to grant any seizure list. He further telegraphed that he hoped that the goods would be released by the 19th. A copy of the telegram has been annexed to the writ petition and it has been marked as annexure '5'. 3.The further case of the petitioners is that petitioner no. 3 put in a lightning telephone call from Forebesganj telephone no. 16 intimating the Gauhati Branch Office of Petitioner no. 1 about the intention of the Customs authorities, but the principals did not agree to the illegal demand of the Customs authorities, inasmuch as, according to them they had not violated any law whatsoever and therefore they could not be penalised in this fashion. On the 19th of June, 1973 at about 9.30 P.M. petitioner No. 3 disclosed to the Customs authorities the talks which he had with the principals and thereafter petitioner no. 3 was removed out of the office room and the Khalasi Satya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods be returned to the petitioners. 4.Since the allegations made in the petition were grave concerning mal-practices on the part of the customs authorities, respondent No. 1 filed an affidavit in reply to the petition at the stage of the admission of the case itself. According to this affidavit, importation of silver and silver coins from foreign countries into India was prohibited by law. Respondent no. 1 had secret prior information that petitioner no. 3 and Staya Deo Mahto were in Birat Nagar in the territory of Nepal purchasing silver and silver coins. They had further information that petitioner no. 3 along with Satya Deo Mahto were likely to smuggle silver and silver coins of Indian origin from Nepal into India through Galgalia border. Due to this information a checking party went towards Kishanganj and kept constant watch on the border areas and similarly other officers kept watch on the other border areas. According to respondent no. 1 whosoever would try to pass through Indian territory by road from Galgalia check post, was bound to come to Rampur. When the car in question was seen at some distance from Rampur check post on the 17th of June, 1973, signal was given to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t surreptitiously mentioning the date of receipt as the 20th of June, 1973. Another inventory for the detention of the Car WMA 2521 was prepared on the 19th of June, 1973 and its copy was given to the driver Mahendra Chandra Tallukdar on the same day. The receipt of the same was acknowledged on the 19th of June, 1973. Respondent no. 1 has further stated that the challan dated the 16th of June, 1973 which accompanied the silver goods is a fictitious document created by the other side in order to avoid detection by Customs authorities or any other authority. The challan did not bear any serial number and it did not tally with the weight of goods recovered. The challan shows, upon calculation, that 18405 tolas of silver equivalent to 214.595 Kilograms were despatched, but the actual weight was found to be 224.910 K.Gs. According to respondent no. 1, this proves beyond doubt that the goods detected and seized were not the goods described in the challan and the goods so seized were smuggled goods. Respondent no. 1 has categorically denied the allegations relating to any threat having been given to petitioner no. 3 or his companions of arrest, assaults or abuse or of refusal to grant rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t different posts where alerted. It is further stated that with this prior information, the respondents knew that after crossing into India the smugglers were bound to come to Rampur. The deponent has been stated that when car No. WMA 2521 was seen at some distance from Rampur check post, proceeding at its maximum speed towards Calcutta, it was signalled to halt by the checking squad. This was at about 2 P.M. on the 17th of June, 1973. The car however, did not stop and proceeded towards the check post. It is then stated, which statement is an improvement upon the first affidavit, that the Customs authorities chased the car on a jeep and succeeded in intercepting it before it reached the check post and stopped it. Parmeshwar Singh petitioner No. 3, began to give evasive reply whereupon, it is stated. "...the members of the checking squad (respondent nos. 1 to 5) got reasonable suspicion that there must have been contraband goods in the car. Outward inspection of the car indicated that something was kept hidden beneath the sent of the car and the suspicion was confirmed." None of the petitioner produced any permit for importation nor gave any evidence that the goods were not smug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationship with petitioner no. 1 on the 17th of June, 1973 the car started early morning for its onward journey with one more passenger added, namely, Ajoy Kumar Banik son of the proprietor of the aforesaid M/s. Keshavlal Banik. (He is a student of B.A. Class in Tinsukhiya College and was to go to Rai Ganj). On this day at 7.10 A.M. the car passed through Patlakhowa check post and reached Rampur at about 2.30 P.M. where the car was, apprehended. The petitioners have further seated in their petition that petrol was filled in into the car on the 16th of June, 1973 which was evident from the cash memo issued by Bilas Rai Mangtu Rai and Co. of Nalbari (vide Annexure 4). There was breakdown of the car on the 16th of June, 1973 at Kokrajhar in the State of Assam and the car had to be repaired which is evidenced by the bill issued by Singh Motor Works (vide Annexure 4/1). As stated earlier, while starting from Nalbari a challan had been issued covering the goods which were being carried by the car. This challan was issued on the 16th of June, 1973 and was countersigned by petitioner No. 3 was not at Biratnagar on the dates alleged by the respondents and that the silver goods had been loade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwini Kumar Sinha, Standing Counsel for Union of India appearing for the respondents, submitted that the seizure had been properly made because the respondents had reason to believe that the goods were liable to confiscation. He further submitted that since alternative remedy was available to the petitioner which had nor been exhausted, the writ petition ought not to be maintained. He stated that inquiry under section 122 of the Customs Act having already started and the petitioners having been asked to show cause, whatever grievance they had in respect of the seizure could be ventilated in the adjudication proceeding itself. In any event, Mr. Sinha submitted that by reason of the following circumstances the respondents had reasons to believe at the time of the seizure of the goods that these goods were liable to confiscation : (a) the large quantity of silver that was being carried in the car, (b) the manner in which the goods had been kept concealed in the car, (c) the speeding up of the car even when asked by the customs authorities to stop, (d) the evasive reply given by petitioner no. 3 when interrogated by the respondents, and (e) the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily look to the facts and surrounding circumstances of the case to arrive at its conclusion. Thus, for example, in the aforesaid decision their Lordships felt that a person carrying a large quantity of Gold and found travelling on railways without a ticket may well have raised a belief in the mind of the officer that the Gold was smuggled. And yet in the case of M.G. Abrol and Another v. Amichand Vallamji and Others (AIR 1961 Bombay 227) Shah J. (as he then was) speaking for the Court, held that the Customs authorities did not have reasonable belief while seizing the goods that the goods were liable to confiscation, even when one of the employees of the business firm was observed running hurriedly straight to the places where the goods were melted at Bombay Bullion Refinery at Zaveri Bazar without waiting at the counter where the Gold is weighed and is taken over by the officials of the Refinery before melting and further that 152 tolas of gold was found to be in possession of that employee at that time. Again in the case of Bapalal Khushaldas Gosalia (already referred to above) Shelat G., J. (as he then was) held, in spite of the fact that the gold bullion seized had forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without a valid permit are brought into the country without such permit, the customs authorities have a right to confiscate such goods. The step prior to confiscation, is seizure of such goods, where goods are to be seized by the customs authorities, section 110 of the Act enjoins, that the authority must have reason to believe that the goods were liable to confiscation under the Act. Such belief is a condition precedent to the seizure. In the case of M.G. Abrol (referred to above), which was a case under the Sea Customs Act, one of the questions in issue was as to the point of time when reasonable belief, as required under section 178A of that Act, should exist. It was held that :- "……there is one and only one construction possible of this section, so far as the point of time at which the reasonable belief should exist in regard to the seizure of any smuggled goods is concerned and the construction is that where-ever the goods are seized, the officer seizing the goods must at the time of seizure have a reasonable belief in his mind that the goods that he was seizing were smuggled goods. Any subsequent acquisition of such belief would be of no avail..." Although this decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further that the actual weight of silver found in the car exceeded the weight of silver as mentioned in the challan. The question, as I have posed above, is whether these facts would prima facie inculcate a reasonable belief in the mind of the respondents at the time when they seized the goods that the goods were liable to confiscation. Reasonable belief is not a mere suspicion or a mere subjective satisfaction. It is something more than that. It is a belief which a prudent man on applying his mind judicially to the facts will arrive at. 13.In the instant case as per the affidavit filed on behalf of the respondents, there was prior information of silver being purchased at Biratnagar in the territory of Nepal by one Parmeshwar Singh, and Satyadeo Mahto or Sattu. There was also information that the said two persons were likely to cross into India at Galgalia, or near about it. They apprehended a car which was proceeding on the National Highway No. 31 towards Calcutta coming from Kishanganj side, and at least 47 kms. away from Galgalia. Obviously, therefore, the secret information was not the cause for stopping this particular car; or at least when the car was stopped the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challan was not in respect of the goods in the car. That being so, the fakeness or genuineness of the challan will have no bearing on the nature of the goods in the car. In other words, till this time i.e., till the time when the respondents made outwards inspection of the car and also examined the challan, they had no reasonable belief about the goods in the car being liable to seizure and confiscation. 15.Notwithstanding the above position, the respondents took into their custody the silver articles which were in the car WMA 2521 by getting it transferred into their jeep. Thereafter for full two days the respondents did not hand over any receipt for the seizure, either concerning the goods or the car WMA 2521, but all the same carried the goods and the car from place to place. If the respondents had reason to believe that the goods were liable to seizure under section 110 and for confiscation under section 111 of the Customs Act, 1962, as has been stated by them in paragraph 4(F) of the second counter-affidavit, they should have seized the car and the goods immediately as they apprehended the car near Rampur. They did not do so. They have, however, explained this delay thus : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither the secret information nor the bulk of the silver goods nor the challan nor any of the other factors gave them the reasonable belief as required under section 110 of the Customs Act, at the time when they say they got the reason to believe and seized the goods. This conclusion also gets support from these further facts. The respondents called upon each of the occupants of the car to make statement before them. The statements in original have been produced before this Court. Looking to the statement of the driver, Mahendra Chandra Talukdar. I find that the last sentence, which is the most vital sentence in his statement supporting the case of the respondents, has been interpolated into the statement and I cannot think of any reason except that by interpolating this sentence the respondents have tried to make out a case of reasonable belief to seize the silver goods. That sentence translated into English means - "That the silver which I loaded in my car at Galgalia had been brought from Bhadrapur by Parmeshwar Banu and Satyadeo". No part of the earlier statement made by him give any indication that the silver had been smuggled from Nepal or had been loaded at Galgalia. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners' car into their jeep. On the facts and circumstances, which I have discussed above, obviously, when the silver goods were transferred from WMA to the jeep, the respondents did so only under suspicion. They did not have reasons to believe at that time that the goods which were transferred into their jeep were liable to confiscation under section 111 of the Customs Act, and when they handed over the seizure list to the petitioners, seizing the silver goods and the car, has been interpolated. I have already referred to the decision of the Bombay case in M.G. Abrol and Another's case in which it has been held - "That reasonable belief must exist in the mind of the officer seizing the goods at the time of the seizure itself. Subsequent acquisition of such belief could be of no avail". In the instant case if transfer of the goods from the petitioners' car to the jeep is taken as the seizure of the goods, clearly the respondents did not have the reasonable belief at that time that the goods which they were transferring into their jeep was liable to confiscation and when they handed over the seizure list to the petitioners, they had no further materials before them. Even at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 319). 2.It was contended before us by Mr. A.K. Sen, learned Counsel for the petitioners that in the circumstances of the case, it was not possible to accept the case of the respondents that they had received secret information about purchase of silver and silver coins by Satyadeo and Parmeshwar in Nepal. According to that secret information, the silver and silver coins purchased by the aforesaid two persons were to be taken into India at Galgalia. There is a road which connects Galgalia to Kishanganj. Persons who have to go to northern part of West Bengal or Assam have to take a turn towards east at Kishanganj. Those who have to go to Calcutta or other parts of India have to take a turn towards west. Rampur where the silver and silver coins were seized by the custom authorities is towards west of Kishanganj. Respondents, therefore, are not correct in saying that any one coming from Nepal for going to various parts of India must pass through Rampur. Had the custom authorities found and checked the vehicle somewhere between Galgalia and Kishanganj, there could be no doubt that the vehicle was coming from the border of Nepal. Since no checking was done between Galgalia and Kishangan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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