2017 (2) TMI 874 - HC - Customs

Gold - seizure of gold by the Department in the year 1990 - in the meantime the proceedings took place, the petitioner and his associates were convicted and sentenced to three years rigorous imprisonment for having smuggled gold of foreign origin, gold was confiscated - By this writ petition, petitioner wants to know as to what happened to his gold. Held that - The simple answer is that there is no gold left. The gold has vested in the Government which order has attained finality. On raising of objection by the petitioner that the gold was not of foreign origin, in my opinion, whether gold was of foreign marking or not, whether it was being legitimately brought in India or not, are all questions of facts which are sub-judice in Criminal Appeal as filed by the petitioner. It will be open to the petitioner to move the said criminal court for whatever relief he wants in respect thereof either to discredit or impeach the prosecution evidence. Petition dismissed - decided against petitioner.

Summary

Issues:
1. Seizure of gold by Customs Department in 1990.
2. Proceedings for penalty and confiscation initiated by Custom Authorities.
3. Criminal case against the petitioner and associates.
4. Appeal process and finality of orders.
5. Status of the gold seized.
6. Allegations of gold being brought in legitimately.
7. Prejudice caused by melting of gold.
8. Jurisdiction of the criminal court.
9. Dismissal of the writ petition.

Analysis:

1. The Customs Department seized gold in 1990 from two individuals alleged to be employees of the petitioner on suspicion of smuggling foreign gold into India.

2. Two proceedings ensued: one for penalty and confiscation under the Customs Act, resulting in an ex parte confiscation order, and a criminal case against the petitioner and associates.

3. The petitioner learned about the proceedings during the criminal trial before a Judicial Magistrate and subsequently filed appeals. However, the appeals were dismissed, leading to the confiscation of the gold and imposition of a penalty.

4. The criminal trial resulted in the conviction of the petitioner and associates in 2011, with an ongoing appeal in the court of the 1st Additional Sessions Judge.

5. The petitioner, through a writ petition, sought information on the status of the seized gold, which has been confirmed to have vested in the Government due to final orders.

6. The petitioner contended that the seized gold was brought in legitimately with proper permits and was not of foreign origin, challenging the events leading to the confiscation.

7. The gold was deposited in the Government mint, melted, and the petitioner expressed concerns about prejudice due to the loss of evidence against the foreign marking allegations.

8. The court emphasized that the determination of whether the gold was of foreign origin or legitimately imported is a question of fact under the jurisdiction of the criminal court handling the appeal, cautioning against interference in the ongoing criminal proceedings.

9. Consequently, the court dismissed the writ petition, stating that it lacks merit and refraining from intervening in the criminal court's jurisdiction over the factual aspects of the case.