1992 (9) TMI 105 - HC - Customs

Summary

Issues Involved:
1. Constitutional validity of the proviso to Section 124 of the Customs Act, 1962.
2. Alleged violation of Articles 14, 21, and 300A of the Constitution of India.
3. Procedural fairness and guidelines for invoking the proviso.
4. Discretionary power and potential for arbitrary application.
5. Waiver of fundamental rights.

Detailed Analysis:

1. Constitutional Validity of the Proviso to Section 124 of the Customs Act, 1962:
The primary issue addressed in the judgment is the constitutional validity of the proviso to Section 124 of the Customs Act, 1962. The petitioner argued that the proviso, which allows for oral notice and representation at the request of the person concerned, is unconstitutional. The court, however, upheld the validity of the proviso, stating that it is clear and unambiguous, and serves to benefit the person affected by expediting the adjudication process.

2. Alleged Violation of Articles 14, 21, and 300A of the Constitution of India:
- Article 14 (Equality before Law): The petitioner contended that the proviso introduces two kinds of procedures without any intelligible differentia, thus violating Article 14. The court rejected this argument, stating that the proviso creates a reasonable classification by allowing an exception for those who request an oral notice and representation, which does not defeat the object of the main section.
- Article 21 (Protection of Life and Personal Liberty): It was argued that the proviso prescribes an unreasonable procedure affecting life and liberty. The court found no merit in this contention, emphasizing that the right to a fair hearing and opportunity to make a representation is preserved, whether the notice is oral or written.
- Article 300A (Right to Property): The petitioner claimed that the proviso enables deprivation of property without due process. The court dismissed this argument, stating that the procedural safeguards of Section 124, including the proviso, ensure compliance with the principles of natural justice.

3. Procedural Fairness and Guidelines for Invoking the Proviso:
The petitioner argued that the proviso is vague and lacks guidelines for its invocation, potentially leading to arbitrary application. The court disagreed, stating that the proviso's language is clear and does not require additional guidelines. The proviso applies universally to all cases where confiscation or penalty is proposed, provided the person concerned requests it.

4. Discretionary Power and Potential for Arbitrary Application:
Concerns were raised about the discretionary power conferred by the proviso, allowing officials to choose between oral and written notices. The court clarified that the discretion is not unbridled, as the proviso can only be invoked upon the request of the person concerned. Thus, the authorities do not have the liberty to arbitrarily decide the mode of notice and representation.

5. Waiver of Fundamental Rights:
The petitioner argued that the proviso allows individuals to waive their fundamental rights, which is impermissible. The court refuted this, stating that opting for an oral notice does not equate to waiving the right to a notice; rather, it is a choice of the mode of communication. The court cited precedents to support that fundamental rights cannot be waived, but clarified that the proviso does not infringe upon this principle.

Conclusion:
The court dismissed the writ petition, upholding the constitutional validity of the proviso to Section 124 of the Customs Act, 1962. The petitioner was advised to appeal against the impugned order of confiscation and penalty, with the court directing the Additional Standing Counsel for the Central Government to ensure the appeal is disposed of within twelve weeks from the date of filing. The judgment comprehensively addressed each contention raised by the petitioner, affirming that the proviso aligns with constitutional mandates and procedural fairness.