2023 (7) TMI 1135 - HC - Customs

Maintainability of petition - availability of alternative remedy - Seizure of Vehicle by the Customs - it is apprehension that the vehicle may be used as a means of transport of smuggled goods - Smuggling of Gold - HELD THAT - The principle of availability of alternative remedies is only a rule of discretion. Considering the admitted facts and the legal issue raised, this Court is of the opinion that the jurisdiction under Article 226 can be exercised in the present case to bring a quietus to the dispute raised, instead of relegating the petitioner to the remedy of adjudication under section 122 of the Act - Section 106 of the Act confers power upon the Department to stop and search vehicles if it is being or is about to be used in the smuggling of any goods or in the carriage of any smuggled goods. The power to search is distinct from the power to seize. On a reading of section 106 of the Act, it is evident that power is conferred upon the officers to search a vehicle if they suspect that the vehicle is involved in smuggling or other offences under the Act. Significantly, the said power to search does not confer a right to seize the vehicle on suspicion. Undoubtedly, section 115(1) has no application in the present case. Section 115(2) of the Act renders a vehicle liable for confiscation if it was used as a means of transport in the smuggling of goods or in the carriage of any smuggled goods - The admitted case of the Department is that the smuggled goods had never found a place inside the car, nor had the person carrying the smuggled goods entered the car, either in the past or in the present. The Department alleges that two persons came to collect the smuggled goods at the Airport and that they were intercepted even before the gold was collected by them. The said circumstance only indicates a possible future use of the car as a means of transport of the smuggled goods. If a possible future use of a vehicle as a means of transport for smuggling goods confers a power of confiscation of such a vehicle, that power will be unbridled, absolute and unregulated. The discretion to seize or not to seize a vehicle for apprehended future use as a means of transport of smuggled goods will confer an unregulated discretion devoid of any clarity for its exercise - the power of confiscation under section 115(2) of the Act can arise only if the vehicle was actually used or is being used for smuggling goods and not for apprehended use or future use. Hence a vehicle cannot be seized by customs on an apprehension that it may be used in future as a means of transporting smuggled goods. The seizure of the vehicle bearing registration No. KL-52-R-9498 owned by the petitioner is illegal and the respondent shall release the vehicle to the petitioner immediately - Petition allowed.

Summary

Issues Involved:
- Can a vehicle be seized by Customs based on an apprehension of potential future use in smuggling activities?

Summary:
The petitioner, owner of a motor car seized by Customs, filed a writ petition seeking release of the vehicle, claiming it was not used for smuggling. Customs intercepted the vehicle at the airport where smuggled gold was to be collected, but no gold was found in the car at that time. The Department argued that the vehicle's detention was essential to identify smuggling modus operandi. The Court considered the legality of the seizure under Customs Act provisions.

The Court noted that the power to search a vehicle under section 106 of the Act does not confer a right to seize based on suspicion alone. Seizure under section 110(1) is allowed only if goods are liable for confiscation. Section 115 deals with confiscation of conveyances, including vehicles, used in smuggling. However, the Court interpreted that confiscation can only occur if the vehicle was actually or presently being used for smuggling, not based on apprehended future use.

Strictly construing penal provisions, the Court held that the power of confiscation cannot be based on potential future use alone, as it would grant unregulated discretion to authorities and violate constitutional principles. Therefore, the seizure of the petitioner's vehicle was deemed illegal, and Customs was directed to release it immediately.

This judgment clarifies that Customs cannot seize a vehicle based solely on an apprehension of potential future use in smuggling activities, emphasizing the need for actual or present use for confiscation under the law.