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2024 (7) TMI 698 - HC - CustomsLiability and responsibility of customs department in created hurdles in getting hurdle in issuing Exit Permit to the petitioner - Petitioner was acquitted on merit - Smuggling - baggage rules - gold - prohibited/contraband item - Section 135 (1) (i) of the Customs Act, 1962 - HELD THAT - It is apparent from the record that conduct of the respondent No. 2 is not only wrongful and vindictive but it amounts to gross abuse of its powers in restricting the petitioner to leave for her country without any justification. It has been rightly argued by the learned Counsel for the petitioner that conduct of the respondent No. 2 is reprehensible and unbecoming of a responsible officer/s of the Customs Department. The prosecution does not say that the petitioner had violated conditions of VISA. The petitioner, who is a lady, having left her country way back in 2019 with two children behind should not have been troubled and harassed by the Customs Department as it is apparent from the record - This is a fit case in which this Court would invoke it s powers under Section 482 of the Cr. P.C for doing complete justice. The power under Section 482 of the Cr. P.C is to be exercised ex debitio justitiae to prevent abuse of Court. It should not, however, be exercised to stifle legitimate prosecution. The power has to be exercised very sparingly and with circumspection, that too, in the rarest of rare cases. The whole purpose is to advance justice and not to frustrate it - There is sufficient evidence on record bearing on the conduct of the respondent No. 2 justifying some remarks which is necessary for the decision of the case as an integral part thereof to animadvert that conduct. In case of ANWAR VERSUS THE STATE OF J. AND K. 1970 (7) TMI 83 - SUPREME COURT , it was held that the rights under Articles 20, 21 and 22 are available not only to citizens but also to persons which would include non-citizens . Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Article 22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Article 3, Article 7 and Article 9 of the Universal Declaration of Human Rights, 1948. Apart from the right of the petitioner to get Exit Permit within two weeks from the date of passing of this order, she needs to be adequately compensated for the mental agony, trauma and sufferings undergone by her due to the conduct of the respondent No. 2. Respondent No. 2 Union of India shall pay an amount of Rs. 10,00,000/- to the petitioner. Petition allowed.
Issues Involved:
1. Legality of the interception and search conducted by Customs officials. 2. Validity of the charges under Sections 135 (1) (a) and 135 (1) (b) of the Customs Act, 1962. 3. Acquittal by the Additional Chief Metropolitan Magistrate and subsequent appeal by the Customs Department. 4. Issuance of Exit Permit for the petitioner. 5. Conduct of the Customs Department in handling the case. Detailed Analysis: 1. Legality of the Interception and Search Conducted by Customs Officials: The petitioner, a Chinese national, was intercepted at CSMI Airport, Mumbai after her flight was diverted from Delhi due to bad weather. Customs officials, acting on specific information, intercepted her and found her in possession of ten yellow metal bars weighing 1 kg each, purported to be gold, valued at Rs. 3,38,83,200/-. The search and seizure were conducted following due procedure, and the petitioner was arrested and booked under Sections 135 (1) (a) and 135 (1) (b) of the Customs Act, 1962. 2. Validity of the Charges under Sections 135 (1) (a) and 135 (1) (b) of the Customs Act, 1962: The petitioner was charged with smuggling gold into India. However, the Additional Chief Metropolitan Magistrate observed that the petitioner had a further flight from Delhi to Hong Kong on the same day, and there was no intelligence received about her traveling to Mumbai. The prosecution failed to prove beyond reasonable doubt that the petitioner contravened the provisions of the Customs Act. The court noted inconsistencies in the recording of the petitioner's statement and the lack of clarity in her intention to bring gold into India. 3. Acquittal by the Additional Chief Metropolitan Magistrate and Subsequent Appeal by the Customs Department: The petitioner was acquitted by the Additional Chief Metropolitan Magistrate on 10th October, 2023, and the judgment was based on merits. The Customs Department's appeal against the acquittal was dismissed by the Additional Sessions Judge on 2nd February, 2024, citing that the appeal was not maintainable without prior approval of the Chief Commissioner/Principal Chief Commissioner or DGRI/Principal DGRI as mandated by Circular No. 27/2015-Cus dated 23rd October, 2015. The Customs Department failed to obtain the necessary approval, rendering the appeal invalid. 4. Issuance of Exit Permit for the Petitioner: The petitioner sought an Exit Permit to return to China, which was initially opposed by the Customs Department. The Additional Chief Metropolitan Magistrate directed the FRRO to issue the Exit Permit. Despite the acquittal and dismissal of the appeal, the Customs Department continued to create hurdles, citing an intention to challenge the acquittal, although no such challenge was filed within the limitation period. 5. Conduct of the Customs Department in Handling the Case: The court criticized the Customs Department for its wrongful and vindictive conduct, noting that the petitioner had already spent over five years in India and had faced significant hardship. The court highlighted the fundamental rights guaranteed under Articles 20, 21, and 22 of the Constitution, which apply to all persons, including non-citizens. The Customs Department's actions were deemed a gross abuse of power and a violation of the petitioner's rights. Order: The court ordered the Customs Department to issue a no-objection certificate for the Exit Permit within one week and to pay Rs. 10,00,000/- as compensation to the petitioner for the mental agony and trauma suffered. The compensation amount was to be recovered from the salary of the responsible official. The petition was allowed, and the rule was made absolute in these terms.
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