2013 (10) TMI 1205 - HC - Customs

Confiscation of gold - Detention under Customs Act, 1962 - Petitioner contends that he came to know about the adjudication order only in 2009 - Held that - As per the adjudication order in original, direction was made for absolute confiscation of 9 Kilograms of gold and penalty of Rs.8 lacs was imposed. The adjudication order was sent to the address of the petitioner at Punjab but the same could not be served as the petitioner was absconding. The petitioner cannot and should not be allowed to take advantage of his own wrong, as he was absconding and deliberately did not appear before the courts/authorities. Once show cause notice was issued and served on the petitioner, as accepted, he was aware about the adjudication proceedings. The plea taken by the petitioner that he came to know about the adjudication order only in 2009 is fallacious, wrong and cannot be accepted - Decided against petitioner.

Issues:
1. Service of adjudication order in original to the petitioner
2. Seizure of gold and subsequent legal proceedings
3. Applicability of plea bargain provisions
4. Confiscation of gold and penalty imposition
5. Absconding of the petitioner and legal consequences

Service of Adjudication Order:
The petitioner claimed that the adjudication order dated 16th December, 1996, was not served on him, leading to the belief that the appeal filed was not belated. The petitioner argued that the order should have been served at least on his counsel or sent to his address in Germany. The appellate order mentioned that the original order was sent to the petitioner's last known address but was returned as the addressee had left for Germany. The Customs Act stipulates that if the order cannot be served personally, it can be affixed on the notice board in the customs house. The court noted that the petitioner was aware of the adjudication proceedings as the show cause notice was duly served while he was in jail.

Seizure of Gold and Legal Proceedings:
Nine kilograms of gold were seized from the petitioner at the airport in 1994, leading to his arrest and subsequent release on bail. The petitioner disputed being aware of the adjudication order passed in 1996 until 2009. The Commissioner (Appeals) dismissed the appeal on grounds of delay and laches. The court upheld the confiscation of the gold and imposition of a penalty, noting that the petitioner should not benefit from his absconding and deliberate avoidance of court appearances.

Applicability of Plea Bargain Provisions:
The petitioner, after being detained under the Customs Act, faced legal proceedings and was convicted under sections 132 and 135(1)(a) of the Act. He filed an application under the Code of Criminal Procedure, pleading guilty, which was objected to by customs authorities. The application was dismissed, and the petitioner was sentenced to undergo imprisonment for the period already served. The petitioner challenged the order through a writ petition and Special Leave to Appeal, but was unsuccessful.

Confiscation of Gold and Penalty Imposition:
The adjudication order directed the absolute confiscation of the gold and imposed a penalty of Rs. 8 lakhs. It was noted that the order was sent to the petitioner's address in Punjab, but could not be served as he was absconding. The court emphasized that the petitioner was aware of the adjudication proceedings once the show cause notice was served, rejecting his claim of being unaware of the order until 2009.

Absconding of the Petitioner and Legal Consequences:
The petitioner's absconding led to him being declared a proclaimed offender and facing criminal proceedings under the Customs Act. Despite filing a guilty plea application, the plea bargain provisions were deemed inapplicable. The petitioner's conviction under the Act was upheld, and the writ petition challenging the order was dismissed. The court concluded that there was no merit in the writ petition and dismissed the same.

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