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TMI Blog2010 (5) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... -February 2010 and filed Bill of Entry under section 46 of the Customs Act, 1962 (for short, 'the Act'). The petitioner sought clearance of the goods for home consumption on payment of import duty. The officers of the department physically verified the goods and took samples for the purpose of making assessment of duty under section 17 of the Act. There was also correspondence between the petitioner and the department. Thereafter, the goods were seized vide Panchnamas Annexures P.6 to P.8, P.10 and P.11 between 12.3.2010 to 19.3.2010. 3. The petitioner sought release of goods pointing out that examination of goods had already taken place and there was no justification for seizure of the goods. It was also pointed out that detention of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard learned counsel for the parties and perused the record. 7. Learned counsel for the petitioner submitted that the goods are being detained for the last about three months and it was only on April 7, 2010 that counsel for the respondents made a statement that the goods could be shifted to the godown of the petitioner under the seal of the respondents. Mere shifting of goods to the godown of the petitioner was no relief as the goods could not be dealt with as the petitioner may like to. The petitioner was, thus, suffering loss. Action of the respondents was without any valid justification. The said action amounted to seizure without following the statutory safeguards. It was submitted that though, power of seizure may be exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Art.20(3) would be defeated by the statutory provisions for searches." 15. At page 302 of the said judgment, it was observed: "A search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the articles seized. Statutory regulation in this behalf is necessary and reasonable restriction cannot per se be considered to be unconstitutional. The damage, if any, caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings. We are unable to see how any question of violation of Art. 19(1) (f) is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21." Xx xx xxx xxx xxx 25. We are of the view that while existence power of seizure may be justified but its exercise will be liable to be struck down unless 'reasons to believe' were duly recorded before action of search and seizure is taken, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Chapter VII of the Act. Section 47 of the Act provides for clearance of goods on payment of duty, unless goods are prohibited goods. It is not the case of the respondents that goods are prohibited goods. It is also not their case that duty assessed under section 17 or 18 has not been paid. In such a situation, non clearance of goods may be justified for minimum period required for assessment. In no case, non clearance of goods for months can be justified. Non clearance seriously affects rights of lawful importer and fair procedure being constitutional mandate, no authority can plead unlimited power of non clearance for its own incompetence as a justification beyond reasonable period. Learned counsel for the respondents submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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