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TMI Blog2015 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... by him is devoid of merits, in the considered opinion of this Court. In view of the fact that the Learned Single Judge had not borne in mind the ingredients of sub-section (3) of Section 108 of the Customs Act, 1962 which makes it mandatory upon the person summoned under that Act to state the truth upon any subject respecting which he is examined or makes a statement, this Court comes to an inevitable and irresistible conclusion that the views taken by the Learned Single Judge that 'Suspicion cannot take the place of proof, however, strong it may be. Therefore, refusing to order the provisional release of the cash seized from the premises of the petitioner in the second writ petition, may give a leverage or licence to the Respondents to stamp any item or cash seized from any office premises as the sale proceeds of smuggled goods' and consequently, allowing the said Writ Petition by directing the Appellants to return the amount of ₹ 7 ,00,000 /- of Indian currency seized from the office premises of the Petitioner on 24.06.2014 etc., are clearly unsustainable in the eye of law. Furthermore, the observation of the Learned Single Judge in the Writ Petition to the effect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeds of the smuggled goods. Therefore, I am of the view that the second writ petition deserves to be allowed' and resultantly, allowed the Writ Petition by directing the Respondents to return the amount of ₹ 7 ,00,000 /- of Indian currency seized from the office premises of the petitioner on 24.06.2014, within a period of two weeks from the date of receipt of a copy of this order, subject to their executing a personal bond to deposit the amount, if an order of adjudication is passed against them. 3. The primordial submission of the Learned Counsel for the Appellants is that the Learned Single Judge, while allowing the Writ Petition on 08.10.2014, had failed to take into account an important fact that the Respondent, instead of answering the five summons issued to him beginning from 16.07.2014 to 14.08.2014 for his personal appearance etc., had filed the present Writ Petition without any valid reason or cause. 4. The Learned Counsel for the Appellants urges before this Court that the Respondent was not able to substantiate the origin of seized cash of ₹ 7 ,00,000 /- at the time of preparing the Mahazar and further that the explanation offered in the writ affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudice to the adjudication proceedings. 9. While winding up, the Learned Counsel for the Appellants contends that the cash seized under Section 110 of the Customs Act is based on the reasonable belief that the same are sale proceeds of the smuggled goods which cannot be released/returned to the Respondent. 10. Per contra, it is the submission of the Learned Counsel for the Respondent that the Learned Single Judge had rightly allowed the Writ Petition by directing the Appellants to return the amount of ₹ 7 ,00,000 /- of Indian currency seized from the office premises of the Respondent/Petitioner on 24.06.2014 etc. and further, the Learned Single Judge had correctly observed in the course of the order that 'refusing to order the provisional release of the cash seized from the premises of the Petitioner (Respondent), may give a leverage or licence to the Appellants to stamp any item or cash seized from any office premises as the sale proceeds of smuggled goods etc. 11. At this stage, this Court pertinently points out that there is no dispute in regard to the fact that the Respondent was issued with summons under Section 108 of the Customs Act, 1962 dated 16.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962, he is to state the truth and is expected to appear before the officer in obedience to the summons and in compliance with Law. Also that, it is the inherent power of every Gazetted Officer of the Customs Department to enquire into the matter of smuggling etc. 16. To put it succinctly, a summon can be issued to a person for the production of documents or those in possession or under the control of persons summoned and such a person is bound to attend and state the truth upon any subject pertaining to which he is examined by the summoning officer and these powers are showered obviously with an idea to check the smuggling. 17. In this connection, this Court very relevantly points out that the existence of a belief is a pre-condition for seizure and also that if there existed some material upon which such a belief could be formed the Court is not concerned with the propriety or the belief or sufficient of material as per decision G opaldas Udhavdas Ahuja V. Union of India, 2004 (176) E.L.T . 3 at pages 20-21 (S.C.). 18. Furthermore, under Section 110 of the Customs Act, 1962 a proper officer has power to seize goods if he has reasonable belief that the goods ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is to appear before the officer concerned in obedience to the summons issued and in compliance with law. Without making his appearance before the concerned officer and avoiding the five summons issued, the filing of Writ Petition by the Respondent/Petitioner is a premature and otiose one. Ordinarily, as against the issuance of summons, a Writ Petition would not lie. When the Respondent had not participated in the enquiry/investigation proceedings by dissuading the five summons issued to him, then, the filing of the Writ Petition by him is devoid of merits, in the considered opinion of this Court. 23. That apart, in view of the fact that the Learned Single Judge had not borne in mind the ingredients of sub-section (3) of Section 108 of the Customs Act, 1962 which makes it mandatory upon the person summoned under that Act to state the truth upon any subject respecting which he is examined or makes a statement, this Court comes to an inevitable and irresistible conclusion that the views taken by the Learned Single Judge that 'Suspicion cannot take the place of proof, however, strong it may be. Therefore, refusing to order the provisional release of the cash seized from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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