9911796707
TMI Blog2016 (1) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 15.470 MT which have been illegally and unauthorizedly withheld by the Respondents despite the proceedings initiated against the petitioners in respect of the said goods for the charge of its illegal import has been dropped by the Adjudicating authority and there is a specific direction for release of the seized goods vide order dated 28.03.2013." (underlining for emphasis) 3. The facts giving rise to the aforesaid underlined prayer in this writ application lie in a very narrow compass. It is the case of the petitioners that they had imported 15.470 MT of processed betel nuts from Bangladesh through Land Customs Station, Petrapole under a valid bill of entry dated 28.01.2013. It is also claimed that upon clearance of payment of the prescribed amount of import duty, the goods imported by the petitioners were examined and after assessment and clearance of the goods, they were loaded in West Bengal registered vehicles and were brought to a place Bangaon by these trucks from where the goods were transferred/loaded to the trucks provided by the Transporter M/s SRC India Movers enroute to their business premises at New Delhi. The petitioners, in this regard, have also asserted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afety & Standards Act, 2006. 7. According to the petitioners, they were subjected to confiscation proceedings in terms of Section 111 read with Section 115 of the Act and they were called upon to file their show cause as to why 190 bags of betel nuts of Bangladesh weighing 15470 Kg. (15.470 quintals) valued at Rs. 14,69,650/- as also the truck in question valued at Rs. 12,00,000/- should not be confiscated under Section 115 of the Act and penalty in terms of Section 112 and 116 of the Act be not imposed upon them. The petitioners thereafter had filed their show cause reply dated 8.5.2013 to the show cause notice dated 08.04.2013 in which they had categorically denied the allegation made in the show cause notice and had gone to explain that the goods in question were legally imported with the valid documents as also after due custom clearance and were being transshipped to its destination at Delhi. 8. It is the further case of the petitioners that during pendency of the confiscation proceedings pending before the Additional Commissioner (Adjn.) Customs, Patna, they had again sent a notice dated 12.09.2013 to the Additional Commissioner, Customs Headquarters, Patna from compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners already quoted above their main grievance, on the date of filing of the writ application i.e. 05.08.2014, was that despite an order of provisional release passed by the competent authority of the Custom Department dated 28.03.2013 followed by the final order dated 29.11.2013 dropping the confiscation proceedings, its seized articles (split betel nuts) on 16.02.1993, were not released. This Court, thus, considering the urgency of the matter, by its order dated 06.08.2014, had directed the learned counsel for the Custom Department to take instructions and file counter affidavit disclosing reasons for not releasing the seized articles within next four days so that the case could be heard on 11.8.2014. 12. Pursuant to the aforesaid order of this Court dated 06.08.2014 though the case could not be taken up on 11.08.2014, but then, on 22.08.2014, a counter affidavit had been filed on behalf of the authorities of the Custom Department wherein an order of release dated 09.08.2014 had been enclosed directing for the provisional release of the split betel nuts of the petitioners and a plea was taken in such counter affidavit that since the goods had already been released in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spection Agency, Kolkata dated 28.01.2013, on the basis of which, the petitioners were carrying the betel nuts through the road by a truck which was intercepted and had led to seizure of the goods on 17.02.2013. On this basis, it was claimed by the Custom Department that the seized betel nuts were not those for which the petitioners had obtained the test report of Export Inspection Agency, Kolkata dated 28.01.2013. 14. It was further stated in the counter affidavit that the departmental appeal before the Commissioners (Appeal) against the final order of Adjudication dated 29.11.2013 was still pending. What is actually relevant in this regard is that in para-5 of the counter affidavit the authorities of the Custom Department had accepted that the Additional Commissioner (Adjn.), Customs Hqrs., Patna, vide order dated 28.03.2013, had directed for release of the seized goods in favour of the petitioners, but as a test report of the said betel nuts dated 3.4.2013 was received from the C.F.L., Raxaul stating that the sample of betel nuts does not conform to the standard laid down under Regulation No. 212 and 2.3.47(5) of Food Safety and Standard (FSS Act, 2006). Para 5 of the said coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 09.08.2014 for Rs. 9,28,200/-, and Rs. 14,69,650/- respectively against release order dated 08.08.2014 issued from file No. VIII (10) 10-Cus/P/H/Seiz12-13-reg Please refer to your letter dated 12.09.2014 on the captioned subject. In this regard, it is to intimate that order in Appeal No. 838/Pat/Cus/Appeal/2014 dated 09.09.2014 has been accepted by the Competent authority. Hence, Bank guarantee No. 1BG54159 and surety Bond dated 09.08.2014 for Rs. 9,28,000/- and Rs. 14,69,650/- respectively are being revoked. As these are valuable documents, your are requested to collect them personally form this officer on any working day as per your convenience and kindly intimate the date of your visit to this office. Your's faithfully Assistant Commissioner (Prev) Customs (P) Hqrs, Patna Ms. Archana Meenakshi, Sr. Standing Counsel, She is requested to place the documents before the Hon'ble High Court, Patna in proof to the letter was returned back with postal remark "Lock Closed" dt. 19.11.2014. Superintendent (Legal) Customs (Prev) Hqrs." 17. Learned counsel for the petitioners, however, had made a strong protest to the aforementioned submissions of Mrs. Archana Meenakshi and had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any manner or for any purpose. Though Mrs. Archana Meenakshee, learned Senior standing counsel appearing on behalf of the Custom Officials, has produced a letter dated 11.11.2014, which is kept on records, this Court would direct the Commissioner of Customs (Preventive) to file an affidavit giving explanation as to why it had taken almost 1½ years to act upon the order of the provisional release and if he finds that some officials of the Department are responsible for such delay he must inform this court as to what action has been or would be taken against them for their obvious laches in performance of official duties. Put up this case on next Tuesday i.e. 9.12.2014 under the same heading when the Commissioner of Customs (Preventive) shall also remain personally present. 19. Pursuant to the aforementioned order dated 02.12.2014, the Commissioner, Customs had filed a supplementary counter affidavit, relevant portion whereof reads as follows: "4. That it is further submitted that the seizure of foreign origin betel nut weighing 15470 kg. valued at Rs. 14,69,650/- along with the truck bearing registration number HR 46C 3697 valued at Rs. 12,00,000/- totally valued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is further submitted that being aggrieved by the order dated 29.11.2013 Department filed an Appeal before the Commissioner (Appeals) on 25.03.2014. 13. That it is further submitted that since the goods were found adulterated Department was not in position to release the goods in terms of the Instruction issued vide F.No. 450/100/2006- Cus. IV dated 12th October, 2006 by the Central Board of Excise and Customs that the seized goods cannot be released when goods found adulterated as per the Chemical examination report under PFA Act, 1954 by the notified laboratory. 14. That it is further submitted that the petitioner on 08.08.2014 submitted the Bond with requisite bank guarantee and subsequently the goods were handed over to the petitioner. 15. That it is further submitted that when the matter was decided by Commissioner (Appeals), orders for release of Bond and Bank Guarantee were immediately issued on dated 11.11.2014 and the letter was dispatched to the petitioner by post on the same day which was returned undelivered by Postal Authority with remarks dated 19.11.2014 as "Lock Closed" and same were handed over to the petitioner's representative when he came in pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility on the concerned officials who had caused abnormal delay in the release of the consignment of the petitioners. Para 15 of the second supplementary counter affidavit in this regard reads as follows: "That an inquiry has been ordered in the matter to ascertain the name of the officers who were in fault, so that disciplinary action may be initiated against them." 23. On 19.12.2014, a 3rd supplementary counter affidavit was filed enclosing the copy of the inquiry report dated 18.12.2014 wherein following conclusions were recorded by Mr. K. Ramamurti, the Additional Commissioner: Conclusion (i) It appears from above that there has been no deliberate attempt not to release the goods. In view of the adulterated nature of the subject goods which is prohibited under the Prevention of Food Adulteration Act 1954, there was no scope for the department to release the goods. (ii) Though the adjudication order was in favour of the party, the goods could not be released because the Reviewing Authority did not accept the adjudication order which necessitated filing of Appeal against the said the adjudication order. In compliance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egally imported by them in India, should be allowed. 26. It appears that on receipt of such application, the competent authority had addressed himself to the issue of provisional release of seized articles of the petitioners and had directed the Assistant Commissioner, Custom by his letter dated 26.3.2013 to furnish relevant documents necessary for considering the request of the petitioners for provisional release of the seized articles. The competent authority in his such letter dated 26.3.2013 had also specifically asked the Assistant Commissioner, Preventive to give specific comments as to whether provisional release of the seized processed betel nut and the vehicle would have any adverse impact on investigation of the case against the petitioners. Pursuant thereto, the Assistant Commissioner, Preventive on 26.3.2013 had submitted his report without objecting to the provisional release of the seized articles of the petitioners. It was only thereafter that on 28.3.2013, the competent authority, namely, the Additional Commissioner of Custom had passed an order for provisional release which was communicated by the Superintendent, Adjudication vide his order dated 29.3.2013 with co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y asked by the Superintendent, Adjudication, Custom, Patna to seek further report from C.F.L. Kolkata Extension Center at Raxaul and Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad as to whether the said betel nuts could be made fit for human consumption by way of fumigation so that the further action for provisional release of the seized betel nuts could be taken. Pursuant thereto, a communication was made to the Officer In-charge of C.F.L., Laxmipur, Raxaul as to whether the said betel nuts could be made fit for human consumption by way of fumigation and such desired information was sought to be furnished on priority basis so that the action could be taken for provisional release of the betel nuts. 31. From the records, it is also borne out that the Officer in-charge of C.F.L., Raxaul Extension Center, Raxaul, in his letter dated 2.8.2013, had informed the Superintendent, Preventive that certifying the fitness of betel nuts for human consumption was beyond the scope of activities of C.F.L. It appears that on 12.8.2013, the Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad earlier was given another reminder for sending the report in respect of specimen betel nuts as also as to whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on 25.3.2014, a decision was taken for filing an appeal against the order dated 29.11.2013 passed by the Additional Commissioner, Custom dropping the adjudication in the confiscation proceeding. The petitioners who were however desperate to get their seized betel nuts released had once sent a legal notice dated 29.3.2014 asking the Assistant Commissioner, Custom to release betel nuts and in the aforesaid legal notice, it was made clear that the seized betel nuts were in fact to be used for manufacturing of mosquito repellent coils and not for the human consumption and thus the betel nut should be released so as to protect them from perishing. 35. It also appears from the letter of the Assistant Commissioner, Preventive dated 9.4.2014 that the samples of the seized betel nuts of the petitioner were once again sent to C.F.L., Raxaul for submission of the test report whereafter the C.F.L., Raxaul on 21.4.2014 had submitted its report in which it was stated that the split betel nut did not conform to the standards as the damaged and discolored nuts including insects damaged betel nuts had exceeded the prescribed limits. The Department thereafter claims to have sent the copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . His all three conclusions is bereft of his awareness of the provisions of the Customs Act, inasmuch as when there was an order of provisional release dated 28.3.2013 in terms of Section 110A of Customs Act in favour of the petitioners, his finding that there was no deliberate attempt not to release the seized articles of the petitioners is absolutely a perverse finding. The help taken by him of the provisions of Prevention of Food Adulteration Act, 1954 in no view of the matter could have become a factor after the order of the provisional release dated 28.03.2013 was passed and unless such order was set aside by the higher authority the same had to be essentially acted upon. 40. It is also apparent that Mr. K. Ramamurthy either in ignorance or deliberately had lost sight of the fact that it was only after order of the provisional release was passed by the competent authority on 28.3.2013 and that too upon perusal of test report of Kolkata dated 28th January, 2013 as also supported by other valid import document including the bill of entry produced by the petitioners on 6.3.2013 on being duly verified in the comments submitted by the Assistant Commissioner in his letter dated 28.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over and virtually overruled the statutory adjudicatory order under section 110A of provisional release of the seized articles of the petitioners dated 28.3.2013. Thereafter the adjudication proceedings got concluded by way of dropping of confiscation proceedings against the petitioners on 29.11.2013 and as noted above, the appeal was not filed till 23.4.2014. Thus, if the sample could be sent again to F.S.L. only in the month of April, 2014 this court fails to understand as to what had prevented the Department in doing so in the interregnum period of one year? This Court, therefore, will have no difficulty in coming to the conclusion that Mr. K. Ramamurthy was also trying to shield not only the other erring officials of the Custom Department but also himself. 44. It must be kept in mind that though an attempt was made by the officials of the Custom Department in the counter affidavits and also in the enquiry report of Mr. K. Ramamurthy to suggest that the provisional order of release dated 28.3.2013 had been reviewed by the same authority on 29.4.2013 but no such order has been produced before this Court except some noting in the file or inter departmental communication dated 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review has been produced before this Court, it was all the more imperative for the authorities to at least give notice to the petitioners and hear them before passing of the alleged order of review. Admittedly that was never done and therefore, this Court cannot accept the defence of the so called review of the provisional order of release dated 28.3.2013 by the same authority who allegedly in the file had passed some order on 29.4.2013. 47. Let it be kept in mind that the order of provisional release of the seized goods passed by the adjudicating authority on 28.03.2013 was also never made subject matter of any appeal by any authority on any ground whatsoever and, therefore, the internal correspondence with regard to sending sample of the consignment for obtaining report of the C.F.L. could not have been made an excuse for not releasing the goods of the petitioners. What would really further surprise this Court that such alleged order of review the adjudicating authority dated 29.04.2013 is said to have been communicated vide letter no. 2038 dated 29.04.2013 only to the Superintendent (Prev.) Customs (P) Hqrs., Patna, being Annexure-Q series to the 3rd supplementary counter affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: "It is observed that no documents could be found at the time of interception of seized goods, either in the truck or in the possession of Noticee no.1, who is khalasi of the seized vehicle. It was only on 6.3.2013, when Shri Kalu Ram Kundlia (Noticee No. 3) appeared before the department and provided the documents pertaining to the consignment in question. His version has already been detailed above and need no repetition. It is observed from the documents annexed with the show cause notice that it contains a copy of print out of D-IX/D-X Suvidha, which gives details of the consignment in question for VAT as well as interstate movement of consignments. As per the details contained in the said Suvidha form, the consignor of the goods is M/s Jahan Processing Export Limited and the consignee is M/s Overseas Enterprises, Naya BAzar, New Delhi and the relevant Invoice No. is EXP/JPEL/OE/048/2012 dated 19.11.2012. The consignment note no. is 16413 dated 14.02.2013 and vehicle No. is HR 46C 3697 and it is crossed Integrated Check Post, Dobhi on 15.02.2013 at 1:37 PM for Integrated Check Post, Karmnasa. It is apparent that the declaration of the consignment made to the VAT depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of infection/infestation with insects cannot be ruled out. Hence, the possibility of at least some part of the consignment getting infected in the intervening period cannot be ruled out. In view of the above, I find that the seized goods pertain to legally imported consignment of betel nuts imported form Banglaesh vide Bill of Entry No. 01210/16/2013 dtd. 28.01.2013 processed at LCS, Petrapole. Accordingly, the proceedings initiated vide Show Cause Notice issued under C.No. VIII(10)10-Cus/P/H/Seiz/2012-13 dated 08.04.2013 is liable to be dropped. Order Taking into consideration all the facts, as discussed above, and in exercise of powers conferred upon me under Section 122 of the Customs Act, 1962, I drop the proceedings initiated vide Show Cause Notice issued under C.No. VIII(10)10-Cus/P/H/Seiz/2012-13 dated 08.04.13. (AKHILESH KUMAR) Additional Commissioner (Adjudication) Customs(P) Headquarters, Patna." (underlining for emphasis) 50. Section 110-A of the Customs Act lays down the power of the adjudicating authority for directing the provisional release of the seized goods on obtaining a bond with security and also imposing any conditions in the following words: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of either confiscation or paying fine by the petitioners and, in fact, the proceedings itself was dropped, the authorities, in any view of the matter, whether in the name of the pendency of the report of the C.F.L. or otherwise, could not have kept the seized consignment of the petitioners in their possession even for a day. 55. Let it be noted that the appeal was filed by the Department against the order of the confiscation dated 29.11.2013 only on 25.03.2014 i.e. after a period of 04 months and in this period there was no stay of any court or any authority not to release the seized goods of the petitioners. 56. This Court, in fact, has amazed with the approach of the authorities of the Custom Department, which, in the name of obtaining the report from the C.F.L., had kept the matter relating to release of seized goods of the petitioners pending from 03.04.2013 to 24.04.2014 despite both the provisional order of release dated 28.03.2013 and the adjudicatory order dated 29.11.2013 to be in favour of the petitioners. 57. At this stage, it is also significant to note that the report of the C.F.L., Raxaul dated 3.4.2013 could not have inspired any confidence, inasmuch as, the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for priority foods. c) As per provisions of the Act & Rules for both the above. 1. Physical Examination Visual Examination Betel Nut from fungal growth Free from fungal growth and discoloration 2. Extraneous Vegetable Matter (m/m) DGHS MANUAL Absent 1% 3. Damaged & Discolored Nuts including Insect Damaged Betel Nuts (m/m) DGHS MANUAL 62.18% 2% 4. Rodent Hair & Excreta DGHS MANUAL Present 5. Insect DGHS MANUAL Present 6. Added Colouring Matter DGHS MANUAL Present OPINION: The Sample of Split Betel Nut does not conform to the standards laid down under regulation No. 2.12 & 2.3, 47(5) of Food Safety and Standards (FSS) Act, 2006 and FSS (Food Products & Food Additive) Regulation, 2011 as the damaged & discolored Nuts including Insect Damaged Betel Nuts exceeds the prescribed limits. Place: Raxaul Dated 16.04.2014 Sd./- (Dr. Debadutta Mishra) Officer-in-Charge CFL, Kolkata (Extension Centre, Raxaul)" 59. Now if the two reports are compared, first of all, it would be clear that the report dated 3.4.2013 does not contain the prescribed standard on the basis of which the C.F.L., Raxaul could have declared the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstance of Union of India and the Division Bench did not allow the plea of the Custom Department for not releasing the betel on account of its being allegedly adulterated as would be more apparent from the order dated 25.11.2013 in LPA No. 1186 of 2013, which is quoted herein below:- "This Appeal under Clause 10 of the Letters Patent has been preferred by the applicant Union of India against the order dated 24th July 2013 made by the learned single Judge in M.J.C. No.2185 of 2013 arising from the order dated 17th January 2013 made by the learned single Judge in C.W.J.C. No. 317 of 2012. The matter at issue is the seizure of some 38920 Kg. of Bengal Fali Betel Nuts transported by the writ petitioners by two vehicles seized by the appellant Customs authorities. Under order dated 4th March 2013 made in C.W.J.C. No. 3784 of 2013, the learned single Judge directed the respondents to release the betel nuts and the vehicles. Since then, the respondent Union of India and the Customs authorities approached the learned single Judge in M.J.C. No. 2185 of 2013 for modification of the order dated 4th March 2013 on the premise that the betel nuts seized by the Customs authorities were adulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in whose favour the confiscation proceeding was also dropped, could still impound betel nuts by way of permanent seizure and confiscation. This Court cannot read so in the order of the Apex Court dated 8.5.2014 of dismissal of the Special Leave Petition filed by the Custom Department observing question of law to be remain open much less hold that the release of the split betel nuts of the petitioners could have been withheld for a period of one and half year which also surprisingly was released immediately on 9.8.2014 after filing of the writ application on 5.6.2014 when the respondents could not find any plausible answer much less any defence in support of their action of not releasing the betel nuts in favour of the petitioner despite the order of provisional release dated 28.3.2013 and dropping of the confiscation proceeding itself by an order dated 29.11.2013. 63. Having thus regard to the findings of the adjudicating authority in confiscation proceedings dated 29.11.2013 which also stands fully affirmed by way of dismissal of appeal filed by the department, this Court would find it difficult to accept any of the plea of Custom Department with regard to non-release of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts being adulterated on 04.04.2013 also does not hold good either on facts or in law. As a matter of fact when the betel nuts were already directed to be provisionally released by an order dated 28.03.2013, there being no power of review in the adjudicatory authority, either the effort of the officials in withholding the seized consignment of cut betel nuts of the petitioners or its alleged order of review by the adjudicating authority of 29.04.2013 was itself without jurisdiction. 66. In any event after adjudication in confiscation proceeding was decided in favour of the petitioners on 29.11.2013 and confiscation proceeding against the petitioners was dropped on 29.11.2013, there was no justification whatsoever, in still withholding the consignment of seized cut betel nuts of the petitioners and therefore, in all fairness the officials of the Customs Department ought to have released the seized goods immediately after 29.11.2013 inasmuch as awaiting the result of the re-verification of the sample or awaiting for the result of the appeal, is not permissible in law and therefore, this Court cannot approve the delay in release of the cut betel nuts of the petitioner even for a day a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the seized betel nuts of the petitioners was released by the Custom Department only on 9.8.2014. In fact, there could be no logic or justification whatsoever in not releasing the seized goods of the petitioners at least after receiving this negative test report of the betel nuts from the C.F.L. on 24.04.2014, holding the same to be neither spurious nor contaminated nor even adulterated but that also was not done till the petitioners filed the writ application on 05.08.2014 and in fact till echo of first order of this Court passed on 06.08.2014 was heard by the officials of Custom Department directing the authorities of the Custom Department to explain as to why the goods of the petitioners were not released despite an order of provisional release dated 28.03.2013 and the final order of the adjudicating authority dropping the proceedings itself on 29.11.2013. 70. In any event after 24.04.2014, when a negative test report of the cut betel nuts of CFL, Raxaul dated 16.4.2014 was received by the department from C.F.L, Raxaul there was no valid reason whatsoever for not releasing the goods in question in favour of the petitioners. In this regard it must be kept in mind that in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73. This Court, therefore, is of the view that had the authorities of the Custom Department released the seized betel nuts in view of provisional release dated 28.3.2013 by accepting the Bank guarantee as granted in the aforementioned order which they eventually did on 9.8.2013, neither the petitioners could have been put to a loss nor the authority of the Custom Department in any way could have been prejudiced in pursuing and completing the confiscation proceedings. 74. This Court is really disturbed in the manner in Mr. Kishori Lal the Commissioner Customs (P), Patna has conducted himself before this Court inasmuch as he even did not spare any effort in hoodwinking this court. Mr. Kishori Lal, the Commissioner of Customs (Prev.) Patna, who had appeared before this Court on 09.12.2014 and 16.12.2014 and had assured this Court of an independent inquiry for fixing the responsibility of the guilty officials and had eventually appointed Mr. Ramamurthy to hold such enquiry. If Mr. Ramamurty himself was a party to the decision questioning the order of final adjudication dated 28.11.2013 as is clear from Annexure XV to the last counter affidavit filed by the respondents, Mr. Kishori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ennial loss. Since the authorities themselves had valued and quantified the price of the seized articles, namely, split betel nuts weighing 15.470 M.T. to the tune of Rs. 14,69,650/- on 17.2.2013, the petitioners would become at least entitled to recover this amount from the officials of the Custom Department. 77. By now, the law is well settled that the public officers have to be also held accountable for their acts of omission and commission. Reference in this connection may be made to the judgment of the Apex Court in the case of Lucknow Development Authority Vs. M.K. Gupta reported in 1994(1) SCC 243, in the case of State of A.P. Vs. Food Corporation of India reported in 2004(13) SCC 53 and in the case of Delhi Airtech Services Private Limited and Anr. Vs. State of Uttar Pradesh & Anr. reported in 2011(9) SCC 354. The apex Court in this regard in the case of Lucknow Development Authority (supra) had approved the following observation of Misfeasance in public office as explained by Wade in his book of Administrative Law "Even where there is no ministerial duty as above, and even where no recognized tort such as trespass, nuisance, or negligence is committed, public authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries." 79. A similar view was taken by the Apex Court in the case of Food Corporation of India (supra) wherein recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have 109 been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied. 216. The doctrine of `full faith and credit' applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Avoidance and delay in decision making process in Government hierarchy is a matter of growing concern. Sometimes delayed decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofesses to act is the same standard by which its action shall be judged. Therefore, whenever the government terminates an appointment being illegal, it is the constitutional duty of the government to simultaneously take action against the officials who belied the trust of the government. Those who made hay while the sun shined must see the darker cloudy days also. In 1995(2) PLJR 573 (DB) (Bimal Kishore Rai v. State of Bihar) it was directed: "16. In cases where an appointment is found to have been illegally made, the courts quash the appointment and, therefore, the appointee suffers the consequence. However, the real guilty person, namely, the appointing authority does scot free. The result is that even though large number of such appointments have been quashed by the courts, the appointing authorities have showed total indifference to the orders passed by the courts, and they continue to make such appointments. It is a wellknown fact, so far as this state is concerned, that appointment in majority of cases has to be bought. The ordinary citizen who has concern for the law and morality, must suffer, even if in terms of capability and merit he is far superior to the unscrupulou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs on account of delay of nearly 1½ years in release of the seized articles, shall be recovered from the erring officials and for the purposes of fixing individual responsibility on such erring officials this Court would direct the Chairman of Central Board of Excise and Customs Department of Revenue, New Delhi to get an enquiry conducted by an Officer not below in the rank of Chief Commissioner of Customs who must not be posted and/or associated in any manner with Patna Zone of the Custom Department. 84. Upon completion of such enquiry and upon submission of enquiry report appropriate action under the orders of Chairman Central Board of Excise and Customs, New Delhi be taken against erring officials not only for recovery of the amount directed to be paid under this judgment to the petitioners but also for initiating and concluding disciplinary proceedings by the competent authority against the erring officials of Customs Department of Patna zone who are found to have caused delay in release of the seized articles of the petitioners in any part of period in between 28.3.2013 to 9.8.2014. This whole exercise must be completed within a period of six months from the date of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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