9911796707
TMI Blog2016 (1) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 09.08.2014. This Court, therefore, would not be required to say anything more about the events which have taken place after releasing of betel nuts on 09.08.2014, inasmuch as, the appeal filed against the adjudicatory final order in confiscation proceedings dated 29.11.2013 was also eventually dismissed on 29.11.2013 some time in November, 2014 which led to return of bank guarantee to the petitioners in view of the order dated 11.11.2014 as quoted above in paragraph no.16 of this judgment. What really amazes this Court is that even after the adjudication in confiscation proceedings were itself dropped, by the final order dated 28.11.2013 when there was no sanction of law under any provision of Customs Act which would have empowered the authorities of the Custom Department to withhold the release of the seized articles of the petitioners inasmuch as the Custom Department and its authorities in fact had no power in law to keep the seized articles in their possession after passing of the final order of adjudication dated 29.11.2013, they still did not release the articles despite the petitioners' application dated 2.12.2013 on a plea that such articles of the petitioners could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 382 of 2014 - - - Dated:- 30-11-2015 - MR. JUSTICE MIHIR KUMAR JHA For the Petitioner : Mr. Sudhir Kumar, Adv For the Respondent :Mrs. Nivedita Nirvikar, Adv, Mrs. Archana Meenakshi, Adv. JUDGEMENT Heard learned counsel for the parties. 2. When this case was filed on 05.08.2014, the prayer of the petitioners had read as follows:- That the petitioners by way of the present writ petition are seeking a writ of mandamus and/or any other appropriate writ or direction to the Respondents to release the seized goods (split betel nuts) of the petitioners imported vide Bill of Entry No. 01210/16/2013 dated 28.01.2013 weighing 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28.03.2013. 6. It is also the case of the petitioners that though they had made possible efforts for getting release of the goods in terms of the aforesaid order of the provisional release dated 28.03.2013, but the same was still not released by the authorities of the Custom Department who under a design and mala fide intention, in order to block the release of the seized goods on 2.4.2013 had sent the sample of goods (betel nuts) for testing to Central Food Laboratory, Kolkata Camp, Raxaul (hereinafter referred to as 'the C.F.L.') which on 03.04.2014 had submitted a report that the sample was found to be adulterated and unsafe as per the Food Safety 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 ₹ 14,69,650/- as also the truck in question valued at ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its request for release of the seized betel nuts was not allowed despite the fact that the petitioners had kept on informing the authorities as with regard to perishable nature of the seized betel nuts. According to the petitioners, on 09.04.2014, the sample of the betel nuts was again sent to C.F.L, Raxaul for its being tested and when on 24.04.2014 a negative test report of betel nuts was received by the Custom Department from the C.F.L., Raxaul, the authorities of the Custom Department had still not released the seized betel nuts of the petitioners whereafter they had been compelled to file this writ application on 05.08.2014. 11. As would be found from the prayer of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nty eight thousand two hundred only numbered IBG54159 DATED 09.08.2013 issued by Federal Bank, Chandni Chowk Branch, New Delhi. This release order is issued in compliance to the said order. Sd/- 09.08.2014 Assistant Commissioner (Prev.) Customs Hqrs. Patna 13. Apart from the aforesaid explanation in the counter affidavit that was filed by the authorities of the Custom Department on 22.08.2014, it was also stated that the sample, drawn at the time of seizure of the split betel nuts of the petitioners, was sent for edibility test to the C.F.L., Raxaul and the report received had revealed that the sample of split betel nuts of the petitioners was found adulterated and thus, created a doubt with regard to test report of Export Inspection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities on 08.08.2014 on furnishing of Bank guarantee by the petitioners but on account of dismissal of appeal filed by the department the Bank guarantee furnished by the petitioners were also sought to be returned back to them. The aforesaid letter dated 11.11.2014, produced by Mrs. Archana Meenakshi reads as follows: GOVERNMENT OF INDIA OFFICE OF THE COMMISSIONER OF CUSTOMS PREVENTIVE 5TH FLOOR, C.R. BUILDING, BIRCHAND PATEL MARG PATNA:::::::::::::::::::::::::800001 C. NO.VIII (10) 10-Cus/P/H/Seiz/12-13/Part 1 12825 Date:11.11.2014 To, Kalu Ram Kudlia M/S Overseas Enterprises 2263/68, 1st Floor, Room No. 11 Gali Raghunandan, Naya Bazaar, Delhi-110006 Sir, Sub: Release of Bank guarantee No. 1BG54159 and surety Bond dated 09.08.2014 for ₹ 9,28,200/-, and ₹ 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act upon the provisional order of release dated 28.03.2013 and whether for such laches on the part of the concerned officers/employees any action had been taken against them or was proposed to be taken. The order of this Court dated 02.12.2014 being relevant is quoted herein below: Heard learned counsel for the parties. This Court is literally perplexed if not shocked with the approach of the authorities of the Custom Department inasmuch as an order of provisional release of the goods of the petitioner was passed way back on 28.3.2013 and yet the same was released in favour of the petitioner only on 9.8.2014. Learned counsel for the petitioner submits that in the interregnum period of nearly 1 years the quality of the goods has virtually deteriorated to such an extent that it cannot be now used in 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 1 years to act upon the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 12.03.2014 followed by another letter dated 29.03.2014 requested for release of the goods provisionally with any terms and conditions provided the goods were found in proper condition. 10. That it is further submitted that on the request of the petitioner, a fresh representative sample was drawn in presence of the petitioner on 12.03.2014, which too was reported as adulterated by the Central Food Laboratory vide their report dated 21.04.2014. 11. That it is further submitted that the show cause notice issued to the petitioner was adjudicated vide order in original issued on 29.11.2013, whereby the Adjudicating Authority dropped the proceedings initiated vide the show cause notice dated 08.04.2013 which was communicated to the petitioner vide letter C.No. VIII(10) 12-CUS/ADC/Hqrs/2013/2105-06 dated 29.11.2013. 12. That 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become clear that the aforesaid order of provisional release dated 08.08.2013 on furnishing Bank guarantee as was also even earlier directed in the order of provisional release dated 28.03.2013 came to be passed only because of filing of the writ petition by the petitioners on 5.8.2013 and an explanation sought by this Court on 6.8.2013, inasmuch as such release even otherwise could have been made earlier in terms of the aforesaid order of provisional release dated 28.3.2013. 22. Thus, when this Court was not at all satisfied with the aforementioned explanation in the supplementary counter affidavit filed by the Commissioner of Customs, an assurance was given by him in person to this Court on 16.12.2014 by filing a second supplementary counter affidavit that he had instituted an inquiry to be conducted by Mr. K.Ramamurti, Additional Commissioner, Customs for fixing responsibility 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 faul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prepared 17.2.2013. The petitioner no.2 had thereafter appeared on 6.3.2013 with all the papers and documents to show that import of the seized betel nuts were made in authorized manner and, as such, were fit to be released in favour of the petitioners. This was followed by his another application filed before the Commissioner of Custom, Preventive, Patna dated 12.3.2013 wherein the petitioner no.2, while undertaking to face the confiscation proceeding under Section 111 of the Custom Act, had specifically brought to the notice of the Commissioner of Custom that the seized goods were perishable in nature and had to be stored with proper precaution, inasmuch as, any sort of damage caused by improper and long storage could result in reduction of the value of the goods and, as such, the prayer of the petitioner for release of the seized betel nut, which were legally 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seized betel nuts reconducted at Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad without any delay so that the order of the provisional release could be acted upon. It is also on record that pursuant to the aforesaid interdepartmental order dated 29.4.2013, specimen of seized articles were sent to the Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad on 7.5.2013 for submitting the test report and even a reminder was sent for submission of such report on 21.5.2013. 30. While the report of Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad was being awaited, the Superintendent, Adjudication, in his communication to the Superintendent, Preventive, Custom, had explained the request of the petitioner no.2 for release of the seized betel nut to the petitioners on his undertaking by making the consignment fit for human consumption. The Superintendent, Preventive, Custom was accordingly 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. When this prayer of the petitioner no.2 also did not evoke any response, he had filed an application on 12.3.2014 before the competent authority who had passed the order of provisional release on 29.3.2014, namely, Additional Commissioner, Custom and in his such application dated 12.3.2014, the petitioner no.2 had again undertaken to comply the prescribed terms and conditions for such provisional release as incorporated in the earlier order dated 29.3.2014. On such application of the petitioner no.2, the sample of the seized betel nut was once again taken on 12.3.2014 and thereafter the authority of the Custom Department on 21.3.2014 had claimed to have sent another reminder to the Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad for submission of the desired report in respect of seized betel nut of the petitioner sent on 7.5.2013. 34. It also transpires from the documents that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that that report of Mr. K. Ramamurthy, who himself was a party to the decision either in reviewing or in filing appeal against the final order of adjudication in confiscation proceedings dated 29.11.2013, should in fact not have been associated with such enquiry by Mr. Kishori Lal, the Commissioner, Custom because somewhere for part of the delay in releasing of the consignment at least from the date of 29.11.2013 to the date of filing of the appeal i.e. 23.4.2014 he also being instrumental in causing delay in the eventual release of the seized articles of the petitioners could not have been fair and impartial in fixing the responsibility on erring officials of the Custom Department. 39. As a matter of fact this Court is thoroughly disappointed with the conclusions arrived by Mr. K. Ramamurthy in his inquiry report as already quoted above in paragraph no. 23 of this judgment. 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n obstructing release of seized articles of the petitioners on the ground of pendency of alleged review of the final order of confiscation proceedings dated 29.11.2013 as well as in filing of the appeal after a period of nearly four months and thus had become responsible with other officers in not releasing the seized articles despite the final order of adjudication in the confiscation proceedings dated 29.11.2013 in favour of the petitioners. 43. This Court in fact is amazed with the approach of Mr. K. Ramamurthy when he describes in his conclusion in the Enquiry Report that there was a bonafide intention on the part of the Custom Department in releasing of the goods because it was awaiting the verification of the sample report for a period over one year. As noted above, the first report of F.S.L. was received on 4.4.2013 and on that basis the officers of Custom Department had set 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el nuts cannot be released. However, as per the direction of the competent authority you are requested to get the sample test of the said seized betel nuts reconducted at Food Analyst, Bihar, P.H. Lab, MADA, Dhanbad without any delay so that the further procedures can be carried out smoothly. Sd./- 29.4.13 Superintendent (Adjn.) Customs (P) Hqrs. Patna 46. That apart even if the story of so called review of the provisional order of release dated 28.3.2013 by the so called order dated 29.4.2013 is to be accepted, that again cannot be justified in law, inasmuch as such a statutory order dated 28.3.2013 on the application of the petitioners dated 6.3.2013 in terms of Section 110A of Custom Act was passed and there is no power of review vested in the authority under any provision of Customs Act. Secondly, if for any reason whatsoever the said order was sought to be allegedly reviewed though no order of such 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed in favour of the petitioners by the competent authority in exercise of power under Section 110A of the Custom Act way back on 28.3.2013. 49. This aspect of the matter, in fact, becomes more clear from the final order in confiscation proceedings (running into 42 pages) passed by the adjudicating authority dated 29.11.2013 wherein probably each and every thing, that had happened in the department from the dated of seizure on 16.2.2013, has been recorded but not a word has been said about the existence of this so called review order dated 29.04.2013 passed in the file, as noted in the report of Mr. K.Ramamurthy. Let it be kept in mind that the adjudicating authority had also taken into account the report of C.F.L. dated 3.4.2013 and had rejected the same while passing his final order. The relevant portion of the final order dated 29.11.2013 dropping the confiscation proceedings against the petitioners, in fact, reads as 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 (Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndo-Bangladesh border and that the notices have already declared the consignment before the Commercial Tax authorities before interception as one legally imported. Further, no investigation appears to have been made on the notices statutory documents w.r.t. rest of the consignments. Further, the investigation done at Petrapole and at Bangaon by the seizing unit has not revealed any new facts so as to hold the consignment as contraband. Under the circumstances, I find it difficult to go by the department's contentions that the seized goods are smuggled in nature. As regards the contentions that the variance in two reports from the CFL, I find that this contention alone is not sufficient to establish that the seized goods were smuggled in nature. Firstly, the samples are by nature samples only and cannot be said to represent the entire consignment practically. Secondly, there is indeed a time gap in drawal of two samples and chances 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory order under section 110A of the Customs Act and could not have been ignored on a mere ipsi dixit of the officials of Custom Department. 53. This Court in fact has no iota of doubt that there was absolutely no justification at all either on fact or in law in not giving effect to the order of the provisional release dated 28.03.2013. The plea of the respondents that they had received some adverse report of C.F.L., Raxaul with regard to adulterated quality of the betel nuts dated 04.04.2013, could not be given them any power to review or recall the order of provisional release passed by the competent authority in exercise of power under Section 110(A) of the Act. 54. What would still make the matter worse for the authorities of the Custom Department is that after the adjudication in confiscation proceedings, in terms of Section 122 of Custom Act, had been brought to an end in favour of the petitioners on 29.11.2013 and there was no order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sect Damaged Betel Nut (By Count) DGHS MANUAL 17.10% 5. Rodent Hair Excreta DGHS MANUAL Absent 6. Insect DGHS MANUAL Present 7. Added Colouring Matter DGHS MANUAL Absent OPINION: The sample of Split Betel Nut (Proprietary Food) is found adulterated in respect of tests mentioned above. Place: Raxaul Dated 03.04.2013 Sd./- (Dr. Debadutta Mishra) Officer-in-Charge CFL, Kolkata (Extension Centre, Raxaul) 58. There is a valid reason for this Court to reject the said analysis report dated 3.4.2013 because subsequently when after more than one year, the samples of the same betel nuts were sent to the same C.F.L. Laboratory, Raxaul, the same person, namely, Dr. Debdutta Mishra, the Officer-in-charge, C.F.L., Kolkata in his report had given a complete different picture as would become clear from reading of such report dated 16.4.2014 reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic but then in the last report dated 16.4.2014, the betel nuts were not declared to be adulterated and now the same officer-in-charge, C.F.L., Raxaul had found them to be not conforming to the prescribed stand and on the ground of its being damaged and all discoloured. 60. It is here that the content and quality of the report of C.F.L., Raxaul dated 24.4.2014 itself becomes questionable, inasmuch as, in the first report dated 3.4.2013 damaged betel nuts were found to be only 22.80% whereas damaged discolored nuts including insect damaged betel nuts in the second report were found to be 62.18% which by itself would be a proof of the fact that such betel nuts on account of long storage in not a proper condition for a period of more than one year had become further damaged by exceeding the ratio around 40%. What would really also go in favour of the petitioners is that in the period of one year, the quality of betel nut had deteriorated, inasmuch as, rodent hair excreta were found to be absent in the report dated 3.4.2013 but found to be present in the report dated 16.4.2014. Yet again, the added coluring matter in the report dated 3.4.2013 was found to be absent but surprising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Centre, Raxaul), Bihar. According to the said report, the sample was adulterated by insect affected betel buts and damaged betel nuts. The application was contested by the writ petitioners. According to the writ petitioners, the betel nuts were being sent for processing at Kanpur and it was not meant for human consumption until processed. The learned single Judge has, under the impugned order dated 24th July 2013, dismissed the application for modification. Therefore, this Appeal. Learned advocate Mrs. Nivedita Nirvikar has appeared for the appellant Union of India. She has strenuously urged that the food articles which are not safe for human consumption should not be allowed to be sold in the market. In support thereof she has relied upon the judgment of the Hon ble Supreme Court in the matter of Pyarali K. Tejani v. Mahadeo Ramchandra Dange Others, (AIR 1974 SC 228). She has also relied upon the Instruction dated 15th June 2001 issued by the Government of India, Ministry of Finance, Department of Revenue in respect of the clearance of the food articles, drawing and testing of samples to the effect that pursuant to the Notification issued by the Director General of Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en place after releasing of betel nuts on 09.08.2014, inasmuch as, the appeal filed against the adjudicatory final order in confiscation proceedings dated 29.11.2013 was also eventually dismissed on 29.11.2013 some time in November, 2014 which led to return of bank guarantee to the petitioners in view of the order dated 11.11.2014 as quoted above in paragraph no.16 of this judgment. 64. As a matter of fact, there are four phases of time period in this case which was required to be explained by the authorities of the Custom Department in respect of not releasing the seized betel nuts of the petitioners:- (i) From 28.03.2013 to 28.11.2013 inasmuch as the order of provisional release dated 28.3.2013 in favour of the petitioners passed by the competent authority, had never been cancelled though the adjudication proceedings had continued up to 28.11.2013. (ii) From 29.11.2013 when the final order of adjudication in favour of the petitioners holding the confiscation proceedings itself to be bad and not maintainable to 23.03.2014 when the appeal was filed by the Custom Department against the aforementioned order of final adjudication passed by the competent authority dated 28.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly amazes this Court is that even after the adjudication in confiscation proceedings were itself dropped, by the final order dated 28.11.2013 when there was no sanction of law under any provision of Customs Act which would have empowered the authorities of the Custom Department to withhold the release of the seized articles of the petitioners inasmuch as the Custom Department and its authorities in fact had no power in law to keep the seized articles in their possession after passing of the final order of adjudication dated 29.11.2013, they still did not release the articles despite the petitioners' application dated 2.12.2013 on a plea that such articles of the petitioners could be released only after the correctness of final adjudicatory order dated 29.11.2013 was accepted by the competent reviewing/appellate authority. This Court again does not find any such provision in the Act which could have enabled the authorities of Customs Department to sit over the final order of adjudication in confiscation proceedings dated 29.11.2013. 68. Let it be in this regard also kept in mind that in spite of repeated pressing for release of betel nuts by the petitioners, the Department, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Custom Department to detain the release of the betel nuts in favour of the petitioners. 71. Thus the fact remains that only after the petitioners had filed writ petition on 05.08.2014 and an order was passed by this Court on 06.08.2014, directing the standing counsel for the Customs Department to disclose the reasons for not releasing the goods by filing the counter affidavit that the conditional order of release on furnishing of taking bank guarantee and bond by the petitioners had been passed on 8.8.2014 which in turn would go to show that this could have been done even on 24.4.2014 if not on 29.11.2013 or 28.3.2013. Thus, the reason for not releasing the goods on account of pendency of the appeal is also a mere hoax and not permissible in law. The manner in which the authorities have in fact sought to keep the petitioners deprived of the seized goods for a period of almost one and a half year, therefore, cannot be approved by this Court. 72. In such a situation, when no plausible much less acceptable explanation has come forward on behalf of the authorities of the Custom Department, it has to be essentially held that there was gross unreasonable delay in release o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows:- Kishori Lal I.R.S. Commisisoner Government of India Mionistry of Finance/Department of Revenue Office of the Commissioner Customs (Prev) Patna 5th Floor, C R Building B.C. Patel Path Patna-800 001 Ph. 0612-2504998, Fax 0612-2505506 F.No.II(39)35-Cus/ET/Commr.cell/Misc/14 Date: 09.12.2014 My dear Ramamurthy As you may be aware that the personal appearance of the undersigned was ordered by Hon ble High Court Patna during the course of hearing of the petition CWJC No. 13382/2014, filed by M/s. Over Seas Enterprises oths. In compliance to this order the undersigned appeared in the court of Hon ble Justice M.K. Jha on 09.12.2014, where it transpired that the court wanted to know as to why the consignment was seized when no contravention has been found in the adjudication proceedings and why there has been delay in the provisional release of goods to the petitioner. You are therefore requested to inquire into the matter and submit the inquiry report within seven days hereof, indicating therein the names of the officers who have been at fault, so that the disciplinary action may be initiated against them. With best wishes Sincerely yours Sd./ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. 78. Having held so, the Apex Court in the case of Lucknow Development Authority (supra) had also laid down law as with regard to fixing responsibility on the erring government officials in the following terms:- 11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socioeconomic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modem society no authority can arrogate to itself the power to act in a manner which is arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in this regard had held as follows:- 2. In this view, while dismissing the applications seeking condonation of delay, we direct that enquiry be made forthwith by the State Government as to the person responsible for this state of affairs, recover from such person the costs involved in filing these petitions and submit the report to this Court within a period of four weeks. 80. In the case of Delhi Aristech Services (P) Ltd. (supra) relating to the lapses by the public officials in the land acquisition resulting into huge loss to the government exchequer on account of negligence and/or overt act of the officials had also held as follows:- 213. These authorities are instrumentalities of the State and the officers are empowered to exercise the power on behalf of the State. Such exercise of power attains greater significance when it arises from the statutory provisions. The level of expectation of timely and just performance of duty is higher, as compared to the cases where the power is executively exercised in discharge of its regular business. Thus, all administrative norms and principles of fair performance are applicable to them with equal force, as they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ern in different cases from time to time in relation to such matters. In the case of State of Andhra Pradesh v. Food Corporation of India [(2004) 13 SCC 53], this Court observed that it is a known fact that in transactions of Government business, no one would own personal responsibility and decisions would be leisurely taken at various levels. 218. Principles of public accountability are applicable to such officers/officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, which are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects, not only in the decision making process but in the final decision as well. Every officer in the hierarchy of the State, by virtue of his being `public officer' or `public servant', is accountable for his decisions to the public as well as to the State. This concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance. 81. Recently, the Full Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who are primarily guilty in such matters, and who exploit the jobseekers taking advantage of their hardship are equally punished when such illegal appointments are brought to the notice of the government. I, therefore, direct that in each and every case where an appointment is said to have been illegally made, in the sense that the rules governing the appointment is made by flouting the law in such a manner that the motive of the appointing authority becomes suspect, simultaneously with the cancellation of such illegal appointment, action must be initiated against the appointing authority, and in appropriate ccases they should be immediately suspended pending departmental proceedings. If such action is not taken, courts will doubt the genuineness of the reason shown by the government for cancellation of such appointment. I direct that this should be complied with by the government in each and every case wehre an appointment is sought to be cancelled on the ground that it was illegally made in circumstances which give rise to a suspicion that the appointment was made on extraneous consideration, including money. 42. Court orders are not mere platitudes or idealistic rhetoric i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall also submit his action taken report to the registry of this Court on or before 30th of June, 2016. 85. With the aforementioned observations and directions, this writ application is allowed with a cost of ₹ 25,000/- quantified by this Court for coercing and compelling the petitioners to file this writ petition for release of their seized betel nuts to be paid by the Respondents to the petitioners within a period of three months from today. 86. It is, however, made clear that irrespective of initiation and conclusion of the aforesaid proceedings against the erring officials of Customs department of Patna zone by the Chairman of Central Board of Excise and Customs, the payment of the amount of ₹ 14,69,650/- alongwith interest at the rate of 9% per annum from 28.3.2013 to 9.8.2014 must be made to the petitioners within a period of three months from today, failing which the amount of interest on the amount of ₹ 14,69,650/- shall stand enhanced from 9% per annum to 18% per annum from 28.3.2013 till the date of its actual payment. 87. Let a copy of this judgment be sent immediately to not only the Chairman of Central Board of Excise and Customs Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
