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TMI Blog2025 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... vail over the Rules. Thus, the word "carried on the person up to Rs. 50,000/-" is clearly beyond the scope of the Act and it cannot be given any effect since it is contrary to the provisions of the Statute. Thus, it has to be construed only for the articles, which have not been mentioned in Annexure-1 and carried in the accompanied baggage of a passenger. In such case, the application of Baggage Rules, 2016, would not arise. Thus, the jewelery worn by the passenger will not fall within the provisions of the Baggage Rules, 2016. While enacting the provisions of the Customs Act, the Parliament has consciously excluded the jewels worn by the passengers. If there is any intention to put all the passengers into hassle, disrespecting their proprietorial rights, dignity, forgoing the customs, against the fundamental rights, let the Parliament take a decision and amend the provisions of the Act. Till then, the Officers have to apply their minds with regard to detaining the passenger and the gold worn by them as the same would not fall within the purview of the Baggage Rules, 2016. The Doctrine of ultra vires states that the Rule making body must function within the purview of the Rule ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alse information to foist a false case against the petitioner, the confiscation order was also passed, as an ex parte order, based on the false information available in the said Mahazar. iv) The manner, in which the jewellery was brought by the petitioner, as stated in the Mahazar is that it was brought under the sleeve, however, in the affidavit and counter, it was clearly stated that the petitioner worn the jewellery at the time of arrival. Due to the said contradiction of the respondents, it is clear that there was a change in the stand of the respondents with regard to the manner, in which the gold was carried by the petitioner, from proceedings to proceedings. v) As per the counter, in this case, the seizure was made due to the violation of Baggage Rules, 2016. However, this Court found that the question of violation of the Baggage Rules, 2016, would not arise since the Baggage Rule contains a provision as "carried on the person", which this Court declared that the said provision in the Baggage Rule is ultra vires the provisions of Section 79 of the Customs Act, 1962. The respondents are directed to release the goods of the petitioner within a period of 7 days from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to treat the petitioner, her in-laws and the 3 children in an arrogant manner and ordered the petitioner to remove her Thaalikodi and hand over the same to the 2nd respondent. However, she refused and begged the 2nd respondent not to remove her Thaali since it is a sentimental ornament being a symbol and token of marriage. In spite of her request, the 2nd respondent-S.Mythili along with her subordinates had forced the petitioner and snatched her Mangalya Thalikodi from her neck. Seeing the formidable behavior of the 2nd respondent, her in-laws had also begged the officer not to do so. But they were man-handled and pushed on the floor. The 3 children started screaming and shivering with fear and at one point of time, her mother-in-law had fainted and fell down on the floor. 6. Without bothering about anything, the 2nd respondent forced the petitioner and her in-laws to sign on some typed papers, in which it has been mentioned that the ornaments seized from them are not sentimental but smuggled things. However, the petitioner and her in-laws did not agree for their unfair demand and keep begging them repeatedly. Thereafter, they were not at all provided or permitted any food or eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Baggage Rules, 2016, is beyond the scope of said Section 79 of the Customs Act, 1962. 11. Further, he would submit that in the present case, the allegations of the petitioner has not been specifically denied by the respondents in their counter. Normally, the averments in the affidavit, which were not specifically denied, are deemed to be admitted by the respondents. In such case, it is crystal clear that the Mahazar was prepared by the respondents on their own and hence, they had forced the petitioner to sign the Mahazar without even allowing them to go through it. Based on the said Mahazar, the confiscation order has been passed by the concerned Officers without analysing the real facts of the cooked up case against the petitioner. 12. The counter filed by the respondents varies from the confiscation order on the aspect of the manner, as to how the gold was carried by the petitioner. Further, before passing the confiscation order, no show cause notice has been provided and no opportunity of personal hearing was given to the petitioner, which is purely violation of principles of natural justice. Therefore, he would contend that the entire seizure and confiscation proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d her family/relative, ensuring no harm was caused to any individual and the entire proceedings were conducted smoothly in a cordial atmosphere and also the petitioner along with her relatives were offered food, which they declined to have. 18. Further, he referred the Baggage Rule since the baggage carried by the petitioner is non-bonafide and she is not permitted to carry the gold either in person or in baggage as per the Baggage Rules, 2016, the proceedings were initiated against the petitioner and when they tried to pass through green channel with an intention to smuggle, they were stopped and further actions were taken. Under these circumstances, the petitioner has to prove before the Adjudicating Authority as to how her jewels are not liable for confiscation, which requires appreciation of evidence especially as to why the petitioner did not declare the jewels with the Authorities and as admitted by her in the statement recorded under Section 108 of the Customs Act, 1962, if she brought it for monetary consideration. 19. Further, he had referred the judgment of the Hon'ble Division Bench of this Court rendered in CMA.No.1716 of 2020 [The Principal Commissioner or Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed. The said "thaalikodi" is about 11 soverigns i.e., 88 grams. As per our customs, normally people used to wear "thaalikodi" up to 16 soverign, in such case, it would be normal for any middle class family to wear "thaalikodi" weighing around 11 sovereigns. 24. It was also found by the respondents that the petitioner was wearing gold bangles weighing 45 grams. As per our customs, it is normal for a newly married person to wear the aforesaid quantity of gold. When the officers are conducting search, they have to respect the customs of every religion of this Country. 24.1 In such case, it is very unfair on the part of the 2nd respondent to remove the "thaalikodi" from the petitioner, who is yet to start her marriage life with her husband at France in the last week of January, 2024. 24.2 Without understanding the importance of "thaalikodi" (mangalsutra), the 2nd respondent had asked the petitioner to remove the same and since she refused to remove it, the Officials of the 2nd respondent had snatched it from her neck. The act of the 2nd respondent amounts to annihilate the customs of Hindu religion and the culture of this Country. At any cost, the said act of the 2nd respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iour of the 2nd respondent is unbecoming as an officer. 24.4 Wearing "thaalikodi" is culture of this country and asking a passenger to remove it, or forcefully snatching it from them, would certainly amount to annihilate the culture and at any cost, such act cannot be tolerated. Therefore, such irresponsible and rude behaviour of the 2nd respondent is clearly unbecoming as an officer and the same requires appropriate enquiry and action. 25. Further, in the present case, though they have stated that the proceedings were conducted in the respectful manner, there is no specific denial from the respondents for the averments made by the petitioner in their affidavit. It is a well settled law that when the averments in the petition were not denied specifically, it would amount to deemed to be admitted on the part of the respondent. In the present case, the following averments were not denied specifically by the respondent in his counter dated 28.03.2024: a) When the Customs officers checked the petitioner's belongings, she was wearing thaalikodi about 88 grams and gold bangles about 45 grams, she said that she just got married and came down to India for pilgrimage in Tamil nadu a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents in their counter dated 28.03.2024 except general and bald denial of the averments in the writ affidavit. There was no specific denial to the above averments made against the respondents. It is a settled law that if the allegations raised against the respondents have not been specifically denied by them in their counter, it will be deemed to be admitted. 27. The term "Counter Affidavit" by its nomenclature describes that it is a counter to the affidavit filed in support of the writ petition. It denies the averments contained in the affidavit and at times there may be concessions in the counter affidavit too. When specific allegations are raised in the affidavit, they have to be specifically denied or refuted in the counter affidavit. Mere bald denial or the catch phrase "All allegations are denied in entirety except those specifically admitted herein"/ "At the outset deny all the allegations and averments contained in the affidavits filed in support of the above writ petition save those that are specifically admitted hereunder", would not absolve the deponent of the counter affidavit. When an affidavit contains a positive averment of facts or other details, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previously filed by such party." 30. A mere reading of Rule 24(1) would make it clear that the rules applicable to affidavits as mentioned in Rule 6 shall apply mutatis mutandis to counter affidavits, reply affidavits and other affidavits. Therefore, Rule 6(2) mandates that the affidavit should set forth (a) facts leading to the filing of the Petition; (b) facts giving jurisdiction to the High Court to entertain the Petition; (c) the grounds, in case of a Writ Petition; and (d) the interim relief, final relief, it is obligatory on part of the deponent of the counter affidavit to specifically deny the averments raised. 31. When several allegations, against the 2nd respondent/Mythili and her subordinates, have been raised in the affidavit of the petition and the counter affidavit did not contain anything to specifically deny allegation/averments, which were made against the respondents except the general and bald denial, then it leads to the conclusion that the respondent or the deponent has not successfully denied the allegation. What applies to a deponent of an affidavit as per the rules applies to a deponent of the counter affidavit too. 32. In terms of Section 58 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder her clothes." 35. The above 3 statements, which were recorded in the confiscation order, shows three different version, i.e., in the 1st place, it has been stated that the jewels were worn on her concealed in her full sleeves, in the 2nd place, it has been stated that metal bangles were found from her sleeves and in the 3rd place, it has been stated that the jewellery were recovered from under her sleeves. However, contrary to the above statements, at paragraph No.3(ii) of the counter, it has been stated as follows: "3) ii. …......During the personal search, she was found wearing two gold bangles and three gold chains of 22K purity, collectively weighing 166 grams." 36. The real fact is that 2 gold bangles and one Thaalikodi were worn by the petitioner at the time of arrival. But the same not been stated in the confiscation notice, which was issued based on the falsely created Mahazar, wherein it was stated as if the jewels were concealed under the sleeves and brought illegally by the petitioner. 37. Therefore, the truth has come out in the form of counter, whereas falsification of the records, such as preparation of the Mahazar, stands confirmed by virtue of refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of "Baggage" for the purpose of Baggage Rules, 2016 is wider than the definition of "Baggage" under Section 2(3) of the Customs Act, 1962. The relevant portion of the judgment is as follows: "A reading of the definition of "Baggage" under the Customs Act, 1962 and the Baggage Rules would appear to suggest that the definition of "Baggage" for the purpose of Baggage Rules, 2016 is wider than the definition of "Baggage" under Section 2 (3) of the Customs Act, 1962." 42. Though the Hon'ble Division Bench has arrived at the above conclusion that the definition of "baggage" under the Baggage Rules, 2016 is wider than the definition of "baggage" under the Customs Act, 1962, it had no occasion to deal with the aspect as to whether the Baggage Rules, 2016, can override the Statute (Section 79 of the Customs Act, 1962), since no issue was framed and no arguments were made on that aspect. 43. In the present case, the learned counsel appearing for the petitioner has made arguments on the aspect that Rule 3 of Baggage Rules, 2016, is beyond the scope of the provisions of Section 79 of the Customs Act, 1962 (Act). Therefore, this Court is bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the baggage". For the purpose of carrying out the provisions of this Section, the Section 79(2) enables the Central Government to make the Rules as follows: i) The minimum period for which any article has been used by a passenger or a member of the crew for the purpose of clause (a) of sub-section (1); ii) the maximum value of any individual article and the maximum total value of all the articles which may be passed free of duty under clause (b) of sub-section (1); iii) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty. 47. From the reading of the above, it is clear that the Act enables the Central Government to make the Rules only with regard to the baggage. At this juncture, it would be apposite to extract the definition of baggage under the Act, which reads as follows: Section 2(3) of the Customs Act: (3) "baggage" includes unaccompanied baggage but does not include motor vehicles; 48. A reading of the above definition would show that baggage includes unaccompanied baggage and does not include motor vehicles. At this juncture, it would also be apposite to extract Rule 3 of the Baggage Rules, which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (b) includes the articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are 'carried on the person' or in the accompanied Baggage of the passenger 51. The Customs Act, 1962, enables the Central Government to make Rules to the extent of the articles carried in the baggage of a passenger and not for the articles, which were carried on the person and hence, the inclusion of the word "carried on the person" is beyond the scope of the provisions of Section 79 of the Customs Act. 52. When the provision of the Rule is beyond the scope of the provisions of the Act, only the provision of the Act will prevail over the Rules. Thus, the word "carried on the person up to Rs. 50,000/-" is clearly beyond the scope of the Act and it cannot be given any effect since it is contrary to the provisions of the Statute. Thus, it has to be construed only for the articles, which have not been mentioned in Annexure-1 and carried in the accompanied baggage of a passenger. In such case, the application of Baggage Rules, 2016, would not arise. Thus, the jewelery worn by the passenger will not fall within the provisions of the Baggage Rules, 2016. 53. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made the Rules by traveling beyond the scope of the Act, which would amount to ultra vires. In such case, the Statute would prevails over the Rules. When such being the case, the Statute referred only with regard to the baggage and therefore, the Rule has to be confined and read only with regard to the baggage and not with regard to the articles "carried on the person". 59. With regard to the above aspect, in the judgment of the Hon'ble Apex Court rendered in Naresh Chandra Agarwal vs. Institute of Chartered Accountants of India and others reported in 2024 SCC OnLine SC 114, it has been held as follows: "35. From reference to the precedents discussed above and taking an overall view of the instant matter, we proceed to distil and summarise the following legal principles that may be relevant in adjudicating cases where subordinate legislation are challenged on the ground of being 'ultra vires' the parent Act: (a) The doctrine of ultra vires envisages that a Rule making body must function within the purview of the Rule making authority, conferred on it by the parent Act. As the body making Rules or Regulations has no inherent power of its own to make rules, but derives suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers (Bombay) Pvt. Ltd. v. Union of India [1985 (1) SCC 641], this Court referred to several grounds on which a subordinate legislation can be challenged as follows: "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." [Emphasis supplied] 18. In Supreme Court Employees Welfare Association vs. Union of India [1989 (4) SCC 187], this Court held that the validity of a sub-ordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes." [Emphasis supplied] 62. In the above cases, the Court had held that a Rule Making Authority has to make the Rules within the scope of the parent Act and no Rules shall exceed beyond the scope of the parent Act since it would amount to ultra vires. Thus, in the present case, the Baggage Rule, 2016 will apply only to the baggage and the Rule made to the extent that the article "carried on the person" will not include baggage, which was in excess of powers conferred by the Rule making Authority and would amount to ultra vires. Therefore, the jewelery worn in person will not come under the purview of baggage. 63. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was clearly stated that the petitioner worn the jewellery at the time of arrival. Due to the said contradiction of the respondents, it is clear that there was a change in the stand of the respondents with regard to the manner, in which the gold was carried by the petitioner, from proceedings to proceedings. v) As per the counter, in this case, the seizure was made due to the violation of Baggage Rules, 2016. However, this Court found that the question of violation of the Baggage Rules, 2016, would not arise since the Baggage Rule contains a provision as "carried on the person", which this Court declared that the said provision in the Baggage Rule is ultra vires the provisions of Section 79 of the Customs Act, 1962. 67. For all the above reasons, this Court is inclined to allow this writ petition. Accordingly, this writ petition is allowed and the confiscation order dated 24.04.2024 is quashed. The respondents are directed to release the goods of the petitioner within a period of 7 days from the date of receipt of copy of this order. No costs. 68. Further, the Principal Chief Commissioner of Customs (Tamil Nadu & Puducherry), is directed to conduct the enquiry against the Offici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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