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TMI Blog2025 (2) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, they had clearly proved that the Mahazar was prepared with false information, in order to, fix the petitioners into the case for ulterior notice for the reasons better known to them. This Court suspects that the officials have orchestrated this entire episode in order to divert the attention of the others for the benefit of somebody else. 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. The Doctrine of ultra vires states that the Rule making body must function within the purview of the Rule making authority conferred on it by the parent Act. As the body of making rules or regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Gold ornaments inappropriately seized by the respondent officials vide seizure/detention file Nos.OS No.1569/2003 AIU B, OS.No.1570/2023 AIU B, and OS.No.1571/2023 AIU B dated 30.12.2023. 2. The learned counsel for the petitioners would submit that the petitioners are citizens of SriLanka and had come down to Chennai and landed at Chennai International Airport on 30.12.2023 at 03.30 pm along with 3 children. They planned for pilgrimage, to visit various temples in Tamil Nadu, as it is their custom and tradition. The 2nd petitioner is the daughter-in-law of the 1st petitioner and she was newly married to one Jeyakanth/son of the 1st petitioner. The 3rd petitioner is the daughter of the 1st petitioner. The details of the family members, who had arrived at Chennai on 30.12.2023, are as follows: S.No Name Age Relation to petitioner 1 Arasu Inbamathi 60 1st petitioner 2 Thanushika 30 2nd petitioner 3 Kirushalini 39 3rd petitioner 4 Abilin Reegan 8 5 Akshara Reegan 6 6 Arush Reegan 4 Children of 3rd petitioner 3. While passing the customs, the officials of the respondent had checked their belongings and questioned about their gold ornaments totally weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 5 hours of detention. 7. In spite of expressing the petitioners' genuineness and the purpose of coming to India, the officials had neglected and refused to return their jewels. Since the 2nd petitioner has to live with her husband, if the jewels are not returned to her, her life will be in distress as the jewels are her "thaali and shridanam", which are connected with the sentiments, tradition and culture. 8. Further, he would submit that the jewels, which are their personal property, are not subject to any irregularities and the same is not in violation of any law. The petitioners are also ready to undertake and expressed her willingness to abide by any condition laid down by the respondents. The details of the jewels are as follows: S.No Name of the person Age of the person Relation to petitioner Grams of gold detained from them Grams of gold as recorded by the respondent 1 Arasi Inbamathi 60 1st petitioner 80 78 2 Thanushika 30 2nd petitioner 140 166 3 Kirushalini 39 3rd petitioner 44 44 4 Abilin Reegan 8 Children of 3rd petitioner 24 (8 grams each) Nil 5 Akshara Reegan 6 6 Arush Reegan 4 Total 288 9. He would contend that thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing 166 grams and the 3rd petitioner worn gold jewels, weighing 44 grams. The said jeweleries were handed over by the petitioners for examination and quantification. Subsequently, the said jewellery being a non-bonafide baggage and the petitioners being foreign national, were ineligible to bring gold jewellery into India either in their person or in their baggage, the same was seized under Section 110 of the Customs Act, 1962, under separate Mahazar proceedings conducted on 30.12.2023. 15. Further, he referred the Baggage Rules, 2016 and would submit that since the baggage, carried by the petitioners, is non-bonafide and they are not permitted to carry the gold either in person or in baggage as per the Baggage Rules, 2016, the proceedings were initiated against the petitioners 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 petitioners have to prove before the Adjudicating Authority as to how their jewels are not liable for confiscation, which requires appreciation of evidence especially as to why the petitioners did not declare the jewels with the Authorities and as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gan 8 Children of 3rd petitioner 24 (8 grams each) Nil 5 Akshara Reegan 6 6 Arush Reegan 4 Total 288 288 20. At the time of search, the officials had seized the "thaalikodi" of the 2nd petitioner without even considering its sentiments. According to the petitioners, it was forcefully 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. 21. It was also found by the officials that the 2nd 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 while travelling. When the officers are conducting search, they have to respect the customs of every religion of this Country. In such case, it is very unfair on the part of the officials to remove the "thaalikodi" from the 2nd petitioner, who is yet to start her marriage life with her husband at France in the last week of January, 2024. 22. Further, in the present case, though they have stated that the proceedings were conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... children to leave the Airport on the next day at 03.30 am. In the early morning, after 12 hours detention without mercy. i) In the Mahazar, the said officials has fraudulently mentioned that the petitioner and her in-laws were allowed to exit the Airport at 08.30 pm on the very same day itself. 23. All the above averments, which are made against the respondents, have not been denied by the respondent in their counter dated 23.07.2024 except the general and bald denial of the averments in the writ affidavit of the petitioner. 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. 24. 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 cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secutively numbered pages by each Respondent. (4) Where a party files affidavits or documents at different stages or times, the pages of such affidavits or documents shall be numbered in continuation of the paper book, if any, previously filed by such party." 27. 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. 28. 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 conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her full sleeves, whereas in the 2nd place, it has been stated that jewels were found from her sleeves. 33. That apart, in the confiscation order passed against the 2nd petitioner, it has been recorded as follows: i) At paragraph No.1 of the confiscation order dated 24.04.2024, it has been stated that "upon search of her person, 2 yellow coloured metal bangles and 3 yellow coloured metal chains were found worn on her hand concealed in her full sleeves also found worn." ii) At paragraph No.3 of the confiscation order, it has been stated that "during the search of her baggage, nothing was found. Thereafter, upon search of her person, 3 nos of yellow coloured metal chains and 2 nos of yellow colour metal bangles were found from her sleeves of shirt and the same was recovered." iii) At paragraph No.11 of the confiscation order, it has been stated that "I find that the passenger had not declared the possession of gold in spite of repeated enquiry and only after search of her person, 3 nos. of gold chains and 2 nos. of gold bangles was recovered from under her clothes." 34. The above 3 statements, which were recorded in the confiscation order, shows three different version, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to deemed to be admitted by them. 40. Further, it appears that the petitioners 1 and 2 have also given a letter dated 22.01.2024 to the Joint Commissioner of Customs, narrating the entire facts and requested for release of goods, however, the same was not considered. 41. Apart from the illegalities in detaining the petitioners, the seizure of gold and the preparation of Mahazar, it is also necessary to deal with the aspect of jurisdiction of the Officers to frame charges against the petitioners based on the Baggage Rules, 2016. In this regard, an order of this Court rendered in CMA.No.1716 of 2020 has been referred by the learned Senior Standing counsel for the respondent. In the said judgment, the Hon'ble Division Bench of this Court has framed an issue as to whether the jewelery worn on the person would constitute "Baggage". 42. The Division Bench had answered the issue by plain reading of the Baggage Rules, 2016 and arrived at a conclusion that in terms of Rule 3 of the Baggage Rules, 2016, the jewelery worn by the passenger, who had arrived from abroad would be considered as "Baggage". However, in the same judgment, the Hon'ble Division Bench has held that the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying out the provisions of this section and, in particular, such rules may specify- (a) 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); (b) 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); (c) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty. (3) Different rules may be made under sub-section (2) for different classes of persons. 46. A reading of the above provisions would show that the proper officer may subject to any Rules made under Sub-Section (2), if any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules. 47. Thus, it states that for any article in the baggage of a passenger in respect of which the said officer is satisfied that it is for the use of the passenger or his family or is a bona fide gift or souvenir; the total value of all such articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. ii) Definition of Baggage under the Customs Act, 1962: "(2)(3) - "Baggage" includes unaccompanied Baggage but does not include motor vehicles; " 50. As discussed by the Hon'ble Division Bench in the CMA referred supra, a reading of the above definition of "baggage" under Customs Act, 1962, and Baggage Rules, 2016, makes it clear that the definition of "baggage" under the Baggage Rules is wider than the definition of "baggage" under the Customs Act. Further, in the Rule it has been stated as follows: "3. Passenger arriving from countries other than Nepal, Bhutan or Myanmar.-An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, - (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the passenger and the gold worn by them as the same would not fall within the purview of the Baggage Rules, 2016. 56. The Doctrine of ultra vires states that the Rule making body must function within the purview of the Rule making authority conferred on it by the parent Act. As the body of making rules or regulations, there is no inherent power of its own to make rules, but such power arise only from the Statute and hence, it must necessarily function within the purview of the Statute. 57. In the present case, the Rule making body had made the Baggage Rules as if they are having inherent power of its own to make rules beyond the scope of the Statutes, and they have incorporated the word "carried on the person" as referred above. 58. The ultra vires may arise in several ways such as :- a) there may be a simple excess of power over what is conferred by the parent Act; b) the delegated legislation may be inconsistent with the provisions of the parent Act; c) there may be non-complaince with the procedural requirement as laid down in the parent Act. In all the above situation, it is the function of the Court is to keep all the Authorities within the confines of the law b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act confers discretion on the officer within whose command the accused person is serving the choice between criminal court and the Security Force Court without any rider, whereas Rule 41 of the Rules specifies grounds for exercise of discretion. Accordingly, it is submitted that this Rule must yield to Section 80 of the Act. We do not find any substance in this submission. 62. In the judgment of the Hon'ble Apex Court rendered in State of Tamil Nadu and Another vs. P.Krishnamurthy and others reported in (2006) 4 SCC 517, it has been held as follows: 16. The court considering the validity of a subordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urning v. Family Publications Service [411 US 356]. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorized end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires": per Lord Russel of Killowen, C.J. in Kruse v. Johnson (1898) 2 QB 91." 20. In St. Johns Teachers Training Institute vs. Regional Director, NCTE [2003 (3) SCC 321], this Court explained the scope and purpose of delegated legislation thus : "A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was stated that though 3 opportunities of personal hearing were provided to the petitioners on 04.04.2024, 08.04.2024 and 12.04.2024, no one has appeared before the respondents and under these circumstances, the confiscation order came to be passed on 24.04.2024. However, this Court is of the view that since the petitioners are SriLankan citizens, the shorter time provided by the respondent is not sufficient. In such case, it is clear that the confiscation orders were passed purely in violation of principles of natural justice and hence, the same is liable to be quashed. 67. Therefore, the confiscation orders dated 24.04.2024 is hereby quashed for the following reasons: i) The confiscation orders were passed without issuing the show cause notice; ii) No proper opportunity of personal hearing was provided to the petitioner prior to the passing of confiscation orders; iii) Since the Mahazar was prepared with false information to foist a false case against the petitioners, the confiscation orders were also passed, as an ex parte order, with the false information available in the said Mahazar. iv) The manner, in which the jewellery was brought by the petitioners, as stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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