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TMI Blog1986 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 59(2) of the Customs Act, 1962. The shipping bills were presented in the Customs Export Documentation Counter on 9th May, 1983. The said bills were assessed on condition that the goods for shipment should be allowed after opening and inspection of selected two packages weighing the nett contents and ripping open and inspection of 8 more selected cases and after verifying the description of the goods with that of the declarations made in the shipping bills. 3. After assessment, the relative documents in original along with other documents were handed over to the Customs House Agents for effecting shipment of the goods on completion of the inspection. The Customs House Agents on behalf of the exporters applied for posting of officers on overtime for inspection of the goods on 11th May, 1983. Till 9 p.m. on 11th May, 1983, the shipping bills were not presented for examination. The vessel was to sail on 13th May, 1983. Till 4 p.m. on 12th May, 1983 the shipping bills were not at all presented. It was then decided to open and examine all the packages for verification of the contents thereof. The examination was conducted in the presence of the Customs House Agent's representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper elephants. As stated above, this is a banned item from export since the goods, namely, snake skins are not allowed for clearance for exportation under Section 51 of the Customs Act. 8. Enquiries at the premises No. 67 Arunachala Naicken Street, Chintadripet, Madras-2 revealed that the room in the ground floor was let out to the petitioner. The goods were packed in the said room by one Mr. M. Ramu and his wife deployed by the petitioner. The invoices were handed over to the Customs House Agents at the directions of the petitioner and one Kesavan for processing the shipping bill. Interrogation of the driver of the van TMG 8604 wherein the goods were transported to Air Cargo Complex revealed that the petitioner was present at the time of removal of the goods from Arunachala Naicken Street. The goods were examined on 28th April, 1984 in the presence of the Customs House Agent's representative. 9. On further enquiries, the Customs Department came to understand that one Thyagu, son of the petitioner, is the proprietor of Gaydev Exports. It was further learnt that Thyagu was introduced to Indian Overseas Bank at the Esplanade Branch by the petitioner and on 3 or 4 occasions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases, Section 119 of the Customs Act would get attracted. Consequently,if they are liable to confiscation, there is no duty cast on the Department to return them under Section 110(2) of the Act. 14. In order to appreciate the rival contentions, let me refer to the important provisions of the Customs Act which may have a bearing on the issue in question. 15. Under Section 8 of the Act, the Collector of Customs may approve landing places and specify limits of Customs area. Section 50 of the Act states that the exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. Sub-section (2) is as under: "The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents." 16. In the Handloom Coloured Cotton Towels case, (I call it so), the shipping, bill issued by T.G. Elumalai Co. gave the description of the goods as "Handloom Coloured Cotton Towels". Therefore, the truth of the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period not exceeding six months." (The rest of the sub-sections are omitted as not necessary) It is not the case of the Department that it was not practicable to seize the goods and therefore the Department issued an order of detention. Therefore, the proviso to Section 110(1) extracted above has no application to the facts of this case. It really passes my comprehension as to how there could be a confiscation of goods without seizure because Section 110(1) gives power to seize and it is only by reason of that power, seizure was effected prior to confiscation. As I said above, by virtue of Section 113(d) and (e) extracted above, the goods are liable to confiscation. 18. It is common case that snake skins are banned export. Therefore, their confiscation was permissible. If that be the position, it is impossible to contend that without effecting seizure there was confiscation. The net result is there was a confiscation. If there was a confiscation, the procedure laid down under Section 110(2) ought to have been followed in that if the goods were seized under sub-section (1) of Section 110, it is incumbent upon the Department to issue notice in respect of those goods under Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile goods in all the 44 cases at the time of entrustment to the Clearing Agents. My client was not aware of what happened after the entrustment to the Clearing Agents. My client is not aware of and never had any transactions in snake skins. " My client is absolutely certain that some third party had tampered with my client's packages. My client has instructed me to take legal action against the lorry transportpr My client is prepared to appear before you along with me as his advocate and to give the statement before you in the presence of myself, his advocate. The Supreme Court has held in the case reported in AIR 1979 SC 447 that when a suspected or accused person is examined by the Customs Officers, he is entitled to have the assistance and presence of his advocate during the examination and you have no right to refuse the person to be assisted and to be accompanied by his advocate. The relevant portion of the judgment in paragraph 3 at page 448 in the above case reads as follows: "It appears that when the interrogation of the detenu was going on while he was in custody of the Customs Officials, Smt. Devyantiben Shah, an advocate of the detenu addressed a letter as also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence. The Miranda decision (1966) 384 US 436 has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Art. 20(3) and Art. 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Over-reaching Art. 20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to "Police Station Lawyer" system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project.' My client is seriously apprehensive that your officers may violate my client's fundamental right to legal assistance whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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