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TMI Blog2002 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... as not said to be present in his vehicle yet proceedings were initiated against him. Show cause notices under Section 115, of the Customs Act, 1962 and under Section 72 of the Gold (Control) Act, 1968 were issued to show cause why the vehicle should not be confiscated for carrying contraband gold. Show cause notice were also issued under Sections 112 and 117 of the Customs Act, 1962 and under Sections 74 and 75 of the Gold (Control) Act as to why a penalty be not imposed upon him and the four persons aforesaid by the Collector, Customs and Central Excise, Meerut. All of them submitted their replies to the show cause notices. Vide his order dated 8th January, 1991, the Collector, Customs and Central Excise, Meerut directed confiscation of (a) 6 Gold biscuits of Foreign origin belonging to Sanjeev Kumar under Section 111(d) of the Customs Act and Section 71 of the Gold (Control) Act, directing release of Bank Draft No. 506710, dated 3rd January, 1989 of Rs. 66,018/- in his favour, (b) 4.044 Kgs. of silver ornaments whose ownership was claimed by Ashok Kumar Agarwal under Section 119 of the Customs Act and Section 71(2) of the Gold (Control) Act, however, permitting him to redeem the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contraband items in the boxes below his seat. It was nobody's case that any part of contraband gold, etc., belonged to the petitioner or Kishore Kumar, which was seized from the vehicle and the occupants. Admittedly, Sanjeev Kumar was a friend and neighbour of the petitioner (copy of the statement of the petitioner appended as Annexure-4) who had been on the vehicle several times and it could be very naturally expected that he knew about the boxes constructed under the driver's seat and the front side seat which was quite conspicuous in which the driver kept tools, blankets and dresses, etc., when he was sent out for a number of days. Sanjiv Kumar during interrogation gave the name of Anju Kumar, as the person for whom he was carrying gold, and if the petitioner or the driver were in any manner his accomplices he would have disclosed their names also in his statement. Since the vehicle of the petitioner was being used as a private Taxi its absolute confiscation was illegal inasmuch as no opportunity had been given to the petitioner under Section 115(2) Proviso of the Customs Act for its release on payment of fine. The action of seizure was misconceived as neither of clauses (a) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. (v) Show cause notices dated 12th May, 1989 were issued by the Assistant Collector, Central Excise, Saharanpur. (vi) The matter was adjudged by the Collector, Central Excise, Meerut (copy appended as Annexure C.A-II) and the Maruti car was confiscated after considering all the facts. The Appeal filed by the petitioner before CEGAT, New Delhi against the order of the Collector was dismissed confirming the order of confiscation. Against the order of the Appellate Tribunal the petitioner sought for rectification which plea was considered and rejected vide order dated 15-10-1996 (copy appended as Annexure CA-IV). (vii) The seizure of the vehicle was made under reasonable belief that the same has been used for smuggling and carrying of contraband gold. The seizure and confiscation of the vehicle was strictly as per the provisions of the Customs Act. (viii) The vehicle is registered as a private car and it was used as a private taxi and its confiscation was made after giving proper opportunity to the petitioner. (ix) Anurag Kumar in his statement had denied that the contraband gold was being carried to him. (x) There is no question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 6 of the Counter-Affidavit or its result thereof even during the commencement of hearing of this writ petition before us and has incorrectly relied upon the original Section 115(2) of the Customs Act despite its change (omission) by Finance Act (26 of 1988)? (iv) Whether the statutory Authorities have committed any error of law in passing that order which requires correction by this Court under Article 226 of the Constitution of India? (v) Whether in the peculiar facts and circumstances the petitioner is entitled to any relief from this Court in its exercise of discretionary jurisdiction? Our Findings :- 7.We find that the Collector, Customs and Central Excise, Meerut, and the CEGAT have not been impleaded as party respondents. The State of U.P., which is a juristic person, has been impleaded as respondent No. 1 through the Collector of Customs and Central Excise, Meerut. No relief is claimed also against the State of U.P. Similar is the position of respondent No. 2 the Union of India, which cannot be sued through CEGAT, New Delhi. 8.The worst is that the petitioner has suppressed the factum of filing of his earlier writ petition before this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt seat. The detailed punchnama of recoveries made were drawn in presence of aforesaid two independent witnesses." (B) "The said Shri Kishore Kumar, driver of the said vehicle admitted the recoveries made as per details in the punchnama dated 2-1-89." (C) "The said vehicle used for carrying contraband gold was liable for confiscation under Section 72 of Gold (Control) Act, 1968 read with Section 115 of Customs Act, 1962 and was seized under Section 66 of the Gold (Control) Act, 1968." (D) "On 6-2-89 Shri Kishore Kumar the driver of the said vehicle was summoned and his statement was recorded in which he admitted that he was driving the said vehicle since last August, 1988 as Taxi and he was paid employee of Shri Sudhir Kumar Jain and Shri Sudhir Kumar asked him on 3-1-89 at about 8.00 A.M. for going to Delhi. He also stated that he had picked up the said three persons from their houses which he knew. He also stated that the iron boxes were got made under the front seat and under the driver's seat of the said vehicle after its purchase for Rs. 150/- with the consent of its owner. He also stated that the three persons S/Shri Ashok Kumar Agarwal, Sanjeev Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not indicate such things." (H) "I also find that the driver did not object while the three persons namely; S/Shri Ashok Kumar Agarwal, Sanjeev Kumar and Sunil Kumar boarding the Maruti Car No. DDC-5513 were keeping these goods in these two boxes. Rather he allowed them to keep these things in the boxes for safe keeping. Normally presumption, therefore, would be that these three persons were having the knowledge of these two boxes for safe keeping of the contraband goods and the driver also was aware of this. The presumption is further confirmed from the statement dated 6-2-89 of the driver Shri Kishore Kumar that he knew the three persons and his master were connected quite well and he had dropped them from Saharanpur to Delhi in the past also on many occasions. Accordingly, therefore, it is proved beyond doubt that the Maruti Car No. DDC-5513 having two boxes fitted for safe keeping of contraband goods was being used as means of transport/carriage of smuggled goods and/or contraband gold. Therefore, the vehicle No. DDC-5513 is liable to confiscation under Section 115(2) of the Customs Act, 1962 and Section 72 of the Gold (Control) Act, 1968. The owner of the vehicle w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecification to connect Sudhir Kumar with the gold there is no basis for penalty on him" (vide paragraph 6). While rejecting the prayer of the petitioner in regard to confiscation of the vehicle and the penalty imposed on the Driver the CEGAT had observed as follows :- "7. Kishore Kumar, the driver has in his statement also denied knowledge of the fact that he was carrying gold. He says that he went away to have tea and buy cigarette. They kept the goods in the boxes in his absence. This argument is not applicable. The other persons could not be expected to know that these boxes have been built in the car. It was only the owner and driver who knew that these boxes existed. The statement of Kishore Kumar does not show that he was questioned about where exactly he picked up, the others, when they kept the goods in boxes, how they came to know about the boxes, etc. The statements are sketchy. However, the passengers in the car would not have come to know about the existence of the specially built boxes in the car by themselves. They would have to be told about them either by the owner or the driver. We do not find anything in the record to say that either of them passed on this info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India, or any vehicle which is or has been in India, or any vehicle which is or has been in custom area, While constructed, adapted, altered or fitted in any manner for the purpose of concealing goods; (b) any conveyance from which the whole or any part of the goods is thrown overboard, stayed or destroyed so as to prevent seizure by an officer of customs; (c) any conveyance which having been required to stop or land under Section 106 fails to do so, except for good and sufficient cause; (d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer; (e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods. (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of the vehicles in question. The CEGAT has recorded a clear finding in his regard which is as follows :- "He was aware of the existence of these boxes and he was also incharge of the vehicle. It is therefore not possible to escape the conclusion that he would have responsible for arranging and keep the gold and currency in the boxes." 16.The petitioner being the owner of the vehicle was required to prove that he/his/Agent/the person in charge of the vehicle had taken necessary precautions mentioned in Section 72 of the Gold (Control) Act and that it was used without knowledge or connivance of his Agent or Incharge of the vehicle as mentioned in Section 115 (2) of the Customs Act. 17.We do not find any pleading in the writ petition in this regard either what to talk of dealing of any evidence by the petitioner before the original authority. In fact it was not even the submission of Sri Saran that the petitioner has taken such precautions. 18.We find that in paragraph 22 of the writ petition a stand has been taken that no Rule has been enacted under Section 115(2) of the Customs Act prescribing precautions to be taken thereunder. This stand is thoroughly misconceived ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 72 of the Gold (Control) Act are not mandatory provisions. The discretionary jurisdiction vested in us should not be exercise in favour of those who indulge or allow their vehicles to indulge in smuggling of contraband goods for which the two Acts have been enacted by our Parliament to be dealt with effectively so that our economy could sustain and recover without completing with any parallel black money/economy. 23.We are also surprised to find that no prayer has been made in this writ petition for quashing the orders passed by the Custom Authority and the CEGAT by granting a writ of certiorari. A writ of certiorari is sought to be issued whenever an inferior Tribunal wrongly exercises jurisdiction or exceeds its jurisdiction whereas a writ of mandamus is issued when the inferior Tribunal has declined jurisdiction with object of the latter is not to review or control the action of the inferior Tribunal but merely to compel it to act. The petitioner has failed to show what statutory duty the State of U.P. or the Union of India has failed to perform or declined jurisdiction vested in them. The remedy of invoking the jurisdiction to issue a writ of mandamus in the peculiar fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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