Vinod Kumar Jain vs Rajesh Jindal
2022 Latest Caselaw 522 Cal/2

OD-1
                   IN THE HIGH COURT AT CALCUTTA
                SPECIAL CIVIL JURISDICTION (CONTEMPT)
                            ORIGINAL SIDE


                                  CC/8/2022

                          VINOD KUMAR JAIN
                                  VS.
               RAJESH JINDAL, PRINCIPAL COMMISSIONER
                    OF CUSTOMS [PORT] AND ORS.
                                .........

PRESENT:

THE HON'BLE JUSTICE T.S. SIVAGNANAM And THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA 17th February, 2022.

Mr. S. K. Mehta, Adv., Mr. Anurag Bagaria, Adv...for petitioner.

Mr. K. K.Maity, Adv., Mr. Abhradip Maity, Adv...for respondents.

The Court: This contempt application has been filed for wilful violation

of the judgment and order dated 24.11.2021. In the penultimate paragraph of

the said order certain directions were given to the appellant/department. The

first direction being that the appellant/department was to draw representative

sample of the consignment in the presence of the first respondent/importer

and send the sample for testing to the accredited laboratory in Kolkata. It was

made clear that action taken by the department in this regard will not

prejudice them from pursuing their appeal before the Tribunal challenging the

order passed by the Commissioner of Customs dated 11.8.2021. In terms of

direction samples were drawn on 15.12.2021 after more than 15 days. The

sample has been sent to the accredited laboratory at Kolkata on 2.1.2022. The

laboratory very promptly furnished the report on 6.1.2022. The first

respondent/importer appears to have not been informed about the report

dated 6.1.2022, presumably because it is in favour of the first

respondent/importer. It is only on 10.2.2022 the report has been forwarded to

the first respondent/importer. After notice of order of the contempt

application the respondents have been served and they are now represented

by counsel before us, and some of the officers of the department are also

present in the court room. As pointed out, there has been delay at every stage

of the proceeding, the order and direction issued to the department was clear

and candid and also made it clear that it is without prejudice to the rights of

the department to pursue their appeal before the Tribunal. Therefore, in all

fairness, the department was expected to comply with the direction in its letter

and spirit. The submission made on behalf of the department before us, today

is that this court did not issue any further direction to release the goods in the

event the sample drawn and tested is in favour of the first

respondent/importer. We fail to understand as to how the department would

be justified in taking such stand as no useful purpose would be served by

merely keeping the laboratory report on file and the officers of the department

must be well aware that what are the next steps and subsequent steps, which

are to follow after the report is received. The stand has been taken before us

that the department is not accepting the test report dated 6.1.2022 and they

are contemplating of sending the report/samples to a referral laboratory. This

is something which the department has to take a call and that cannot be a

reason to make the direction unworkable. Therefore, we would have been well

justified in initiating action under the Contempt of Courts Act against all the

concerned officers. However, we do not wish to do so in the light of the stand

taken by the department that if direction is issued the goods will be released

based upon the test report dated 6.1.2022. In the light of the same, the

appellant/department is directed to release the goods within 48 hours from

the date of receipt of the server copy of this order and we make it clear that

the release of the goods based on the test report dated 6.1.2022 will not

prejudice the rights of the department, as observed earlier in our judgment

and order dated 24.11.2021.

We also note that the department has not issued the detention

certificate for waiver of detention charges and other charges and it appears

that only for a partial period such certificate has been issued. The department

should not frustrate the order and direction issued in our judgment and order

dated 24.11.2021, more particularly, when the department has not preferred

any appeal against our judgment and the same has attained finality.

Therefore, the department is directed to issue detention certificate for the

entire period of detention, that is, till the goods are released in terms of the

direction issued earlier.

List the matter on 25.2.2022 for reporting compliance.

(T.S. SIVAGNANAM, J.)

(HIRANMAY BHATTACHARYYA, J.) pkd/spal AR(CR)