Calcutta High Court
Commissioner Of Customs (Preventive) vs Bangari Bhola And Others on 16 August, 2024
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
APOT NO. 221 OF 2024
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
RESERVED ON: 10.07.2024
DELIVERED ON: 16.08.2024
CORAM:
THE HON'BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
A.P.O.T NO. 221 OF 2024
(I.A. NO. G.A./02/2024)
COMMISSIONER OF CUSTOMS (PREVENTIVE), WEST BENGAL
VERSUS
BANGARI BHOLA AND OTHERS
Appearance
Mr. K.K. Maiti, Adv.
Mr. Tapan Bhanja, Adv.
....for the Appellant.
Mr. Rohit Das, Adv.
Mr. Shantanu Mitra, Adv.
Mr. Sreyash Basu Dasgupta, Adv.
Mr. Kishwar Rahman, Adv.
Ms. Divya Jyoti Tekriwal, Adv.
Mr. Rishav Mazumder, Adv.
....for the Respondent.
Page 1 of 21
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JUDGMENT
(Judgment of the Court was delivered by T.S. Sivagnanam, CJ.)
1. The revenue, the Commissioner of Customs (Preventive), West Bengal
is the appellant. They are aggrieved by the order passed in WPO 334 of 2024
dated 07.05.2024 filed by the first respondent herein. In the said writ
petition, the first respondent sought for setting aside the inventory cum
seizure list dated February 06, 2024 as also the summons dated March 26,
2024. The respondent writ petitioner also sought for a direction upon the
appellant to unconditionally release the goods being 200 bags containing
five metric tonnes of areca nuts which were seized by the customs
authorities under the impugned seizure memo. The facts leading to the filing
of the writ petition are as hereunder:-
2. The writ petitioner procured five metric tonnes of areca nuts, from a
supplier at Imphal, Manipur under three GST invoices bearing nos. 630,
631 and 632 all dated February 05, 2024. The value of the consignment was
declared as Rs. 34,16,765/- and they were despatched by air from Imphal
under cover of three e-way bills dated February 05, 2024. The goods arrived
at the Netaji Subhas Chandra International Airport, Kolkata on February
05, 2024. When the writ petitioner went to collect the goods from the
domestic cargo complex of the International Airport on February 07,
2024,he was informed that the Preventive Officer of customs SRI Unit, the
5th respondent herein visited in-bound domestic cargo warehouse of the
International Airport on February 05, 2024 and detained/seized the goods.
The reason behind such detention was that the goods were suspected to be
of foreign origin and illegally imported into India in contravention of the
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provisions of the Customs Act, 1962 and the Foreign Trade Policy, 2023.
The goods were seized on February 06, 2024 under Section 110 of the
Customs Act (the Act) after which an inventory-cum-seizure list of even date
was prepared and reasons were recorded for the seizure.
3. It is stated that the 5th respondent directed the Cargo Manager, Indigo
Airlines to call the writ petitioner however he neither appeared nor claimed
the goods nor contacted the 5th respondent and therefore the goods were
seized under Section 110 (1) of the Act on February 06, 2024. The writ
petitioner submitted representations on February 09, 2024 and March 01,
2024 requesting the customs authorities to unconditionally release the
seized goods without delay. Subsequently on March 04, 2024, summons
was issued to the writ petitioner directing him to appear on March 18, 2024
with relevant documents which were complied with by the writ petitioner
and produced the copies of the representations dated February 09, 2024
and March 01, 2024. The second summons dated March 26, 2024 was
issued directing the writ petitioner to appear on April 12, 2024, at that stage
the writ petition was filed.
4. The writ petitioner contended that the customs authorities have
effected the seizure without authority of law and jurisdiction, by placing
reliance on the Notification No. 82/2017-Customs (N.T) dated August 24,
2017 issued by the Central Board of Customs and Excise under Section 4(1)
of the Customs Act. It was contended that the Principal Commissioner of
Customs (Port), Kolkata and the Principal Commissioner of Customs (Airport
and Air Cargo Complex), Kolkata and subordinate authorities under their
respective control have jurisdiction over ports of Kolkata and Haldia and the
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International Airport areas, the areas under the jurisdiction of Kolkata,
Howrah and South Suburban Corporations, so much of the Hooghly river as
is downstream of the northern limit of the Kolkata Port and all land as are
within the 10 kilometres of the high water mark and spring tide on either
side of the river, while the Commissioner of Customs (Preventive), West
Bengal, the appellant herein and subordinate authorities under his control
have jurisdiction over the rest of the State of West Bengal and therefore the
purported seizure carried out by the 5th respondent namely the Preventive
Officer of customs, SRI Unit within the territorial limits of the International
Airport is entirely without jurisdiction and therefore wholly illegal and void
ab initio.
5. Further it was contended that the inventory-cum-seizure list,
impugned in the writ petition, does not contend any prima facie ingredients
which can be said to lead to a reason to believe that the goods of the writ
petitioner were of foreign origin and illegally imported into India and
therefore the seizure is illegally. On facts the writ petitioner contended that
the goods were sourced from Imphal, Manipur within India purchased by
way of valid domestic transactions and the copies of the GST invoices e-way
bills and air way bills were already submitted and therefore further
detention of the goods is not tenable. Further it was contended that the
customs authorities cannot seize or detain the goods under Section 110 of
the Act on a mere suspicion and as such there was no reason to believe that
the consignment was liable to be confiscated under the provisions of the
Customs Act. The revenue resisted the prayer sought for in the writ petition
and the contentions are advanced by contending that although jurisdiction
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has been conferred on the Principal Commissioner of Customs (Port),
Kolkata and Principal Commissioner of Customs (Airport and Air Cargo
Complex) Kolkata in respect of the area of the airport, the some does not
denude the power and authority of the Commissioner of the Customs
(Preventive), West Bengal from exercising jurisdiction, as he has jurisdiction
over the entire State of West Bengal, and area of jurisdiction of the
Commissioner of the Customs (Preventive), West Bengal has been delineated
to be whole of the State of West Bengal, Sikkim and the Union Territory of
Andaman and Nicobar Islands.
6. The writ petitioner placed reliance on the decision of the Division
Bench of this court in Commissioner of Customs Versus Md. Ahmed Ali
Khan1. In support of their contention that the Commissioner of Customs
(Preventive) had no jurisdiction over the International Airport. The revenue
sought to distinguish the decision on the ground that the challenge in the
case of Md. Ahmed Ali Khan was to the correctness of the order passed by
the Customs Excise and Gold (Control) Appellate Tribunal, Eastern Bench,
Kolkata whereas in the instant case, the writ petitioner has challenged the
seizure list and the summons and as such, the writ petition is not
maintainable. It was further contended that on facts, the case is
distinguishable and the writ petition is premature.
7. Further it was contended that the period for making an
enquiry/investigation under Section 110(2) of the Act is yet to expire and at
this stage this court should not exercise its power of judicial review. The
learned writ court was of the view since the jurisdictional issue has been
2006 SSC Online Calcutta 858; (2006) 204 ELT 36
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raised, proceeded to decide the writ petition on the basis of the materials on
record, without calling for affidavits. The learned writ court after noting the
facts, referred to the notification dated 24.08.2017 and held that in terms of
the said notification in column 3 of table 2, serial no. 11, the Commissioner
of Customs (Preventive), West Bengal has been conferred with the
jurisdictional area in respect of the whole of State of West Bengal, Sikkim
and Union Territory and Andaman and Nicobar Islands. In Column 3 of
Table 2 in serial no. 10, the Principal Commissioner of Customs (Port)
Kolkata and Principal Commissioner of Customs (Airport and Air Cargo
Complex), Kolkata have been conferred jurisdictional area of ports of Kolkata
and Haldia Netaji Subhas Chandra International Airport, the area under the
jurisdiction of Kolkata, Howrah and South Suburban Corporations, so much
of the Hooghly river as is the downstream of the northern limit of Kolkata
Port and all lands are within the 10 Kms; of high water mark and spring tide
on either side of the river as also the Andaman and Nicobar Islands and
Falta Special Economic Zone. The learned writ court held that a conjoint
reading of column 2 serial no. 10 and 11 and column 3 of table 2 it clearly
appears that all though jurisdiction has been conferred on the
Commissioner of Customs (Preventive) in respect of the whole of State of
West Bengal, yet the Principal Commissioner of Customs (Port), Kolkata and
the Principal Commissioner of Customs (Airport and Air Cargo Complex),
Kolkata have been conferred with jurisdictional area inter alia, including
Netaji Subhas Chandra International Airport. Thus the learned writ court
held that in the notification which delineates the jurisdiction of the officers
of the customs makes it explicitly clear that sole jurisdiction has been
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conferred on the Principal Commissioner of Customs (Port) Kolkata and the
Principal Commissioner of Customs (Airport and Air Cargo Complex),
Kolkata to decide all violations in respect of inter alia, Netaji Subhas
Chandra International Airport. The learned writ court rejected the
contention of the revenue that the Commissioner of Customs (Preventive)
enjoys concurrent jurisdiction withthe Principal Commissioner of Customs
(Port), Kolkata and Principal Commissioner of Customs (Airport and Air
Cargo Complex), Kolkata. With regard to the decision in Md. Ahmed Ali
Khan, the learned writ court observed that the notification based on which
the said judgment was delivered and the notification in the present case are
different yet held that from the language employed in the notifications, it
would be amply clear that when aspecified authority is conferred with the
jurisdiction to consider the violations of the provisions of the Act, in respect
of a particular jurisdictional area, then it is that particular authority which
shall have sole jurisdiction in respect of the said area notwithstanding the
overall jurisdiction of the State may vests with another authority.
8. The learned writ court rejected the contention of the revenue that the
court should not interfere with the case which is under investigation by
holding that since the preventive officer, respondent no. 5 did not have
jurisdiction the customs authorities cannot be permitted to proceed with the
enquiry/investigation. Consequently, it held that the question whether the
reasons of non-disclosure of the satisfaction that the respondent no. 5 had
reasons to believe that the goods are liable for confiscation has become
academic. Accordingly, the seizure list/detention order were quashed with a
direction to the appellant to release the goods to the writ petitioner along
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with an observation that the order passed in the writ petition will not stand
in the way of the department initiating appropriate proceedings against the
writ petitioner by an appropriate authority in accordance with law.
9. Mr. K.K. Maity, learned Senior Standing Counsel appearing for the
appellant assisted by Mr. Tapan Bhanja, learned Junior Standing Counsel
contended that in the notification dated 24.08.2017 in Table 2 Serial No. 11,
the Commissioner of Customs (Preventive), West Bengal has jurisdiction
over (i) the whole of State of West Bengal and Sikkim (ii) Union Territory of
Andaman and Nicobar Island. This aspect was not properly appreciated by
the learned writ court. Further the learned writ court committed an error in
holding that the Principal Commissioner of Customs (Airport and Air Cargo
Complex) Kolkata has jurisdiction over the International Airport though in
Serial No. 10 of the notification dated 24.08.2017 clearly specifies that the
Principal Commissioner of Customs (Airport and Air Cargo Complex),
Kolkata and Principal Commissioner of Customs (Port), Kolkata has only
jurisdiction over the ports of Kolkata and Haldia and Netaji Subhas Chandra
International Airport, the area under the jurisdiction of Kolkata, Howrah
and South Suburban Corporations so much of the Hooghly river as its
downstream of the Northern Limit of the Kolkata Port and lands are within
10 kilometres of the high water mark had spring tide on either side of the
river the Andaman and Nicobar Islands and Falta, Special Economic Zone.
10. It is further submitted that the Dum Dum Airport has been declared
as Netaji Subhash Chandra International Airport from 1995 and in terms of
the notification dated 25.08.2017, the Principal Commissioner of Customs
(Airport and Air Cargo Complex), Kolkata has only jurisdiction over Netaji
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Subhash Chandra International Airport and not on the whole airport.
Further it is contended that the learned writ court failed to appreciate that
the Commissioner of Customs (Preventive), West Bengal has jurisdiction
over the whole of the State of West Bengal and therefore the seizure was
valid. It was further submitted that there was reason to believe that the
goods are of foreign origin which has led to its seizure and when the
investigation is yet to be completed the learned writ court ought not to have
quashed the seizure list and directed the unconditional release of the goods.
Further it is contended that the summons sent to the alleged
supplier/trader based at Imphal in the address given in the GST invoice was
returned with the postal endorsement "addressee not known". Further as
per the supplier/traders GSTIN details they do not have a license to deal
with areca nuts.
11. Mr. Maity placed reliance on the Customs Preventive Manual
(Central) Volume 1 (General) to explain the powers of the Commissioner
(Preventive). It is submitted that in terms of the manual, the Commissioner
(Preventive) has jurisdiction and function with all work related to anti-
smuggling, surveillance over sea, land and other formation, collection and
working out of the intelligence, disposal, marine and preventive wing, court
matters, investigations etc. So far as the Commissioner (Airport) he would
have jurisdiction and functions all work related to movement of aircrafts,
incoming/outgoing passengers and baggage at the airport, anti-smuggling
works at airport, import/export of goods by courier mode etc. Further by
placing reliance on the said manual, it is submitted that the main function
of the preventive department is prevention of smuggling of dutiable,
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prohibited and restricted goods. The other relevant directives/information in
the Preventive Manual were also referred to. Thus, it was submitted that the
impugned order is liable to be set aside and the department should be
permitted to continue with their investigation.
12. Mr. Rohit Das, learned advocate appearing for the respondent writ
petitioner reiterated the submissions made before the learned Single Bench
and has elaborately referred to the reasoning given by the learned writ court
and sought to sustain the decision. By referring to the notification dated
24.08.2017, it is submitted that the appellant namely the preventive
department of the customs had no jurisdiction to effect the seizure within
the territorial limits of the International Airport. Further there was no
reason to believe that the goods are of foreign origin and the
detention/seizure is illegal. It is further submitted that if a statute requires
an authority to exercise powers it is only that authority which can exercise
such power and not any other authority. Further the reason to believe that
the goods are of foreign origin requires a solid foundation and cannot be on
a mere suspicion more particularly when the burden is on the department to
show that the goods are of foreign origin. With regard to the Customs
Preventive Manual which was relied on by Mr. Maity, it is submitted that it
is in the nature of a citizen's charter and the same cannot be relied on by
the department to sustain their action.
13. We have elaborately heard the learned advocates for the parties and
carefully perused the materials placed on record.
14. Section 110 of the Customs Act, 1962 deals with seizure of goods,
documents and things. Subsection (1) states that if the proper officer has
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reason to believe that any goods are liable to confiscation under the Act, he
may seize such goods. Reasonable belief as to the smuggled goods as
enjoined in the Act was explained by the Hon'ble Supreme Court in State of
Gujarat Versus Mohanlal Gitamalji 2. It was held that whether or not the
officer concerned had seized the article under the "reasonable belief" that
the goods were smuggled is not a question on which the court can sit on
appeal. The circumstances under which the officer concerned entertains
reasonable belief, have to be judged from his experienced eye who is well
equipped to interpret the suspicious circumstances and to form a
reasonable belief. For the same proposition reference, may be made to the
decision in Mashir Versus State of Kerala 3 and Barium Chemicals
Limited Versus Company Law Board 4.
15. The Hon'ble Supreme Court in Indu Ramchandra and Other Versus
Union of India 5 , held that the conclusions arrived at by the fact-finding
bodies, the tribunal or the statutory authorities, on the facts found that the
cumulative effect or pre-ponderance of evidence cannot be interfered where
the fact-finding body or authority has acted reasonably upon the view which
can be taken by any reasonable man, courts will be reluctant to interfere in
such a situation. As has been seen from the impugned order, affidavits were
not called for from the department, nonetheless in the appeal the authority
has stated that the two summons were sent to the suppliers/traders at
Imphal, Manipur from whom the writ petitioner is said to have purchased
(1987) 2 SCC 364
(1974) 2 SCC 687
AIR 1967 SC 295
(1988) 4 SCC 1
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the goods and both the summons were returned undelivered with the postal
endorsement "addressee not known".
16. Further it is contended that from the GSTIN details of the
suppler/trader at Imphal, Manipur it is seen that the said suppler does not
have license to deal with areca nuts. Further it is submitted that the writ
petitioner though was informed did not turn up nor produced any
documents to claim the goods and therefore seizure was effected under
Section 110 of the Act on the reasonable belief that the goods were illegally
imported into India in contravention to the provisions of the Foreign Trade
Policy, 2023 and were liable for confiscation under the provisions of the
Customs Act. Thus the writ petition cannot contend that the seizure of the
goods in exercise of the powers conferred under Section 110 of the Act was
without any basis.
17. Having steered cleared of this issue, the only other issues which
remains to be considered is whether the appellant authority namely the
authority of the Preventive Wing of the customs department had jurisdiction
to seize the goods from the domestic cargo complex in the Netaji Subhas
Chandra International Airport. Before we go into the notification dated
24.08.2017 we are required to consider as to what is the purpose for which
the Preventive Wing of the customs department has been created/notified.
We do not agree with the submissions made by the learned advocate for the
respondent writ petitioner that the Customs Preventive Manual relied on by
Mr. Maity is in the form of a Citizen's Charter. No doubt in the first page of
the Preventive Manual under the column contents pages (i) to (ii) mentions
Citizen's Charter of Customs and Central Excise, however what is important
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is the subsequent chapters which deal with powers, duties and
responsibilities of the preventive department. Under chapter 1 under sub
heading Organizational Set Up, Field Formation has been dealt with. It is
stated that to effectively monitor the entire gamut of the customs work along
the borders and across the country, Field Formations in the form of land
customs stations, customs ports and customs airport, customs area
warehousing the boarding stations, exporting processing zones, inland
container depos and freight stations etc. have been appointed by the
Government under Section 7, 8, 9 and 10 of the Customs Act. Under the
heading jurisdiction of the Chief Commissioner of Customs/Central Excise
so far as Kolkata there are four Commissioners of Central Excise in Kolkata
apart from in Bolpur and Shillong there are two Commissioners of Customs
namely Kolkata (Port), Kolkata (Airport), West Bengal and Shillong. The
manual further that the set ups to monitor and control the customs work in
a specified area or region is known as Commissionerate. A Commissionerate
is a full fledged establishment having its own structure of man power,
equipment and other paraferinia to run the administration for effective
transaction of customs works. With regard to the division of work, the broad
classification of the Commissioner of Customs have been mentioned under
which the Commissioner (Preventive) shall have the jurisdiction and will
function with regard to all work related to anti-smuggling surveillance over
sea, land and other formations, collection and working out of intelligence,
disposal, marine and preventive wing, court matters, investigation etc. The
Commissioner (Airport) shall have jurisdiction and would function with
regard to all works related to movement of aircrafts, incoming/outgoing
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passengers and baggage at the airport, anti-smuggling work at the airport,
import/export of goods by coureer mode etc.
18. In chapter 1 the functions of the preventive department have been set
out and it is mentioned that the main function of the preventive department,
is prevention of smuggling of dutiable, prohibited and restricted goods. In
addition, it also has to aid and supplement of activities of some other
departments in enforcing the provisions of the Customs Act and various
allied acts relating to arrival and departure of the vessels and aircrafts;
discharge, landing and clearance of imported and warehoused goods,
shipment and transshipment of goods at the docks, airport and other
stations. It is further stated that even in case of regular import/export of
goods through the normal trade channel though the procedure connected
therewith are attended by the apprising section, it is the preventive wing
which ensures the total observance of law by the trade and public by
effecting proper checks at the points of entry/exit. There is no aspect of
customs functioning with which the preventive service is not directly or
indirectly associated. The mannual states that the preventive officer of
customs is the first to greet any visitor arriving in India and the last he has
to see departure from India and in the process, he has to shoulder dual
responsibility. On the one hand, he has conduct himself to the visitor as an
ambassador of India. On the other, being a soldier in the economic front, he
has to ensure the proper observance of the laws of the land by the visitor.
Further a separate sub heading has been devoted for "Proper officers under
the Customs Act, 1962" and a tabulated format has been given giving the
relevant sections of the Customs Act and the subject to be dealt with by the
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officer in brief. In chapter 4 of the table deals with preventive officers and
the powers under Section 110 has also been conferred on the preventive
officers. Chapter 5 of the manual deals with import and exports buyers
under which there are various sub headings one of which is the air cargo
complex. There is a reference to both Circular No 69/99-Cus dated
06.10.1999. Under the sub heading I.G.M Register, it is stated that it will be
the duty of the Superintendent (Preventive/Cargo) to ensure that each and
every flight landed, the master copy of the I.G.M together with the cargo is
received in the cargo complex within 24 hours of the landing. He shall also
verify the documents relating to transfer of cargo to ACC, Airlines bonds,
direct delivery, W/H etc. are attached with the manifest. With regard to the
direct delivery of the import cargo it is stated that a special direct delivery
cell is created which is manned by the Preventive and Ministerial staff.
Under the sub heading clearance of domestic cargo at air cargo complex it is
stated that the cargo will be received under the supervision of the Preventive
Officer. With regard to the duties of the Preventive Officer/International
Airlines Warehouse, it is stated that the preventive officer posted in the
warehouse of the airlines has to oversee and monitor the movement of the
import/export cargo to and fro from the warehouse. With regard to the
preventive officers/domestic carrier airlines warehouse, it is stated that in
these warehouses the preventive officers are posted round the clock. The
Superintendent (Preventive and Preventive Officers) are also deployed to
work and attend various tasks of processing of documents/clearance of
import/export cargo through EDI system etc. Thus, it is clear that the
preventive officer has overall jurisdiction to discharge various duties and
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responsibilities with the main function of the preventing, smuggling of
dutiable, prohibited and restricted goods. Bearing this in mind, we proceed
to consider the scope of notification which is the subject matter of
interpretation before the learned Singe Bench.
19. In table 2 of the notification, serial nos. 10 and 11 would be relevant
for the case on hand which is quoted hereunder:
SL. AREA DESIGNATION OF OFFICER
NO.
(1) (2) (3) (4)
... ... ... ...
(10) (i) Ports of Kolkata and (i) Principal
Additional
Haldia, Netaji Subhash Commissioner Commissioners, or Joint
Chandra International of CustomsCommissioners, or
Airport, the area under the (Port), Deputy Commissioners,
jurisdiction of Kolkata, Kolkata; or Assistant
Howrah and South Suburban (ii) Principal
Commissioners of
Corporations, so much of the Commissioner Customs working under
Hooghly river as is of Customsthe control of-
downstream of the Northern (Airport and (i) Principal
limit of Kolkata Port, and all Air Cargo Commissioner
lands as are within 10 Complex), of Customs
kilometres of high watermark Kolkata (Port), Kolkata;
at spring tide on either side of (ii) Principal
the river; Commissioner
(ii) The Andaman and Nicobar of Customs
Islands; (Airport and
(iii) FALTA Special Economic Air Cargo
Zone. Complex).
(11) (i) The whole of the States of Commissioner Additional
West Bengal and Sikkim; of Customs Commissioners, or Joint
(ii) Union Territory of the (Preventive), Commissioners, or
Andaman and Nicobar West Bengal Deputy Commissioners
Islands of Customs working
under the control of the
Commission er of
Customs (Preventive),
West Bengal.
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20. The above notification has been issued by the Central Board of Excise
and Customs in exercise of the powers conferred under Subsection (1) of
Section 4 of the Customs Act and in supersession of the three notifications
all dated September 16, 2014 whereby the Central Board appointed the
officers and define the area of jurisdiction. Section 4 of the Customs Act
deals with Appointment of Officers of Customs. Subsection (1) states that
the Central Government (subsequently substituted with the word "Board"
with effect from 11.05.2002) may appoint such persons as it thinks fit to the
officers of the Customs. Subsection (2) states that without prejudice to the
proceedings of the Subsection(1) the Board may authorize the Chief
Commissioner of Customs or the Commissioner of Customs or the Joint or
Deputy or Assistant Commissioner of Customs to appoint the officers of
Customs below the rank of the Assistant Commissioner of the Customs (as
the section stood prior to the substitution by Act 20 of 2002 with effect from
11.05.2002. By virtue of this provision, the Central Government is
empowered to delegate to the Board and the superior officers of customs, the
power to appoint subordinate officers. Thus, the notification dated August
24, 2017 is a statutory notification.
21. The cardinal principle of interpretation would be to read the
notification as such and the interpretation if to be given should be to give
effect to the notification in its letter and spirit and not to thawart the
purpose for which it has being issued. In any event, the notification issued
in exercise of powers under Section 4(1) of the Act is for administrative
convenience and the court should seldom step into the realm of
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administration and make a hair-splitting exercise when the scope of the
notification is called in question. In other words, the interpretation should
be purposive interpretation to enable the designated officers to carry out the
functions under the provisions of the Customs Act. In terms of clause 10 of
the notification, as noted above, the Commissioner of Customs (Preventive),
West Bengal shall have jurisdiction (i) over the whole of the State of West
Bengal and Sikkim (ii) Union Territory of Andaman and Nicobar Island.
22. The Oxford Dictionary, 10th Edition defines "whole" to mean complete;
entire, emphasizing a large extent; a whole range of issues; a thing that is
complete in itself and taking everything into account. The Chambers
Dictionary Revised 13th Edition defines "whole" to mean not broken;
undamaged; not broken up or ground or deprive of any part; containing
total number etc; complete; from which no constituents have been removed;
the entire thing; something complete in itself. Therefore, the purposive
interpretation to the word "whole" that should be given would mean that the
Commissioner of Customs (Preventive), West Bengal will exercise all powers
throughout the territories of the State of West Bengal and Sikkim and apart
from that the Additional Commissioners or Joint Commissioners or Deputy
Commissioners or Assistant Commissioners of Customs working under the
control of the Commissioner of Customs (Preventive), West Bengal shall also
exercise jurisdiction to the whole of the States of West Bengal and Sikkim as
well as Union Territory of the Andaman and Nicobar Island.
23. Clause 10 of the notification deals with the jurisdiction of the (i)
Principal Commissioner of Customs, (Port), Kolkata (ii) Principal
Commissioner of Customs (Airport and Air Cargo Complex), Kolkata and the
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Additional CommissionersorJoint Commissioners or Deputy Commissioners
or Assistant Commissioners of Customs working under their control. Their
jurisdiction is with regard to the ports of Kolkata and Haldia, Netaji
Subhash Chandra International Airport, area under the jurisdiction of
Kolkata, Howrah and South Suburban Corporations so much of Hooghly
river as is downstream of the Northern Limit of Kolkata port and all lands as
are within the 10 kilometers of high water mark and spring tide on either
side of the river; (ii) the Andaman and Nicobar Islands; (iii) Falta, Special
Economic Zone.
24. As noted above the interpretation to be given to statutory notification
conferring jurisdiction upon the officers has to be given the true meaning
and purpose for which such notification has been issued. If the
Commissioner of the Customs (Preventive), West Bengal exercise jurisdiction
over the whole of the States of West Bengal and Sikkim apart from the
Union Territory of Andaman and Nicobar Islands, it cannot be said that
merely because in Clause 10, the Principal Commissioner of Customs
(Airport and Air Cargo Complex), Kolkata has been given jurisdiction over
Netaji Subhas Chandra International Airport that would denude the
jurisdiction of the Commissioner of Customs (Preventive), West Bengal. This
interpretation alone will sub-serve the purpose for which the power has
been exercised under Section 4(1) and any other interpretation which will
thwart the effective implementation of the notification has to be wholly
avoided and rejected. Thus, we are of the view that the Commissioner of
Customs (Preventive), West Bengal has jurisdiction over the whole of the
States of West Bengal and Sikkim and the jurisdiction conferred on the
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Principal Commissioner of Customs (Airport and Air Cargo Complex),
Kolkata over the Netaji Subhas Chandra International Airport will not take
away the powers of the Commissioner of Customs (Preventive), West Bengal
who has the jurisdiction over the entire State of West Bengal.
25. So far as the decision in the case of Md. Ahmed Ali Khan is concern,
as noted by the learned Single Bench, the interpretation was regarding two
notifications which were issued on 27.08.1983 at the relevant time, the
Airport was Dum Dum Airport and has not been classified as an
International Airport. Apart from that, as rightly pointed out by Mr. Maity,
the matter arose out of an reference under Section 130 of the Customs Act,
unlike the case on hand in which a seizure list has been impugned in the
writ petition. Therefore, the writ petition ought to have been rejected at the
threshold as being premature. Nevertheless, the learned writ court had dealt
with the matter pertaining to the jurisdiction and consequently we were
required to go into the correctness of the order and in our considered
opinion, the interpretation given to the notification by the learned Single
Bench is not tenable.
26. It was contended before the learned writ court that the seizure was
without any basis and the authority did not have any reasons to belief that
the goods were of foreign origin. However, when we see the inventory cum
seizure list of the seized goods dated 06.02.2024, it has been stated that the
Cargo Manager of the Indigo Airlines was directed to call the consignee, the
writ petitioner to appear. However, the consignee/writ petitioner neither
appeared to claim the goods nor contacted the officers concerned. Therefore,
the seizing officer has recorded that the consignee neither turned up nor
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produced any documents to claim the goods and therefore the goods have
been seized under Section 110 of the Customs Act on the reasonable belief
that the said goods were illegally imported in India in contravention to the
provisions of the Foreign Trade Policy, 2023 and liable for confiscation
under the provisions of the Customs Act. Further it is seen that
representative samples have been drawn from all the three bags and the
seizure-cum-search list incorporating all the facts was prepared in the
presence of the two independent witnesses. Therefore, it cannot be stated
that the seizure was effected without any reasonable belief that the goods
are of foreign origin.
27. In the result, it is held that the seizure by the Preventive Department
of the Customs is valid and the seizure is not vitiated for the reasons
contended by the writ petitioner and consequently the order passed in the
writ petition is set aside and the appeal is allowed. The Customs department
are directed to proceed with the investigation and take the matter to the
logical end in accordance with law.
(T.S. SIVAGNANAM, CJ.)
I Agree.
(HIRANMAY BHATTACHARYYA, J.)
(P.A- SACHIN)
