Calcutta High Court
Bangari Bhola vs Union Of India & Ors on 7 May, 2024
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
WPO/334/2024
BANGARI BHOLA
VERSUS
UNION OF INDIA & ORS.
For the petitioner : Mr. Rohit Das, Advocate
Ms. Kishwar Rahman, Advocate
Mr. Shantanu Mitra, Advocate
Mr. Indradip Das, Advocate
For the Customs : Mr. K. K. Maiti, Advocate
Authority Mr. Tapan Bhanja, Advocate
For the Union of India : Mr. Prithu Dudharia, Advocate
Heard on : 7th May 2024
Judgment on : 7th May 2024
RAJA BASU CHOWDHURY, J:
1. Affidavit of service filed in Court today be kept with the record. The
present writ petition has been filed, inter alia, praying for quashing the
seizure of the goods of the petitioner effected vide inventory cum seizure
list dated 6th February, 2024. The petitioner claims to be involved in the
business of trading in areca nuts (hereafter referred to as "the goods")
throughout the State of West Bengal. The petitioner in usual course of
business dealings and transactions had procured a total quantity of 5
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metric tons of the goods from a supplier based in Imphal, Manipur,
under three separate invoices all dated 5 th February, 2024. The value of
aforesaid consignment was Rs.34,16,765/- (Rupees Thirty Four Lakh
Sixteen Thousand Seven Hundred and Sixty Five). According to the
petitioner, the aforesaid goods were dispatched from Imphal to Kolkata
under cover of separate e-weigh bills all, dated 5 th February, 2024 and
were booked on an Indigo Airlines Flight from Imphal to Kolkata.
Incidentally, upon arrival of the said goods at the Netaji Subash
Chandra International Airport, Kolkata (hereinafter referred to as the
"said airport") on 5th February, 2024, when the petitioner had
attempted to collect the same from the domestic cargo complex of the
said airport on 7th February, 2024, he had come to learn that the goods
had been detained on the ground that the same had been allegedly
imported into India, in contravention of the provisions of the Customs
Act, 1962 (hereinafter referred to as the "said Act") and the Foreign
Trade Policy, 2023. This was followed by seizure of goods by issuance
notice/inventory of seizure dated 6 th February, 2024 issued by the
Preventive Officer of the Customs Authority.
2. Mr. Das, learned advocate appearing for the petitioner by drawing
attention of this Court to the inventory cum seizure list dated 6 th
February, 2024 submits that the said inventory cum seizure list has
not been issued in consonance with the provision of Section 110(1) of
the said Act. The said inventory/seizure list does not record the
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satisfaction of the proper officer that he has reasons to believe that the
goods are liable to confiscation under the said Act. It is further
submitted that the preventive officer did not have the jurisdiction at the
first instance to initiate any proceeding including, detention and seizure
under the provisions of the said Act, within the jurisdictional area of the
said airport.
3. By drawing attention of this Court to the notification dated 24 th August,
2017 issued by the Government of India, Ministry of Finance
(Department of Revenue) (Central Board of Excise and Customs), it is
submitted that the Central Board of Excise and Customs in exercise of
powers conferred under Section 4(1) of the said Act, and in suppression
of notification of the Government of India, Ministry of Finance
(Department of Revenue) dated 16th September, 2014 and the other
relevant notifications as appearing therein had appointed officers
mentioned in column (3) of Table 2 of the said notification to be the
Principal Commissioner of Customs or the Commissioner of Customs
and the officers mentioned in the column (4) of the table 2 thereof, to be
Additional Commissioner or Joint Commissioners or Deputy
Commissioners or Assistant Commissioners of Customs, for the areas
mentioned in the corresponding entry in column (2) of Table 2. It is
submitted that under Table 2 serial no. 10, under the corresponding
column nos. (3) and (4) the officers exercising jurisdiction over the areas
specified under the corresponding column (2) have been identified. They
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are (i)Principal Commissioner of Customs (Port), Kolkata, (ii)Principal
Commissioner of Customs (Airport and Air Cargo Complex), Kolkata
and, under column no. (4) - Additional Commissioners, or Joint
Commissioners, or Deputy Commissioners of Customs working under
the control of - (i)Principal Commissioner of Customs (Port), Kolkata,
(ii)Principal Commissioner of Customs (Airport and Air Cargo Complex),
Kolkata have been appointed as the Commissioner, the Principal
Commissioner and/or Joint Commissioner and/or Assistant
Commissioner. The corresponding areas of jurisdiction of the aforesaid
officers are (i) Ports of Kolkata and Haldia, Netaji Subhash Chandra
International Airport, the area under the jurisdiction of Kolkata,
Howrah and South Suburban Corporations, so much of the Hooghly
river as is downstream of the Northern limit of Kolkata Port, and all
lands as are within 10 kilometers of high water mark at spring tide on
either side of the river; (ii) The Andaman and Nicobar Islands; (iii)
FALTA Special Economic Zone to be the area of jurisdiction of the
aforesaid officers.
4. Having regard to the aforesaid, it is submitted that the Preventive
Officer did not have the jurisdiction to initiate any proceeding including
proceeding under Section 110(1) of the said Act. Since, proceeding
initiated by the Preventive Officer is without jurisdiction, inter alia,
including passing off orders of detention and issuance of
inventory/seizure list by the preventive officer the same are nonest and
5
cannot be acted upon. In support of his aforesaid contention, he has
placed reliance on the judgment delivered by the Hon'ble Division
Bench of this Court in the case of Commissioner of Customs v. Md.
Ahmed Ali Khan, reported in 2006 SCC OnLine Cal 858. In any event
it is submitted that the petitioner had also made representation for
release of the aforesaid goods. Despite such application being made, no
steps have been taken by the respondents to release the goods. The
above would show that the conduct of the respondents do not appear to
be bona fide.
5. Mr. Maiti, learned advocate for the respondent Customs Authority, on
the other hand while opposing this petition submits that the
respondents have already started an investigation and the same is at a
nascent stage. By referring to the provision of Section 110(2) of the said
Act, it is submitted that the original period for making an enquiry/
investigation under Section 110(2) of the said Act, has not yet expired.
This Hon'ble Court at this stage in exercise of its powers under judicial
review ought not to interfere with the inquiry/ investigation. In support
of his aforesaid contention, he has placed reliance on a judgment
delivered by this Hon'ble Court in the case of Sheikh Mohammed
Sayeed v. Assistant Collector of Customs, reported in 2000 (126)
E.L.T. 121 (Cal). It is next submitted that the judgment delivered by
this Hon'ble Court in the case of Commissioner of Customs (supra)
does not assist the petitioner inasmuch as the said judgment was
delivered by relying on two notifications which had since, been
superseded by a subsequent notification. In the said case, two separate
notifications were under consideration. In the present case, there is
only one notification which is under consideration. By referring to the
notification dated 24th August, 2017 and serial nos. (10) and (11) under
column 1 of Table no. 2, it is submitted that although, a jurisdiction
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 same does
not denude the power and authority of the Commissioner of Customs
(Preventive), West Bengal from exercising jurisdiction, as he has the
jurisdiction over the entirety of the State of West Bengal, the area of
jurisdiction of Commissioner of Customs (Preventive), West Bengal has
been delineated to be the whole of the State of West Bengal, Sikkim and
the Union Territory of Andaman and Nichobar Island. It is still further
submitted that in the case of Commissioner of Customs (supra) what
was under challenge was an adjudication order while in this case the
order of adjudication is yet to be passed. As such judgment relied on by
the petitioner is distinguishable on facts and do not come in aid of the
petitioner. The writ petition is premature and should be dismissed.
6. Mr. Dudhoria, learned advocate enters appearance on behalf of Union of
India.
7. Heard the learned advocates appearing for the respective parties and
considered the materials on record. Since, a jurisdictional issue has
been raised in the present writ petition and since, the learned advocates
for the parties have admitted that such issue can be decided on the
basis of the materials on record, I have proceeded to hear out the writ
petition without calling for affidavits. I find that the short question that
falls for consideration before this Court is whether the Preventive
Officer at the first instance had the jurisdiction to initiate any
proceeding, inter alia, including issuance of an order of detention and
seizure under Section 110 of the said Act. To appreciate the controversy
between the parties, it would be relevant to note that the goods in
question had arrived at the said Airport, via Indigo flight bearing no.
6E6716 on 5th February, 2024. It is not in dispute that the Preventive
Officer on 5th February, 2024 had arrived at the inbound domestic
warehouse of the Airport and had requested the Airlines to provide
cargo manifests of the flights coming from North-East and upon
scrutinising the manifest as made available to him and on suspecting
the said goods to be of foreign origin, had passed an order of detention
under Section 110(1) of the said Act on 5th February, 2024 and had,
accordingly, handed over the detention notice dated 5 th February, 2024
to the Cargo Manager of the Indigo Airlines.
8. It is also not in dispute that 200 gunny bags of areca nuts believed to
be of foreign origin which had been detained under detention order
dated 5th February, 2024, were ultimately seized on 6 th February, 2024
by the Preventive Officer. Since, the contention of the parties is with
regard to the authority and jurisdiction of the Preventive Officer to
assume jurisdiction over an area which falls with the said Airport, it
would be relevant to consider the Notification dated 24 th August, 2017
which has been issued in exercise of power conferred under Section 4(1)
of the said Act, in suppression of the previous notifications on the
subject. To appropriately appreciate the area of jurisdiction of the
Customs Officer, the relevant part of the notification dated 24 th August,
2017, including the part of Table 2, is extracted hereinbelow:
" G.S.R. (E).- In exercise of the powers conferred by sub-
section (1) of section 4 of the Customs Act, 1962 (52 of 1962)
and in supersession of notifications of the Government of India
in the Ministry of Finance (Department of Revenue)
No.77/2014- Customs (N.T.), dated the 16 th September, 2014
and No. 78/2014-Customs(N.T.) dated the 16 th September,
2014 published vide numbers G.S.R. 654 (E), dated the 16 th
September, 2014 and G.S.R. 655(E), dated the 16 th September,
2014 respectively, except as respects things done or omitted to
be done before such supersession, the Central Board of Excise
and Customs hereby appoints:-
(i) the officers mentioned in column (2) of the Table-1 below to
be the Principal Chief Commissioners of Customs or Chief
Commissioner of Customs, for the areas failing within the
jurisdiction of the Principal Commissioner of Customs or
Commissioner of Customs, or as the case may be, and the
Commissioner of Customs (Appeals), mentioned in the
corresponding entry in column (3) of the said Table-I; and
(ii) the officers mentioned in column (3) of the Table-2 below to
be the Principal Commissioners of Customs or
Commissioners of Customs and the officers mentioned in
column (4) of the said Table-2 thereof to be the Additional
Commissioners of Customs or Joint Commissioners of
Customs or Deputy Commissioners of Customs or Assistant
Commissioners of Customs, for the areas mentioned in the
corresponding entry in column (2) of the said Table-2.
Sl Area Designation of Officer
No.
(1) (2) (3) (4)
... ... ... ...
(10) (i) Ports of Kolkata (i) Principal Commissioner Additional
and Haldia, Netaji of Customs (Port), Commissioners, or
Subhash Chandra Kolkata; Joint
International (ii) Principal Commissioner Commissioners, or
Airport, the area of Customs (Airport and Deputy
under the Air Cargo Complex), Commissioners, or
jurisdiction of Kolkata. Assistant
Kolkata, Howrah Commissioners of
and south Customs working
Suburban under the control of
Corporations, so -
much of the (i) Principal
Hooghly river as is Commissioner
downstream of the of Customs
Northern limit of (Port), Kolkata;
Kolkata Port, and
(ii) Principal
all lands as are
Commissioner
of Customs
kilometres of high
(Airport and Air
water mark at
Cargo
spring tide on
Complex),
either side of the
Kolkata.
river;
(ii) The Andaman and
Nicobar Islands;
(iii) FALTA Special
Economic Zone.
(11) (i) The whole of the Commissioner of Customs Additional
States of West (Preventive), West Bengal. Commissioners, or
Bengal and Joint
Sikkim; Commissioners, or
(ii) Union Territory of Deputy
the Andaman and Commissioners of
Nicobar Islands. Customs working
under the control of
the Commissioner
of Customs
(Preventive), West
Bengal.
9. From a reading of column 3 of Table 2 under serial no.11 of the
aforesaid Notification, it would transpire that the Commissioner of
Customs (Preventive), West Bengal has been conferred with the
jurisdictional area in respect of the whole of the State of West Bengal
and Sikkim and Union Territory of the Andaman and Nicobar Islands.
Similarly, upon perusal of column 3 of Table 2 falling under serial
no.10, it would transpire that Principal Commissioner of Customs
(Port), Kolkata and Principal Commissioner of Customs (Airport and Air
Cargo Complex), Kolkata has been conferred with the jurisdictional area
of the ports of Kolkata and Haldia, Netaji Subhash Chandra
International Airport, the area under the jurisdiction of Kolkata,
Howrah and South Suburban Corporations, so much of the Hooghly
river as is downstream of the Northern limit of Kolkata Port and all
lands as are within 10 kms., of high water mark at spring tide on either
side of the river as also Andaman and Nicobar Islands and Falta Special
Economic Zone. Thus, a conjoint reading of column 2 under serial nos.
10 and 11 read with corresponding entry in column 3 of Table 2 of the
said notification, it would clearly appear that although, jurisdiction has
been conferred on the Commissioner of Customs (Preventive) in respect
of whole of the 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 the
jurisdictional area, inter alia, including Netaji Subhash Chandra
International Airport.
10. The aforesaid would in no uncertain terms make it clear that the
Principal Commissioner of Customs (Port), Kolkata and Principal
Commissioner of Customs (Airport and Air Cargo Complex), Kolkata,
have been conferred with the power to adjudicate all allegations or
violation of the Act arising out of those areas and are the sole
authorities to decide such issue. The above would become clear from
the language employed in the notification which delineates the
jurisdiction of the officers of the customs. The very nature of making
separate entries for the Port and Airport areas, makes it explicitly clear
that sole jurisdiction has been conferred on the Principal Commissioner
of Customs (Port), Kolkata and Principal Commissioner of Customs
(Airport and Air Cargo Complex), Kolkata to decide all violations in
respect of, inter alia, Netaji Subhash Chandra International Airport as
identified in column 1 under serial No.10 read with column 3 of Table 2
of the aforesaid Notification. As such I am unable to accept the
contention of Mr. Maiti that Commissioner of Customs (Preventive)
enjoy concurrent jurisdiction with the Principal Commissioner of
Customs (Port), Kolkata and Principal Commissioner of Customs
(Airport and Air Cargo Complex), Kolkata.
11. The aforesaid also finds support from the judgement delivered by the
Hon'ble Division Bench of this Court in the case of Commissioner of
Customs v. Md. Ahmed Ali Khan (supra). It is true that the
notification based on which the said judgement was delivered and the
notification which forms the subject matter of the present petition are
different, yet from the ratio of the aforesaid judgement, and from the
language employed in the notifications it would be amply clear that
when a specifed authority is conferred with the jurisdiction to consider
violation of provisions of the said Act, in respect of a particular
jurisdictional area, then it is that particular authority which shall have
the sole jurisdiction in respect of the said area notwithstanding the
overall jurisdiction of the State may vest with another authority.
12. Although Mr. Maiti, learned advocate, by placing reliance on the
judgement delivered by this Hon'ble Court in the case of Sheikh
Mohammed Sayeed v. Asstt. Collector of Customs (supra), has
contended that this Court ought not to interfere with the investigation
at this stage since, the investigation is yet to be completed, I am of the
view that since, the respondent No.5 did not have the jurisdiction to
initiate any proceeding including issuance of order of detention and
seizure cum inventory list under Section 110(1) of the said Act, the
custom authorities cannot be permitted to proceed with an inquiry/
investigation, the initiation whereof is without authority. All
proceedings/steps taken by the custom authorities on the basis thereof
are nonest.
13. Having regard to the aforesaid, the question whether by 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.
14. Accordingly, the notice/order of detention dated 5 th February, 2024,
including the order of seizure cum inventory list dated 6 th February,
2024, stand quashed. The respondent nos. 2 to 5 are directed to return
the goods to the petitioner. The aforesaid order, however, shall not
stand in the way of the respondent nos. 2 to 5 from initiating
appropriate proceeding against the petitioner by appropriate authority,
in accordance with law.
15. Accordingly, the writ petition is disposed of.
16. There shall be no order as to costs.
Later
17. After the aforesaid judgement and order is delivered, Mr. Maiti,
learned advocate representing the respondent nos. 2 to 5, prays for stay
of operation of the judgment/order to the extent this Court directs
return of the goods to the petitioner.
18. Such prayer is considered and refused.
All parties are to act on the basis of the server copy of this order duly
downloaded from the official website of this Court.
(RAJA BASU CHOWDHURY, J.)
akg/sm
