Tara Singh vs Joint Secretary To The Govt. Of ...
1999 Latest Caselaw 193 Del

JUDGMENT

J.B. Goel, J.

1. This is a petition under Article 226 of the Constitution of India seeking quashing of the order dated 27.1.1998 passed by respondent No. 1 in revision under Section 129DD of the Customs Act 1962 (for short 'the Act') dismissing the petitioner's revision petition and confirming the order dated 23.6.1997 passed by the Commissioner of Customs (Appeals) who had confirmed the order of the Additional Com-missioner, Customs except that the penalty was reduced from Rs. one lakh to Rs. 50,000/-, thereby maintaining the order confiscating foreign and Indian currencies amounting to Rs. 8,12,300/- and 'Katha' valued at Rs. 12,000/- which was allowed to be redeemed on payment of fine of Rs. 4,000/-, which were being exported illegally.

2. Briefly the facts are that on 17.8.1995 at about 17.00 hours the petitioner holding the Afganistan passport was checked in at the Pakistan International Airlines Counter in the Departure Hall of IGI Airport, New Delhi while going to Lahore by particular flight. He was carrying one brief ease as hand baggage and one plastic green bag as checked in baggage. The petitioner after clearing from immigration had reported at the Customs Counter but he had not declared about his possessing the Indian and foreign currencies and other goods seized from him. He was intercepted by the Customs Officer and on interrogation he had disclosed that he had sonic currency. On search of his baggage (brief case) in the presence of two panch witnesses the following currencies were found:-

1. 95,500/- Saudi Riyals

2. 500 US$ and

3. 32,800/- Indian Rupees all equivalent to Rs. 8,12,300/-.

3. Besides this 20 packets containing 10 small packets each of katha valued at Rs. 12,000/- (MV) was also recovered.

4. This currency and katha were seized under Sections 11 and 77 of the Act read with Sections 13(2) and 67 of the Foreign Exchange Regulations Act, 1973 (FERA) and Foreign Trade Development Regulation Act, 1992 (FTDR Act). The petitioner is alleged to have made a voluntary statement under Section 108 of the Act soon after the seizure where he had stated that he had come to the Airport for going to Lahore by Pakistan International Flight No. PK-0271 and admitted that he did not declare the amounts of currencies and other goods recovered from him at the Customs Counter and that he was carrying the same without any licence or permission from the Reserve Bank of India; He had further stated that he was tempted to carry these Foreign and Indian currencies to earn extra profit as the foreign currency has a good market value in Kabul and that he had never brought the foreign currency from abroad. A show cause notice dated 20.12.1995 was served on him about this recovery under Section 113(d) and 113(h) of the Act. In reply dated 15.1.1996 he took the plea that he has been falsely implicated and that he was forced/coerced to make involuntary statement under Section 108 of the Act, and that he had declared to the Custom Officer that he had imported the currencies and was taking the same back.

5. The learned Additional Commissioner (Customs), New Delhi rejected the defense plea and ordered confiscation of the Indian and the Foreign Currencies seized and also katha, with the option to redeem katha on payment of fine of Rs. 4,000/-. A penalty of Rs. one lakh under Section 114 of Act was also imposed.

6. In appeal the Commissioner of Customs (Appeals) maintained the order of confiscation, and fine however, he reduced the amount of penalty from Rs. one lakh to Rs. 50,000/-. His revision petition to the Government of India under Section 129DD of the Act was also rejected vide order dated 27.1.1998.

7. Learned counsel for the petitioner has contended that the Adjudicating Authority, Appellate Authority and the Revisional Authority have not considered the factual features represented by the petitioner and they have ignored the material evidence adduced by the petitioner including the documentary proof that the amounts were the sale proceeds of the petitioner in respect of sales of his house and a car made in Afganistan due to disturbed conditions there and he had to run away from that country. It is further contended that criteria and principles applied in the case of Joginder Singh (C.R. 264/97 decided on 18.3.1997) in similar circumstances were not applied in his the case, and thereby unreasonable discrimination has been made in similar circumstances. And that the order is not proper, valid and justified.

8. These contentions have been refuted by the learned counsel for the respondent who has contended that all the material and circumstances have been considered; and the orders have been passed by the authorities by well reasoned orders. Also that the plea that these amounts were the sale proceeds of the house and the car were not taken at proper time before the Adjudicating Authority or before the Appellate Authority and this plea was taken belatedly before the Revisional Authority and is an afterthought and still the Revisional authority has considered but rejected the same.

9. He has further contended that the scope of writ jurisdiction of this court is limited and this court is not to act as an Appellate Court or revisional Court and cannot reappraise the material placed before the Authorities which has been duly considered, and that there is no illegality or infirmity calling for interference by this court in exercise of extraordinary powers under Article 226.

10. We have considered the contentions, the impugned order passed in revision and the other material placed on record. It is well established that howsoever extensive the jurisdiction of the High Court may be under Article 226 of the Constitution of India it is not so wide or large as to enable this court to convert itself into a court of appeal or revision and examine for itself the merits of the case to find out whether the findings rendered by the departmental authorities are proper or not and whether there has been an omission on the part of the authorities to do so. High Court acts as a Court of supervisory jurisdiction. It is also well established that judicial review directed against the decision is confined to the examination of decision making process.

11. It is not disputed that the petitioner is a Afghan National; he was intercepted at the Departure Hall IGI Airport after he was checked in at the Pakistan International Airlines Counter and after clearance for immigration when he had reported at Customs Counter. It is also not disputed that the aforesaid Foreign and Indian currencies and the katha were actually recovered from his baggage after he had obtained clearance. It is not his case that he had made a declaration in writing about his carrying the aforesaid currencies and the katha with him, and had got clearance from Customs authority. It is not disputed that on his interrogation/inquiry it was discovered that he was carrying Foreign and Indian currencies. It is not his case nor he has produced any proof that he was lawfully taking the currencies and katha out of the country. He had taken the plea before the Adjudicating Authority that he had declared to the Custom Officer that he was in possession of the currencies in question before he was interrogated and that he had imported it earlier and was taking the same back. It is not his case that, if imported earlier he had declared or disclosed it when he may have so imported and how he may have acquired the same. The learned Adjudicating Authority after considering the circumstances and material has held that the petitioner had not declared about his possessing these currencies and the katha and that he had declared about possession of the currency only after he was asked by the Custom Officer after immigration clearance. The petitioner was going abroad, he was carrying Foreign and Indian currencies with him and Katha which he could not export without declaration and authorisation. These are liable to be confiscated by the Authorities under Section 113(d) and 113(h) of the Act and has been so confiscated. The Appellate Authority has upheld the order. No fault could be found in this finding.

12. However, on behalf of the petitioner some additional documents were produced before the Revisional Authority to show that these currencies were the sale proceeds of his house (which he had sold on 1.4.1995) and of a car. The Revisional Authority has not accepted this plea inter alia on the ground that no evidence was produced to show that the currencies were declared at the time of their import in India and further it has been noticed that Indian Currency is not freely trade able and that there existed restrictions on its export and import. Correctness of these findings is not disputed.

13. The learned Revisional Authority has also considered the plea that the currencies were the sale proceeds of his house and a car and has held that his case is distinguishable from the case of Joginder Singh (C.R. 246/97 decided on 18.3.1997) on the grounds that the petitioner had not filed relevant documents namely, (1) refugee status from U.N., (2) immediate retraction statement after his arrest and the reply of the Department thereof and (3) any application for bail and the reply of the Department.

14. The petitioner has now filed copies of two bail applications dated 18.8.1995 and 4.9.11995 (Annexures X-1 and F to the Rejoinder). The contents of first read as under:-

"Applicant is innocent, ignorant and has been wrongly detained since the applicant is a departure passenger and has truthfully declared the foreign currency which was the unspent Foreign Currency out of the foreign currency imported by him on earlier visit."

15. In this he had not disclosed how he had acquired the foreign currencies, when he had imported and if he had so declared at the time of import earlier. He has not taken the plea that the amounts of these currencies were the sale proceeds of his house and the car. In this application it is also not specifically alleged that his statement under Section 108 of the Act was made under coercion or involuntarily.

16. In the other application for bail dated 4.9.1995 (Annexure F) also he had not stated/disclosed how he had acquired the foreign currencies or that he had acquired the same by sale of his house and the car in Afganistan. He has made retraction of his statement made under Section 108 of the Act in this application, but that retraction prima facie is belated. The position that emerges is that if he had sold his house and car in Kabul and the amounts recovered from him are the sale proceeds thereof, he has not shown when he imported the same nor that he had made proper declaration at the time of its import. The authorities have given a concurrent finding that he was trying to export the currencies without declaration and unlawfully.

17. The revisional authority has considered the case of Joginder Singh (order dated 18.3.1997 in C.R. 264/97) but has distinguished it on the facts and circumstances of that case. A decision on facts would not be a precedent. Each case has to be seen on its facts and circumstances. No fault can be found with this finding based on facts for which there is material on record. As such it will not be permissible to interfere with the same by us in exercise of power of judicial review.

18. It is seen that the petitioner had placed before the Revisional Authority a copy of an exchange form, which is in persian language, (Annexure E) alongwith its English translation showing exchange of 16,120 US Dollars for 95,760/- Saudi Riyals and another amount of Rs. 50,000/- Indian Rupees equivalent to 1328 US Dollars. There is no material produced by the petitioner to show how he came to acquire the Saudi Riyals and also how and where he has disposed of the US Dollars (in excess of US $ 500) which he had got in exchange, as alleged.

19. The plea of the petitioner even otherwise does not seem to be bona fide and plausible. If he had sold his house and car in Kabul, that would show that he had left that country for good. In fact in this petition also he has pleaded that he had come to India from Afghanistan about 5-6 years ago. His family is also living in India. This is not his case that he was going back to settle in Afghanistan with his family. Then there would be no reason for his taking with him huge amounts of moneys in the form of foreign and Indian currencies while going out of the country. Apparently, he was trying to export these amounts out of the country illegally.

20. In the circumstances, we do not find any illegality or infirmity in the impugned order which may call for interference in exercise of extraordinary powers under Article 226 of the Constitution of India. This petition has no merit and the same is hereby dismissed.