Jaspal Singh vs Union Of India
2000 Latest Caselaw 619 Del

ORDER

Arijit Pasayat, CJ.

1. Order of confiscation passed by Additional Commissioner of Customs, IGI Airport, New Delhi, directing absolute confiscation of gold bars, collectively weighing 466.400 gms., alongwith black colour adhesive tape used to wrap the seized gold which was confirmed in appeal and revision under the provisions of Customs Act 1962 (in short the "Act"), is the subject matter of challenge in this writ petition.

2. Factual aspects as noticed by the Customs Authorities and the Revisional Authority, in brief are as follows:

3. Petitioner a holder of Indian Passport coming from Hong Kong reported at red Channel and declared 200 mtrs. of textile and 50 pieces of wrist watches but on detailed examination 470 metrs of textile, 330 watches collectively valued at Rs. 64,200/- were found. At the exit gate petitioner was intercepted by a plain clothes Customs Officer. His personal search was conducted and four bars of gold weighing collectively 466.400 gms were recovered from his rectum. For the above goods valued at Rs. 64,200/- adjudicating authority imposed a redemption fine of Rs. 45,000/- and per-

sonal penalty of Rs.10,000/-. The same was deposited. The gold weighing 466.400 gms was also seized under Section 110 of the Act and show cause notice was issued by the adjudicating authority. The matter was adjudicated by order dated 15th July, 1999. Absolute confiscation of the impugned gold was ordered and penalty of Rs.1 lakh was imposed on the petitioner. The order of confiscation was challenged before the Commissioner of Customs (Appeals) [in short the "CC(A)"]. Said Authority on consideration of the statement recorded under Section 108 of the Act observed that petitioner did not declare the gold bars under seizure under Section 77 of the Act and attempted to import the same illegally in contravention of the notification No. 171/94 vide Exim Policy 1997-2002. Petitioner in his aforesaid statement also admitted the recovery and seizure of the gold as detailed in the panchanama dated 26.02.1999. He confirmed the order impugned before him. The matter was carried in revision before the Government of India, Ministry of Finance, Department of Revenue (hereinafter referred to as the "Revisional Authority"). The confiscation was held to be in order by the said authority, but penalty was reduced to Rs.50,000/-.

4. In support of the writ petition it has been submitted that there was no voluntary statement made. In any event notice under Section 102 of the Act was not sufficient and what was required to be done was compliance with the procedure under Sections 103 of the Act.

5. Sections 102 and 103 of the Act read as follows:-

"102. Persons to be searched may require to be taken before Gazetted Officer of customs or Magistrate-

(1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of the customs shall, if such person so requires take him without unnecessary delay to the nearest gazetted officer of customs or Magistrate.

(2) If such requisition is made the officer of customs may detain the person making it until he can bring him before the Gazetted Officer of customs or the Magistrate.

(3) The Gazetted Officer of customs or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) Before making a search under the provisions of section 100 or section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.

(5) No female shall be searched by any one excepting a female.

103. Power to screen or X-ray bodies of suspected persons for detecting secreted goods-

(1) Where the proper officer has reason to believe that any person referred to in sub-section (2) of section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before the nearest Magistrate.

(2) A magistrate before whom any person is brought under subsection (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person.

(3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed. he may make an order to that effect.

(4) Where a magistrate has made any order under sub-section (3) in relation to any person, the proper officer shall, as soon as practicable, take such person before a radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologist to screen or X-ray his body.

(5) A radiologist before whom any person is brought under subsection (4) shall, after screening or X-raying the body of such person, forward his report, together with any X-ray pictures taken by him to the Magistrate without unnecessary delay.

(6) Where on receipt of a report from a radiologist under subsection (5) or otherwise, the Magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advise and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction:

Provided that in the case of a femaleno such action shall be taken except on the advise and under the supervision of a female registered medical practitioner.

(7) Where any person is brought before a magistrate under this section, such magistrate may for the purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct. > (8) Nothing in this section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods.

6. The case at hand, according to us, is covered under sub-section (8) of 103 of the Act, wherein it has been provided that nothing in the said section shall apply to any person referred to in sub-section (1), who admits the goods liable to confiscation. Sections 102 and 103 deal with contextually different situations. Former provision is operative when any officer of Customs is about to search any person under the provisions of Section 100 or Section 101. If the person to be searched so requires, he has to be taken without unnecessary delay to the nearest gazetted officer of Customs or Magistrate. In the case of Section 103, the requirement of concerned person's option is not there, production without unnecessary delay before nearest Magistrate is a statutory requirement. The provision has application when the proper officer has reason to believe that goods liable to confiscation has been secreted inside a person's body. The requirement for production before Magistrate is not necessary when there is admission by a person of having secreted inside his body of goods liable to confiscation and voluntarily submits for suitable action. That being the position and in view of the factual findings recorded by the Authorities as set out above, we are not inclined to entertain this petition, which is accordingly dismissed.