Sh. Prit Pal Singh Uppal, S/O Sh. ... vs Union Of India (Uoi), Through Its ...
2005 Latest Caselaw 715 Del

JUDGMENT

Swatanter Kumar, J.

1. Prit Pal Singh Uppal, the petitioner herein, along with Sh. Inderpal Singh were intercepted by the DRI Officers while leaving for HongKong on 13th March, 2003. Upon personal search, foreign currency equivalent to Indian value of Rs.48,33,000/- was stated to have been recovered from their possession. When they were taken to Patiala, on 14th March, 2003 foreign currency of Rs.2,44,050/- is again stated to have been recovered but no statement of the petitioner was recorded on 14th March, 2003. Additional Commissioner of Customs confiscated the entire foreign currency under Section 113(d), 113(e) and 113(h) of the Customs Act, 1962 (hereinafter referred to as 'the Act') and also imposed a penalty of Rs.5 lakhs on each of the persons above stated, vide order dated 30th September, 2004. Aggrieved from the said order, appeal was preferred by the petitioner before the Commissioner of Customs (Appeals). Vide order dated 19th November, 2004, they were directed to deposit a sum of Rs.50,000/- each as pre-deposit for hearing of the appeals within two weeks from the date of the order. According to the petitioners, they were not able to comply with this condition due to their poor financial condition and therefore filed a revision petition under Section 129DD of the Act before the Government of India on 8th December, 2004. Joint Secretary of the Government of India, Ministry of Finance, did not remand the matter but himself decided the appeal on merits and reduced the penalty amount of Rs.5 lakhs to Rs. 4 lakhs in each case. In the present petition, the petitioners are questioning the legality and correctness of this order dated 16th March, 2005 passed by respondent no.2 and they also prayed that the orders passed by the lower authorities should also be quashed.

2. Before us the order is impugned on two grounds. Firstly, that there is violation of principles of natural justice and secondly that the penalty imposed upon the petitioners is grossly disproportionate to the gravity of the offence. Furthermore, the respondent no.2 has failed to consider the fact that the petitioner is the sole bread-earner, has serious financial constraints and the fact that the petitioner remained in custody for 15 months and lastly that the authorities should have taken into consideration the judgment of the Additional Chief Metropolitan Magistrate vide which the petitioner was sentenced only to undergo the imprisonment already undergone by him, and a fine of Rs.30,000/- was imposed upon the petitioner. In the light of all these special circumstances, the order of the authorities is liable to be quashed.

3. On the other hand, it is contended on behalf of the respondents that as is evident from the record, the petitioner is a frequent traveller and at the time when the searches were conducted upon the petitioners, nearly 15 air-tickets were taken into custody. The petitioner is not a carrier but is carrying on this activity of smuggling of foreign currency. It is also contended that there is apparent contradiction in the stand taken by the petitioner in regard to his financial constraints and the kind of money that has been recovered from the possession of the petitioner. The judgment of the Magistrate was duly looked into by the authorities and it is an order of conviction, and thus is of no advantage to the petitioner.

4. Learned Counsel for the petitioner while relying upon the judgment of a Division Bench of this Court in the case of Sh. Abu Sufiyan and Ors. v. Union of India and Anr., W.P.(C) No. 5449/2002 decided on 27th July, 2004 contended that non-consideration of the judgment of the Magistrate by the respondent authority tantamounts to non-consideration of a vital issue and as such the order should be set aside. This contention is without any merit. The facts of the case of Abu Sufiyan (supra) has no application to the facts of the case in hand. In the present case, admittedly, the arguments were heard when the case was reserved for orders. Thereafter, the petitioner had sent an application annexing the judgment of the learned Magistrate without even mentioning therein that the petitioner was requesting the authorities concerned to consider the said judgment for the purposes of reduction of penalty. The judgment was pronounced by the Court on 28th January, 2005 and the same was submitted to the Office of the Joint Secretary by the petitioner vide letter dated 24th February, 2005 making the following prayer therein:-

"In view of the foregoing, it is most respectfully prayed that the Revision Petitions of the appellants/applicants may kindly be disposed of as soon as possible. Appellants/Applicants."

5. This prayer practically stood granted to the petitioner as the order itself was passed by the said authority on 16th March, 2005. The other circumstances were also considered by the authorities in the impugned order and as such there is no merit in this contention. We may also notice here that conviction of the petitioner by the judgment of the learned Magistrate is not a circumstance of which the petitioner can take advantage as a matter of right. If the petitioner had been acquitted, it would be a different matter. The conviction, with the order of sentence limiting it to the period undergone and imposition of fine, is a factor which would go against the petitioner in showing that the petitioner was guilty of the offence and the action of the Department was not uncalled for. Reliance was also placed upon another judgment of this Court in the case of Shri Girish Rai Dhadwal v. Union of India and Ors., W.P.(C) No. 9883/2004 decided on 25th November, 2004 to contend that the penalty was completely or grossly disproportionate to the nature of the offence. In that case, the Court itself held that:-

"The Court would not normally interfere in the penalty imposed on the petitioner unless it is palpably evident that it is untenable and opposed to reason. In the present case the respondents have not been able to show as to what all relevant factors weighed in their mind while imposing such a heavy penalty of Rs. 7 lacs on the petitioner and more so when the penalties imposed on the co-noticee were reduced to Rs.50,000/- and Rs.15,000/-."

6. The bare reading of the above decision clearly shows that the principle of that case on facts is not applicable to the present case. It is difficult for us to arrive at a conclusion that the order impugned in the present writ petition is palpably untenable or is opposed to any reasoning. In the order, reliance was placed by the authorities upon the statement made by the petitioner under Section 108 of the Customs Act wherein even details of the foreign currency to be given to one Sh. Chattar Singh was recorded. The petitioners had failed to make a declaration under Section 77 of the Act as legal possession and attempt to export the foreign currency was in complete violation to the provisions of the Customs Act, read with Regulation 5 of Foreign Exchange Management Export and Merit Regulations 2006 as well as sub section (3) of Section 6 of Foreign Exchange Management Act, 1999. Taking the reasonable view, the authorities reduced the penalty of the applicant to Rs.4 lakhs. With that modification, the revision was not accepted.

7. In view of our above discussion, we find no merit in this petition. The same is dismissed, while leaving the parties to bear their own costs.