Ajit Singh vs Union Of India & Another
2009 Latest Caselaw 1767 Del

R-3
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 4931/1994

      AJIT SINGH                      ..... Petitioner
                             Through Ms. Shweta Singh, advocate for
                             Mr.R.M.Bagai.

                    versus

      U.O.I. & ANR                      ..... Respondents
                             Through Mr. K.K.Sharma, advocate.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                       ORDER

% 30.04.2009

1. Petitioner, Mr.Ajit Singh is an Afghan national. On 6th September,

1992 he was intercepted with foreign exchange equivalent to US$

10,343.00 and INR 841 at the international airport at Delhi before

boarding a flight to Dubai. The break-up of foreign currency found in the

possession of the petitioner is as under:-

                   Srl.No.             Amount
                      1.        Saudi Riyals   28,600
                      2         UAE Dirhams     2,425
                      3.        Pound Sterling 1,074

2. The foreign currency was seized and statement of the petitioner was

recorded under Section 108 of the Customs Act, 1962 (hereinafter referred

to as the Act, for short).

3. Show Cause notice dated 22nd January, 1993 under Section 124 of

the Act was issued to the petitioner. Petitioner pleaded not guilty and WPC NO.4931/1994 Page 1 replied to the said show cause notice. Additional Collector of Customs vide

Order dated 30th August, 1993 confiscated the entire foreign exchange and

Indian currency of Rs.841/-. In addition, personal penalty of Rs.50,000/-

was also imposed on the petitioner. Appeal filed by the petitioner was

dismissed by Collector of Customs (Appeal), I.G. Airport vide Order dated

13th October, 1993.

4. The petitioner preferred a Revision Petition under Section 129-DD of

the Act to the Government of India but the same stands rejected vide

impugned Order dated 15th June, 1994. Thus, confiscation of the entire

currency and penalty of Rs.50,000/- imposed on the petitioner stand

confirmed.

5. Learned counsel for the petitioner has raised two contentions before

me. It is submitted that the authorities below have not considered the

contention of the petitioner relating to exchange rate fluctuation and

secondly, foreign exchange to the extent of US$ 10,000.00 could not have

been confiscated. It is submitted that even if there was default of non-

declaration, it was to the extent of foreign exchange equivalent to US$

343.00 and not the entire amount equal to US$ 10,343.00.

6. In the statement of the petitioner recorded under Section 108 of the

Act immediately after the search at the airport, the petitioner had stated

as under:-

"I did not declare this foreign currency. I left Kabul 8 months earlier to Delhi because the conditions are very WPC NO.4931/1994 Page 2 bad there due to fighting. Therefore, I had to leave Kabul and obtain permit No. RC31934/Afghan/Delhi in the year 1992 dated 4.5.92 for living here. After coming to India, I hae been going to Dubai three-four times per month approximately. I take to Dubai ready-made garments from India and some times bring textiles from Dubai to India. I had brought currency of US Dollars 10,343 recovered from me today from my brother for buying textiles here. Bank rate was low. So, I was taking the same back. I had never taken foreign currency out of India earlier." (emphasis supplied)

7. The Additional Collector of Customs in his order dated 8 th

September, 1993 observed that the petitioner had made 11 visits to Dubai

during the last 3 months 12 days prior to 6th September, 1992. He

rejected the contention of the petitioner that he was a tourist and in his

order dated 30th August, 1993 has observed as under:-

" In the absence of any proof that the noticee was engaged in any legitimate export business and that he had documentary or otherwise proof of legal acquisition/possession and export of Indian and or foreign currency, it is established that the noticee attempted to improperly export the currency, seized on 6.9.92, adopting the modus-operandi that he being a holder of Afghani passport is entitled to importation/exportation of currency without declaration upto an amount equivalent to 10,000 US Dollars. Therefore, the seized currency are liable to confiscation under the provisions of Section 113(d) of the Customs Act, 1962 and for such an act of the noticee he is liable for a penalty under the provisions of Section 114(1) of the Customs Act, 1962."

8. Collector of Customs (Appeals) in his order dated 13th October, 1993

held that the petitioner was a foreign national and explanation given by WPC NO.4931/1994 Page 3 the petitioner was vague and his contention that he had brought the

foreign currency from abroad was unsubstantiated and incorrect. It was

held that the onus to establish that he had brought the foreign currency

into India was on the petitioner.

9. The petitioner had relied upon certificate dated 13th November, 1993

issued by Al Misbah Exchange, Dubai certifying that the petitioner- Mr. Ajit

Singh holder of Afghan passport was issued foreign currency as detailed

therein on 26th August, 1992. The said certificate was not dealt with by

both Additional Collector of Customs and Collector of Customs (Appeals). I

may note that these two authorities have not quoted and referred to

specific evidence that the petitioner had purchased foreign currency in

India but have proceeded on the basis that the onus was on the petitioner

to show source of the said foreign currency and presumed that he had

probably bought the said foreign currency in India. The Joint Secretary,

Government of India, while disposing of the revision petition for the first

time considered the certificate of the petitioner and his contention that he

had made frequent travels abroad for business purposes and these were

legitimate visits. The Joint Secretary while dismissing the revision petition

has given his reasoning as under:-

" After going through the records of the case, Government observe that the certificate of Al Misbah Exchange itself belies party's contention that the quantum of foreign exchange seized went beyond US$ 10,000 limit due to exchange rate fluctuations; for apart from the WPC NO.4931/1994 Page 4 currency said to have been converted 200 US Dollars were also seized. Thus the excess beyond US$ 10,000 was not on account of rate fluctuation. Even otherwise the lower authorities have given good reasons to disbelieve the story with which the Government agree. The applicant is unemployed and his frequent visits abroad for short durations (11 times to Dubai in three months) tell a different story.

The application being without merit is rejected."

10. The findings given by the Joint Secretary, Government of India, are

contradictory to some extent. On one hand, the certificate has been

referred to and then observed that as per the certificate, the quantum of

foreign exchange seized was beyond US$ 10000. While making the said

observation, the Joint Secretary has not taken into consideration the

buying and selling rates and exchange rate fluctuation. Moreover, it is the

exchange rate prevailing on the date when the petitioner had come to

India, i.e. 27th August, 1992, which is relevant. As on the said date any

foreign national could bring in India foreign currency equal to US$ 10,000.

Further, the Joint Secretary should have also examined and considered

whether the entire amount of US$ 10,343 should be confiscated and

accordingly penalty should be imposed. In the second portion of the order

dated 15th June, 1994 passed by the Joint Secretary, he has merely

observed that the reasons given by the lower authorities are good and the

petitioner was unemployed and had made frequent visits abroad. The

second finding may not be relevant if the petitioner was entitled to bring WPC NO.4931/1994 Page 5 foreign exchange upto US$ 10,000 into India without declaration.

Moreover, the order is cryptic and does not examine the pleas and the

contentions of the petitioner.

11. In these circumstances, I allow the present writ petition and quash

the order dated 15th June, 1994 passed by the Central Government and

remand the matter back to the Central Government to pass a fresh order

after examining the contentions of the petitioner.

12. The petitioner will furnish his latest address for service to the Joint

Secretary, Government of India, Ministry of Finance, Department of

Revenue within four weeks and fresh order will be passed after issuing

notice to the petitioner at his new address. The Central Government will

decide the revision petition independently and without being influenced by

any observations made in this order.

The writ petition is accordingly disposed of. No costs.

SANJIV KHANNA, J.

      APRIL 30, 2009
      P/VKR




WPC NO.4931/1994                                                       Page 6