Subhash Muljimal Gandhi vs Union Of India & Others
2011 Latest Caselaw 551 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+           Writ Petition (Civil) No. 578/2011


Subhash Muljimal Gandhi                ....Petitioner
                Through       IN PERSON.


                    VERSUS

Union of India & Others                  .....Respondents
                 Through      Ms. Gayatri Verma, Adv. for
                              Mr. Sachin Data, Advocate for UOI.
                              Mr. Mukesh Anand, Advocate for
                              respondents 2 & 3.


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?

                              ORDER

% 31.01.2011

We have heard Mr. Subhash Mujlimal Gandhi, who has

appeared in person and has contended that he was not served with

show cause notice dated 24th March, 1998 for confiscation of the gold

and personal goods under Section 111(d), 111(l) of the Customs Act,

1962 ('Act' for short) and why penalty should not be imposed under

Section 112(a) (b) of the Act. He states that he had not authorized Mr.

A.K. Srivastava, Advocate to appear and respond to the said notice.

2. It is stated in the writ petition that the petitioner is a Non

Resident Indian settled in Dubai since 1959 and had arrived from Dubai

to IGI Airport, Delhi on 2nd October, 1997. 125 pieces of gold biscuits

weighing 14.575 kgs valued at 67,04,500/- and misc. goods valued at

Rs.37,200/- were recovered and seized from him.

3. The case of the petitioner is that he was monitored right from the

aerobridge and intercepted at the baggage belt and thus prevented

from approaching the Red Channel Counter to declare the goods and to

pay the duty. The case of the respondent, Department of Customs, to

the contrary is that the petitioner had not declared the said goods.

4. The contention of the petitioner that he was not served with the

show cause notice dated 24th March, 1998 does not impress us. One

Mr. A.K. Srivastava, Advocate had filed a reply to the show cause notice.

It is stated in the order/letter dated 19th May, 2010 of the Joint

Commissioner of Customs that personal hearing was given to the

petitioner which was also attended by Mr. A.K. Srivastava, Advocate.

After considering the reply and contentions raised by the petitioner, the

adjudicating authority vide order No. 41/98 dated 11th January, 1998

ordered absolute confiscation of 125 gold biscuits weight 14.575 valued

at 67,04,500/- under Section 111(d) and 111(l) of the Act. The

adjudicating authority had also ordered confiscation of misc. goods

valued at Rs.37,200/- but gave option to the petitioner to redeem the

same on payment of redemption fine of Rs.50,000/-. Personal penalty

of Rs.5 lakhs was imposed on the petitioner under Section 112(a)(b) of

the Act.

4. The petitioner preferred an appeal but the same was dismissed

by the Commissioner (Appeal) by the order dated 24th May, 2005.

Thereafter, the petitioner preferred a revision petition which was

decided vide order No. 358/05 dated 6th December, 2005. The Central

Government modified the order in original dated 11th January, 1998 and

an option was given to the petitioner to redeem the seized gold on

payment of redemption fine of Rs.10.5 lacs. The personal penalty of

Rs.5 lacs was upheld.

5. In case the petitioner was not served with the show cause notice

and the petitioner had not authorized Mr. A.K. Srivastava, Advocate to

file reply, he would have raised the said contention in the appeal and

the revision. Not only this, the petitioner has complied with the order

passed by the Central Government dated 6th December, 2005 and paid

the redemption fine on 10th January, 2006 of Rs. 53,55,688/- @ 55% of

the gold value. He did not question and challenge the order of the

Central Government dated 6th December, 2005 till the filing of the

present writ petition in 2011. What has prompted the petitioner to file

the present petition is the fact that he has been 'acquitted' in the

criminal prosecution. The criminal prosecution is a separate proceeding

and the standard of proof required is different. Indian Evidence Act is

applicable to criminal prosecution and Code of Criminal Procedure 1973

applies. Copy of the order passed by the learned ACMM 'acquitting'

the petitioner has not been placed on record. Proceedings under

Sections 111 and 112 of the Act have attained finality and the petitioner

paid the penalty and redemption fine in 2006. Gold was released

thereafter.

6. We do not find any merit in the present petition and the same is

dismissed in limine.

SANJIV KHANNA, J.

CHIEF JUSTICE JANUARY 31, 2011 KKB