Delhi High Court
Shri Sanjeev Wadhwa & Anr. vs Union Of India & Ors. on 2 May, 2011
Author: Sanjiv Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 819/2010
Date of order: 2nd May, 2011
SHRI SANJEEV WADHWA & ANR. ..... Petitioners
Through Ms. Sangita Bhayana,
Advocate.
versus
UNION OF INDIA & OTHERS ..... Respondents
Through Mr. Mukesh Anand, Advocate
for respondent No. 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 ?
SANJIV KHANNA, J.:
The petitioners, Sanjeev Wadhwa and Rajeev Wadhwa
had preferred revision petitions under Section 129 DD of the
Customs Act, 1962 (Act, for short) against the orders imposing
personal penalty of Rs.5,00,000/- and Rs.2,00,000/-
respectively passed by the Additional Commissioner of
Customs and confirmed in appeal by the Commissioner of
W.P. (C) No. 819/2010 Page 1 of 5
Customs (Appeals).
2. The impugned order dated 17th December, 2009 passed
by the Joint Secretary, Government of India, records the factual
matrix and how the custom officers had intercepted one
passenger Krishan Kumar Gupta with foreign currency
equivalent to Rs.52,27,887/- and Indian currency of
Rs.2,00,000/-. It is stated that Krishan Kumar Gupta in his
voluntary statement recorded under Section 108 of the Act had
implicated Rajeev Wadhwa, who was a Director of Mahavir
Forex Private Limited. The said Rajeev Wadhwa was detained
under the provisions of COFEPOSA Act, 1974. Sanjeev
Wadhwa was also one of the Directors of the said company.
The impugned order rejects the appeal recording as under:
"6. Government has carefully gone
through the case records, order-in-
original, order-in-appeal and written as
well as oral submissions. Since the
issue involved is same, both revision
applications are taken up together for
decision by this single order.
7. On perusal of records, it is
observed that the passenger Shri
Krishan Kumar Gupta had stated that
the seized foreign currency equivalent to
Rs.43,37,704/- was handed over to him
by Shri Rajeev Wadhwa Director M/
Mahavir Forex (P) Ltd. The second
W.P. (C) No. 819/2010 Page 2 of 5
applicant Shri Sanjeev Wadhwa is
another Director of said company. Both
the applicant failed to appear before
Customs for tendering their statement
despite repeated summons issued to
them during investigations. Department
has also filed complaint against them in
court of law for non-compliance of
summons. They have not availed the
opportunity of clarifying their position at
the relevant time. As such their plea that
they were falsely implicated cannot be
relied at this stage. Commissioner
(Appeal) has discussed in findings of
impugned orders the facts gathered
during investigations which prove that
applicants were involved in said illegal
exportation of foreign currency.
Government agrees with the findings of
Commissioner (Appeal) and finds no
infirmity in the said orders-in-appeal.
Therefore, Government uphold the said
orders-in-appeal."
3. Learned counsel for the petitioners has rightly drawn our
attention to various contentions and issues which were raised
before the authorities. He has also drawn our attention to the
order passed by the Additional Commissioner of Customs
imposing penalty and contentions and issues raised by the
petitioners. One of the question raised relates to scope and
ambit of Section 108 of the Act and to what extent the said
statement is admissible against a third party when the said third
party has not been given right to cross-examination. It is
W.P. (C) No. 819/2010 Page 3 of 5
submitted that the petitioners have been implicated only on the
basis of the statement by the third person.
4. The impugned order passed by the Joint Secretary,
Government of India, dated 17th December, 2009 is cryptic and
devoid of reasons, which are heart and soul of any quasi
judicial order. The impugned order does not even refer to the
submissions made on behalf of the petitioners,
evidence/material relied upon by the petitioners and deal with
them. The legal submissions have not been adverted to and
examined. It may be noticed here that the order passed by the
Additional Commissioner of Customs is a very detailed order
referring to various aspects, including the legal issues and
contentions raised by the petitioners. It is impossible to
decipher from the impugned order what weighed and mattered
with the revisionary authority and the impugned order merely
makes general references and has gone on to record "findings"
without any discussion and reference to material. In these
circumstances, the impugned order dated 17th December, 2009
is set aside and the matter is remanded to the Joint Secretary,
Government of India, for fresh adjudication. To cut short the
delay, the petitioners are directed to appear before the Joint
W.P. (C) No. 819/2010 Page 4 of 5
Secretary, Government of India, on 30th May, 2011 at 2.30
p.m., when a date of hearing will be fixed. This order should
not be construed as observations on the merits on the
contentions of the parties.
The writ petition is disposed of.
SANJIV KHANNA, J.
CHIEF JUSTICE
MAY 02, 2011
VKR
