Iqbal Ahmad Khan vs Collector Of Customs And Ors.
2013 Latest Caselaw 3823 Del

$~R-5A (Part-IB)
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Date of decision: 30th August, 2013.
+                     W.P.(C) 1395/1995

IQBAL AHMAD KHAN                                      ..... Petitioner
                           Through    Mr. Vivek Sood and Ms.
                           Janhavi Mahana, Advocates.

                           versus


COLLECTOR OF CUSTOMS AND ORS.            ....Respondent
                 Through  Ms. Meera Bhatia, Advocate for
                 UOI.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJIV KHANNA, J. (ORAL)

1. Iqbal Ahmad Khan, resident of Meerut City, U.P. and a citizen

of India, invokes writ jurisdiction of this Court with a prayer that the

respondent No.1 i.e. Collector of Customs, New Delhi should restore

and restitute the revolver imported by him.

2. In December, 1984, the petitioner visited Singapore and had

purchased a revolver (make: Smith and Wesson) and a double barrel

gun. He obtained a letter dated 24th December, 1984 from the High

Commission of India at Singapore that arms could be imported into

India under the Baggage Rules, if they were covered by a valid arm

possession licence.

3. On the petitioner's return to India from Singapore, the revolver

and the double barrel gun were detained under detention certificate

dated 8th January, 1985. The double barrel gun was subsequently

released to the petitioner on 30th July, 1985 and we are not concerned

with the said release. However, the revolver was not released and it

transpires that the same was sold on 18th August, 1986. As noticed

above, the petitioner has prayed for restoration and restitution of the

said revolver. The present writ petition was filed on or about 20 th

April, 1995 i.e. after more than 10 years of the said import and nearly 9

years after sale of the revolver by the Custom authorities.

4. On being questioned, learned counsel for the petitioner

submitted that the petitioner was informed about the sale of revolver

for the first time vide letter dated 23rd January, 1994 and, therefore, the

present writ petition should not be dismissed for delay and latches.

5. We have considered the contention but in view of the facts

narrated below, we feel that the present writ petition cannot be allowed

in view of the extraordinary delay and latches in approaching the

Court. On merits also, the petitioner should not succeed.

6. The detention certificate dated 8th January, 1985 records that

the petitioner as per his arm's licence had acquired another revolver on

4th April, 1979, which was sold on 14th December, 1984. As per the

Baggage Rules applicable a non-tourist passenger was allowed to

import as a part of his baggage without import licence but on payment

of customs duty, a fire-arm, subject to the condition that the passenger

should not have imported or otherwise acquired a foreign made arm of

the same category during the last 10 years. Explanation thereto

stipulated that revolver and pistol were considered to be of one

category of fire arm and gun and rifle fire-arm of another category. A

reading of the said explanation elucidates the reason why the double

barrel gun was released and why the revolver could not be released

after the import and detention vide detention receipt dated 8 th January,

1985. As noticed above, the double barrel gun was released on 30th

July, 1985.

7. There is no correspondence by the petitioner from 8th January,

1985 till 19th December, 1990, when a letter was written by the

petitioner to the Minister, Ministry of Finance, Department of

Customs. This was followed by letter dated 28th November, 1991,

which was written to the Collector of Customs, New Delhi. The

petitioner had stated that delivery of the revolver was refused to him

without any reason or show cause notice. No order was passed

indicating as to why the petitioner's rightful possession was

appropriated by the customs authorities. This contention of the

petitioner is clearly incorrect as the detention receipt categorically

spells out the reasons for such detention. The detention certificate was

issued and available to petitioner. It is apparent that the petitioner was

well aware of the fact that he had purchased a revolver in the said

category, which was sold on 14th December, 1984. He was to satisfy

that he was entitled to import the revolver under the baggage rules.

8. Interestingly, in his letter dated 19th December, 1990 written to

the Minister, the petitioner had stated that he made several visits to the

Customs Department before the gun was released on 30 th July, 1985,

but delivery of revolver was refused on the ground that its licence was

not older than 10 years and, therefore, he was not entitled to import the

revolver. This clearly indicates that he was informed that he could not

have imported the revolver within 10 years in case he had imported a

revolver or had acquired same category foreign fire arm in last 10

years.

9. Assistant Collector (Custom Policy) vide letter dated 26th

September, 1991, informed the petitioner that he should send a clear

copy of the detention receipt to the said office in view of his letter

dated 19th December, 1990 addressed to the Minister. Thereafter, the

petitioner wrote letter dated 27th December, 1993 i.e. after more than

two years reiterating the earlier facts. In this letter he has

categorically referred to the remark on the detention receipt to the

following effect:-

"Pax had acquired a revolver on 4.4.79 which was

sold on 14.12.84 as per Possession Dup. Licence No.202/P.S. Railway Road, Meerut.

10. This again indicates that the petitioner was aware and conscious

of the problem as to reason why the revolver had not been released.

The petitioner was informed vide letter dated 4th February, 1994, that

they had looked into the records and the revolver in question was

detained by the detention certificate as there was violation of the

Baggage Rules. The petitioner had failed to furnish proof that the

earlier revolver purchased by him was of Indian origin. The petitioner

should have produced the same while seeking clearance of the gun or

even subsequently. In these circumstances, the revolver was sold after

more than one year of detention, on 18th August, 1986.

11. Learned counsel for the petitioner has submitted that no show

cause notice was issued before sale of the revolver. Our attention has

been drawn to Section 150 of the Customs Act, 1962. In this regard,

we would like to state that the revolver in question was sold under

Section 48 of the Customs Act, 1962 and the Custom authorities in

their letter dated 4th February, 1994 had rightly drawn attention of the

petitioner to Instruction No.6 of the detention receipt to the effect that

"if the goods are not cleared within two months of the detention or any

period extended by the competent authority, action to dispose of goods

under relevant provisions of the Customs Act, 1962 would be

initiated". Section 48 of the Customs Act is clearly applicable as the

imported item, i.e. the revolver, is an arm defined under the Arms Act,

1959. Even with the writ petition we note that the petitioner has not

filed any document or proof to show that the earlier revolver

held/owned by him was of Indian make and origin.

12. In view of the aforesaid position, we do not find any merit in the

present writ petition and the same is dismissed. However, there will be

no order as to costs.

SANJIV KHANNA, J.

SANJEEV SACHDEVA, J.

AUGUST 30, 2013 NA