Jaspal Walia vs Uoi
2013 Latest Caselaw 3044 Del

$~Part IB (R-23 & 24)
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 18th July, 2013
+                         W.P.(C) 1366/1995
      JASPAL WALIA                                     ..... Petitioner
                          Through    Mr. Sankalp Goswami and
                          Mr.Akshat Rehani, Advocates.

                          versus

      UOI                                              ..... Respondent
                          Through

+                         W.P.(C) 2632/1995

      MOHINDER SINGH WALIA                      ..... Petitioner
                   Through    Mr. Sankalp Goswami and
                   Mr.Akshat Rehani, Advocates.


                          versus
      UOI & ORS.                                      ..... Respondents
                          Through

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

SANJIV KHANNA, J. (ORAL)

This common order will dispose of the two writ petitions filed

by wife and husband, namely, Jaspal Walia and Mohinder Singh

Walia. The two petitioners came back to India from London on 22nd

September, 1990 and on inquiry by the Customs Officers had declared

that they were not carrying dutiable goods except imported goods

within the permissible limit. They were permitted to proceed towards

the exit gate, where they were intercepted. Jaspal Walia was found to

be wearing 8 gold bangles and two necklaces, weighing 195 gms.

Mohinder Singh Walia was found to be wearing a gold „Kara‟

weighing 55 gms. These were seized vide panchnamas dated 22nd

September, 1990. At this stage, we may note that child of the two

petitioners was also found to be wearing gold articles.

2. Subsequently, show cause notices were issued and adjudication

orders dated 7th February, 1992 and 24th July, 1991were passed holding

that the petitioners had smuggled gold into India which was liable to be

confiscated under Section 119 of the Customs Act, 1962 (Act, for

short). Reference was also made to Section 111 of the Act. Penalty of

Rs.10,000/- and Rs.400/- was imposed on Jaspal Walia and Mohinder

Singh Walia, respectively. We shall be again referring to these orders

while dealing with the contention of the petitioners.

3. In the first appeal Jaspal Walia partly succeeded, as it was

directed that 4 bangles of 23 carat plus purity should be confiscated,

but other 4 bangles and two necklaces of less than 23 carat purity

should be released on payment of fine of Rs.10,000/-. This order was

passed giving benefit of doubt in respect of four bangles and two

necklaces and after observing that there was violation of Section 77 of

the Act. The penalty amount was reduced from Rs.10,000/- to

Rs.5,000/-. In the case of Mohinder Singh Walia, however, no benefit

or relief was granted. Both Jaspal Walia and Mohinder Singh Walia

filed revision petitions under Section 129 DD of the Act, but did not

succeed.

4. Learned counsel for the petitioners states that the petitioners

were wearing gold articles on their body and thus there was no

concealment. It is further submitted that purity of the gold articles was

not tested by an authorized laboratory and the petitioners had made a

request for re-test and re-examination of the gold articles, which was

refused and rejected. He has placed reliance on a decision of Customs,

Excise and Gold Tribunal, Mumbai in the case of Uma Balasaraswathi

Vs. Collector of Customs decided on 3rd August, 1987.

5. At the outset, we notice that factual disputes have been raised.

As a writ Court, we cannot go into and re-examine the correctness of

the factual findings as an appellate court. We are primarily concerned

and have to decide whether there is any error or lapse in the decision

making process and whether the decision taken is fair and just and

takes into consideration the relevant facts and nothing relevant has

been ignored. It is clear from the "panchnama" that the two petitioners

were found to be wearing substantial quantity of gold articles on their

body after they arrived from London on 22nd September, 1990. Jaspal

Walia was found to be wearing 8 gold bangles and 2 gold necklaces

weighing 195 gms. A certified gold smith was called at the spot and

after testing, he certified that 4 bangles weighing 105 gms. were of 23

carat plus purity. In other words, they were of 24 carat gold.

Similarly, in the case of Mohinder Singh Walia, the gold „Kara‟

weighing 55 gms. was tested and examined and the jewellery appraiser

who opined that the „Kara‟ was unused, having no varnish and was of

23 carat plus purity and in crude form. He further opined that

jewellery of this kind was normally not worn in India or abroad. The

said appraiser was cross-examined during the course of adjudication

proceedings on behalf of Mohinder Singh and had stated that the

„Kara‟ was not polished and did not have any craftsmanship, but joint

was visible. He affirmed that jewellery of this type was normally not

worn in India or abroad. Order passed in the case of Jaspal Walia

clearly records that she did not appear and had repeatedly sought

adjournments before the original adjudicating authority.

6. Learned counsel for the petitioner has drawn our attention to the

affidavit of Kalyan Karmkar resident of Allahabad, wherein he had

stated that he was a goldsmith and had crafted one gold „Kara‟ and four

bangles from old gold jewellery given to him by Jaspal Walia on 10th

August, 1989. As per the said affidavit, he had crafted one gold „Kara‟

weighing 60.400 gms and 4 gold bangles weighing 116.300 gms.

Similarly, on 3rd November, 1989, he received from Mohinder Singh

Walia, gold ornaments and had crafted a gold chain with pendant

weighing 21.00 gms and six bangles of white gold weighing 60 gms.

The said affidavit does not indicate whether Kalyan Karmkar had

issued any bill or receipt for labour charges or for re-crafting the old

jewellery. Even otherwise, we find that the gold „Kara‟ and the 4

bangles seized because of their weight, do not match with the

description of the gold „Kara‟ and four bangles mentioned in the said

affidavit. The four gold bangles were weighing 105 gms. whereas the

4 gold bangles mentioned in the affidavit were weighing 116.300 gms.

The gold „Kara‟ seized was weighing 55 gms., whereas as the gold

„Kara‟ mentioned in the affidavit was weighing 60.400 gms. We also

note that the gold articles seized were of 23 carat plus purity.

7. Judgment of the tribunal in Uma Balasaraswathi (supra) does

not help or assist the petitioners. The tribunal went into facts as a fact

finding authority. The appellant in the said case along with his two

daughters and mother-in-law had gone to the red channel of the

Customs Baggage hall and had declared four gold bangles which she

was wearing. It was observed that the department had not obtained any

expert opinion and, therefore, the tribunal was not sure that the gold

articles seized were in fact gold bullion. In the present case, the

authorities had taken precaution by taking expert opinion of a certified

gold smith and jewellery appraiser. The said jewellery appraiser was

cross-examined by advocate of Mohinder Singh Walia. As noticed, the

case of Jaspal Walia went unrepresented as she did not appear before

the adjudicating authority.

8. Viewed from all angles, we do not think that the impugned

orders require and justify interference. They record factual findings

and have taken notice of the material and relevant facts. The writ

petitions are accordingly dismissed. No costs.

SANJIV KHANNA, J.

SANJEEV SACHDEVA, J.

JULY 18, 2013 NA