Delhi High Court
Virsa Singh vs Union Of India And Ors. on 22 October, 2013
Author: Sanjiv Khanna
$~35.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 6990/2012
Date of decision: 22nd October, 2013
VIRSA SINGH
..... Petitioner
Through Mr. S.S. Arora & Mr. D.S. Chadha,
Advocates.
versus
UNION OF INDIA AND ORS.
..... Respondents
Through Mr. Mukesh Anand, Advocate for
UOI.
Mr. Satish Aggarwala & Mr. Amish
Aggarwala, Advocates for respondent No. 3.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJIV KHANNA, J. (ORAL):
We have heard the counsel for the petitioner, who submits that
the adjudication order in original dated 16th December, 1996 passed by
the Deputy Commissioner of Customs, IGI Airport, New Delhi was not
served on the petitioner. He submits that the petitioner subsequently
on 30th May, 2009 obtained copy of the said order and, therefore, the
appeal filed was not belated or barred by limitation. He submits that
copy of the adjudication order in original should have been served at
W.P. (C) No. 6990/2012 Page 1 of 5
least on the counsel for the petitioner. It is stated that the adjudication
order in original should have been sent to the address of the petitioner
at Germany.
2. In the writ petition the prayer made is that the respondents
should release the gold seized from the petitioner upon payment of
duty as applicable at that time and the respondents should compensate
the petitioner for the loss suffered due to illegal confiscation of gold.
In the amended writ petition, orders passed by the Government of India
and the Commissioner (Appeals) and the adjudicating authority in
original confiscating the gold have also been challenged.
3. Nine Kilograms of gold was seized from the petitioner on 27 th
August, 1994 at the Indra Gandhi International Airport after he arrived
from Frankfurt. Four Kilograms of gold was kept in the belt worn by
the petitioner and five Kilograms of gold was kept in a kangaroo pouch
worn by the petitioner under his shirt. The value of the gold at that
time in the international market was Rs.33,93,000/-. Panchnama was
drawn and the petitioner was arrested on 27th August, 1994.
Subsequently, the petitioner was released on bail by the Additional
Chief Metropolitan Magistrate on 3rd March, 1995. Show cause notice
dated 9th November, 1994 for adjudication proceedings was duly
served on him while he was in jail. This is accepted and admitted
position. The petitioner, however, disputes that he had received or was
W.P. (C) No. 6990/2012 Page 2 of 5
aware of the adjudication order dated 16th December, 1996 passed
pursuant to the show cause notice. It is submitted that the petitioner
came to know and became aware of the said adjudication order only in
2009 and thereafter had obtained copy of the same and had preferred
appeal before Commissioner (Appeals), which was dismissed on the
ground of delay and laches.
4. The appellate order passed by Commissioner (Appeals) dated
17th August, 2009 records that the order in original/adjudication order
dated 16th December, 1996 was sent to the petitioner at his last known
address vide dispatch entry No.11177 dated 23rd December, 1996 but
the said letter was returned with the remarks that the addressee had left
for Germany. Thereafter, the order in original was displayed on the
notice board vide dispatch entry No. 11183 dated 23rd December, 1996.
Under Section 153 of the Customs Act, 1962 clause (a) any order or
decision passed is required to be served by tendering it or by sending it
by registered post to the person for whom it is intended. Sub-clause
(b) stipulates that when the order/decision cannot be served in the
manner provided in sub-clause (a), the said order/decision can be
served by affixing it on the notice board in the customs house. The
said procedure has been followed.
5. The petitioner after being detained under the Customs Act, 1962
also suffered a detention order under COFEPOSA Act on 21st October,
W.P. (C) No. 6990/2012 Page 3 of 5
1994. Subsequently, he was granted parole. Thereafter, the petitioner
absconded and was declared a proclaimed offender on 29 th January,
1999. He did not appear in the criminal proceedings initiated under
Sections 132 and 135 of the Customs Act, 1962. We may record that
subsequently the petitioner filed an application dated 31st March, 2011
under Section 265B of the Code of Criminal Procedure, 1973 and
pleaded guilty. The customs authorities objected to the said
application on the ground that plea bargain provisions were not
applicable to the prosecution in question. The said application was
dismissed. On 9th February, 2012, the Metropolitan Magistrate
convicted the petitioner under Section 132 and 135(1)(a) of the
Customs Act, 1962 but was sentenced to undergo imprisonment for the
period already undergone. Customs authorities thereupon filed a writ
petition and the same was allowed. The petitioner challenged the order
in the writ petition by way of Special Leave to Appeal but has not been
successful.
6. As per the adjudication order in original, direction was made for
absolute confiscation of 9 Kilograms of gold and penalty of Rs.8 lacs
was imposed. The adjudication order was sent to the address of the
petitioner at Punjab but the same could not be served as the petitioner
was absconding. The petitioner cannot and should not be allowed to
take advantage of his own wrong, as he was absconding and
W.P. (C) No. 6990/2012 Page 4 of 5
deliberately did not appear before the courts/authorities. Once show
cause notice was issued and served on the petitioner, as accepted, he
was aware about the adjudication proceedings. The plea taken by the
petitioner that he came to know about the adjudication order only in
2009 is fallacious, wrong and cannot be accepted.
7. Looked from any angle, there is no merit in the present writ
petition and the same is dismissed.
SANJIV KHANNA, J.
SANJEEV SACHDEVA, J.
OCTOBER 22, 2013
VKR
