Shri. Abdul Rahim Abdul Kareem vs The Commissioner Of Customs,
2021 Latest Caselaw 3561 Kant

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 29TH DAY OF OCTOBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

        WRIT PETITION NO.8784 OF 2019(T-CUS)

BETWEEN:

SHRI. ABDUL RAHIM ABDUL KAREEM
S/O SHRI. A.R.ABDUL KAREEM,
NO.14, RBI COLONY EXTENSION,
RAJANNA LAYOUT,
1ST MAIN, 1ST CROSS,
JAYANAGAR 3RD BLOCK EAST,
BANGALORE - 560 011.
                                         ... PETITIONER
(BY SRI. BALASUBRAMANI V.R., ADVOCATE)

AND:

1. THE COMMISSIONER OF CUSTOMS,
   4TH FLOOR, TTMC/BMTC BUILDING,
   OLD AIRPORT ROAD, DOMLUR,
   BENGALURU - 560 071.

2. THE ADDITIONAL COMMISSIONER OF CUSTOMS,
   KEMPEGOWDA INTERNATIONAL AIRPORT,
   AIR CARGO COMPLEX,
   DEVANAHALLI,
   BANGALORE - 560 300.
                                     ... RESPONDENTS
(BY SRI.M B NARAGUND, ASG A/W
    SRI. DESHPANDE AMIT ANAND, ADVOCATE FOR R1& R2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER IN APPEAL NO.396/401/2018 DATED
19.12.2018(ANNEXURE-D) PASSED BY THE COMMISSIONER
OF CUSTOMS(APPEALS), BANGALORE.

    THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
                                2

                             ORDER

Petitioner having been found with various foreign

currency notes equivalent to INR 1,14,22,720/- along with

Indian Currency of Rs. 22,100/- was intercepted by the

officers of the Directorate of Revenue Intelligence, Zonal

Unit, Bangalore (hereinafter 'DRI'); the container & the

currency came to be seized on 16.05.2017 and thereafter

confiscated; his appeal against the same having ended in

vain, petitioner is knocking at the doors of Writ Court for

redressal.

2. After service of notice, the respondents having

entered appearance through the learned CGC, filed the

Statement of Objections, resisting the Writ Petition;

learned ASG appearing for the CGC vehemently opposes

the Writ Petition making submission in justification of the

impugned order.

3. Having heard the learned counsel for the

parties and having perused the Petition Papers, this Court

is inclined to grant indulgence in the matter as under and

for the following reasons:

(a) Shorn of bulky pleadings of the parties and the

documents produced by them in support thereof, the

essential question that arises for consideration relates to

the competence of the Joint Director, Directorate of

Revenue Intelligence, Bangalore, to issue the Show Cause

Notice dated 10.11.2017 u/s 124 of the Customs Act, 1962

(hereafter '1962 Act'); rest of the issues pale into

insignificance should the answer to the said question turns

out to be against the respondents.

(b) The subject Show Cause Notice at Annexure-A

apparently mentions section 124 of the 1962 Act; the

confiscation of the currency & the container were proposed

u/s 113 r/w 11(h) of this Act & section 11 of the Foreign

Trade (Development and Regulation) Act, 1992 and the

Foreign Exchange Management (Export and Import of

Currency), Regulations, 2000; the Show Cause Notice also

had proposed levy of penalty u/ss 114 & 114-AA of the

said Act; petitioner sent his reply within the prescribed

period of thirty days, a copy whereof is at Annexure-B,

inter alia raising the issue of competence; the said reply

having been rejected, confiscation of the currency & the

container was effected and fines in varying sums were

levied vide order dated 28.8.2018 by Additional

Commissioner of Customs, Bangalore; petitioner's appeal

No.396-401/2018 dated 19.12.2018 came to be negatived

by the first respondent-Commissioner v/o dated

19.12.2018.

(c) The moot question whether the officer of the

DRI namely the Joint Director who had triggered the

subject Show Cause Notice had power & competence, need

not detain the court even for a furlong, the same being no

longer res integra; the Apex Court in a very recent case ie.,

M/S CANON INDIA PVT. LTD Vs. COMMISSIONER OF

CUSTOMS, (2021) SCC Online SC 200, having discussed

the same inter alia in the light of sections 2(34), 6, 28, of

the Act, has observed that the Addl. Director General of the

DRI who had issued the Show Cause Notice of the kind,

lacked competence; relief to the litigant citizen has been

granted by the Apex Court with the following observations

at para 23 of the judgment:

"We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid, without any authority of law and liable to be set-aside and the ensuing demands are also set- aside."

The fact matrix of petitioner's case to the extent of

competence of the respondents is not much different from

the one treated in the said decision inasmuch as the Show

Cause Notice has been issued by the incompetent officer;

confiscatory order was made on the basis of the said Show

Cause Notice; petitioner's reply thereto is rejected; lastly

his appeal against the said order is also negatived; all

these elements are present in the above decision of the

Apex Court; that being the position, the relief to be granted

to the petitioner by any logic cannot be short of what has

been granted by the Apex Court to a like litigant, in the

absence of any exceptional circumstances being

demonstrated.

(d) The order in original and the order in appeal

are founded on the subject Show Cause Notice; the facts

stated in the Show Cause Notice are treated as the

foundational facts for these two orders; if the Show Cause

Notice is absolutely incompetent, what is stated therein

could not have been taken cognizance of to the detriment

of the citizen; here comes the maxim ex nihilo nihil fit

meaning "Nothing could come out of nothing. Zero

multiplied by zero remains zero." vide ASHWANI

KUMAR Vs. STATE OF BIHAR, (1997) 2 SCC 1. The

decision in DURGA PRASAD Vs. H.R.GOMES,

SUPERINTENDENT (PREVENTION) CENTRAL EXCISE,

NAGPUR, (LAWS (SC) - 1965-12-15 banked upon by

respondent inter alia related to the scope of power of

seizure of money in violation of prescribed procedure; such

violations ordinarily do not render the proceedings as a

whole, is true; but this is subject to the officer

accomplishing the seizure & confiscation being statutorily

clothed with the power/competence to undertake it;

however, that is not the norm invocable in this case which

is being decided on the ground of competence of

authorities in the light of the latest decision of Apex Court

in M/s. Cannon India, supra.

(e) Added to the above, in more or less a similar

fact matrix, a Co-ordinate Bench of this Court in

W.P.No.10773/2018 (T-CUS) C/w W.P.No.4628/2018 (T-

CUS) between SRI.MOHAN C. SUVARNA Vs. THE

PRINCIPAL COMMISSIONER OF CUSTOMS, decided on

14.7.2021 has accorded relief to the litigant therein

following the decision of the Apex Court in Canon India;

despite vociferous submissions, the learned ASG

Mr.Naragund ably assisted by the learned CGC Mr.Amit

Deshpande, is not in a position to point out the factual

difference between the case of the petitioner and the one

meticulously treated by the learned Co-ordinate Judge; it

hardly needs to be stated that the principle of equality

enshrined u/a 14 of the Constitution mandates the

judicial organ of the State to treat the like cases alike, lest

the unwarranted deviation should risk its invalidation.

In the above circumstances, this Writ Petition

succeeds; a Writ of Certiorari issues quashing the Show

Cause Notice & the orders impugned.

Costs made easy.

Sd/-

JUDGE

Snb/