Kerala High Court
T.X.Harry vs Cochin Port Trust on 22 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
WP(C) NO. 32187 OF 2011
PETITIONER:
T.X.HARRY, S/O.XAVIER, AGED 63 YEARS,
THUNDIPARAMBIL HOUSE, 16/59A, CHEMMENS ROAD,
THOPPUMPADY P.O., COCHIN -682005.
BY ADVS.
SRI.V.J.MATHEW (SR.)
SRI.BIJISH B.TOM
SRI.VIPIN P.VARGHESE
RESPONDENTS:
1 COCHIN PORT TRUST
CHAIRMAN, WILLINGDON ISLAND, COCHIN - 9.
2 THE COMMISSIONR OF CUSTOMS OFFICE OF THE
COMMISSIONR OF CUSTOMS, CUSTOMS HOUSE, WILLINGDON
ISLAND, COCHIN - 682009.
3 INDIA GATEWAY PVT.LTD.- D.P.WORLD
INTERNATIONAL CONTRAINER TRANSHIPMENT, TERMINAL
(ICTT),KOCHI 682504, REPRESENTED BY, ITS CHIEF
EXECUTIVE OFFICER.
4 THE COMMANDANT CENTRAL INDUSTRIAL
SECURITY FORCE, WILLINGDON ISLAND,COCHIN-682009.
5 UNION OF INDIA REPRESENTED BY ITS
SECRETARY, MINISTRY OF SHIPPING, NEW DELHI, PIN -
110001.
6 STATE OF KERALA REPRESENTED BY ITS
SECRETARY, DEPARTMENT OF HOME, SECRETARIAT,,
THIRUVANANTHAPURAM PIN - 695001.
7 MINISTRY OF COMMERCE AND INDUSTRY
REP BY ITS SECRETARY ,UDYOG BHAWAN,NEW DELHI - 110011
8 DEVELOPMENT COMMISSIONER
VALLARPADOM SPECIAL ECONOMIC ZONE, KAKKANAD ,COCHIN
682037
9 MINISTRY OF DEFENCE
REP BY ITS SECRETARY, SOUTH BLOCK, NEW DELHI 110011
WP(C). 32187/2011 :2:
SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R6
SRI.V.ABRAHAM MARKOS FOR R1
SREELAL N. WARRIER, STANDING COUNSEL, CENTRAL BOARD OF
EXCISE & CUSTOMS - R2
SHRI.P.VIJAYAKUMAR, ASG OF INDIA FOR R4 & R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C). 32187/2011 :3:
JUDGMENT
S. MANIKUMAR, CJ
Instant writ petition is filed for the following reliefs:
a. issue a writ of mandamus or any other appropriate writ, direction or
order, commanding the respondents to take immediate steps to jointly
implement proper security measures by installing scanners at the 1 st
respondent Cochin Port's main gates and wharf gates, and at the entry
and exit gates of the 3rd respondent terminal.
b. issue a writ of mandamus or any other appropriate writ, direction or
order, commanding the respondents to implement proper security
measures at the 1st respondent port and the 3rd respondent terminal, and
not to prevent Customs officials/DRI and other Government security/
intelligence officials from examining the import / export / transshipped
containers.
c. issue a writ of mandamus any other appropriate writ, direction or order,
commanding the respondent Nos.1 and 3 not to prevent Customs officials
and other Government security/ intelligence officials under the cover of
SEZ notification from doing their duty and to declare that Customs officials
and other Government security / intelligence officials has unrestricted
access to examine the import and export/ transshipped cargo / containers
as provided under Customs Act without restriction.
WP(C). 32187/2011 :4:
d. Grant such other reliefs as this Hon'ble court may deem fit and proper
under the facts and circumstances of the case.
e. issue a writ of certiorari, appropriate writ, direction or order quashing
Exhibit P7 order dated 19.03.2008 issued by the Development
Commissioner, Cochin (respondent No.8).
f. issue a writ of certiorari, appropriate writ, direction or order calling for all
records leading to Exhibit P7 and quash the same.
2. Facts leading to filing of the writ petition are that, petitioner is a resident of
Kochi city. The main relief sought for in this writ petition is for a direction to the
respondents to take urgent steps, in order to implement proper security measures, at
the India Gateway Pvt. Ltd.- D.P. World International Container Transshipment
Terminal (ICTT), Vallarpadam, Kochi - 3 rd respondent, operated by the 3rd respondent
and also at Cochin Port, to prevent illegal import and export of contraband articles
from/to India.
3. The petitioner also seeks to quash Exhibit P7 order dated 19.3.2008 passed
by respondent No.8 - Development Commissioner, Vallarpadam Special Economic
Zone, Cochin, granting Special Economic Zone (SEZ) Status accorded to the 3 rd
respondent - International Container Transshipment Terminal (ICTT) at Vallarpadam.
4. According to him, the area comes within the jurisdiction of the 1 st respondent
- Cochin Port Trust, Willingdon Island, Kochi, which is the Authority controlling Cochin
Port covering Ernakulam Wharf, Mattancherry Wharf and Tanker Jetty. However,
WP(C). 32187/2011 :5:
subsequent to the commissioning of the International Container Transshipment
Terminal (ICTT) at Vallarpadam, the entire container operations have been shifted to
Vallarpadam.
5. According to the petitioner, the entire security of the 1 st respondent Port and
the 3rd respondent International Container Transshipment Terminal is controlled by the
4th respondent/Central Industrial Security Force as per the security plan issued for
Indian ports. It is the grievance of the petitioner that no proper security or
precautionary measures are implemented by the 1st respondent, Cochin Port Trust, or
the 3rd respondent Terminal, to check the cargo/ vehicles/containers by Customs/DEI
inside Vallarpadam ICT Terminal or Wharf gate of Cochin Port, or at the entry point
gate of Cochin Port, at Willingdon Island.
6. It is the case of the petitioner that as per the container shipment
procedure, all the export containers shall be stuffed with export cargo, in the presence
of Customs Officers, at the warehouse of the exporter or at the customs notified area.
After stuffing the cargo, as declared with the customs as per shipping bill, the customs
seals are put on the containers. Once the customs seal is put, the containers are
brought to the Port for shipment. After verifying that the customs seal is intact, the
Customs Officials present in the Port's Terminal will permit loading of the containers
on board the vessel.
WP(C). 32187/2011 :6:
7. According to the petitioner, subsequent to the commissioning of
Vallarpadam Container Terminal, there is no checking of containers inside the
Terminal as 3rd respondent - India Gateway Pvt. Ltd. - D.P. World is refusing
permission under the wrap of SEZ. According to him, there is no scientific inspection
system, such as a scanner, installed in the 1st respondent Port or 3rd respondent
Terminal, to scan all the import and export containers entering the port/terminal by
Customs. The Customs could not implant Electronic Data Interface system inside the
Vallarpadam Terminal, due to the adamant stand taken by the 3 rd respondent.
Therefore, according to the petitioner, this situation is very delicate, and security &
safety of the country is at stake.
8. In these circumstances, the 1st respondent Port and the 3rd respondent -
India Gateway Pvt. Ltd. - D.P. World, ought to have installed scanning machines in
the port/terminal premises, GPS should be fixed in all the containers, Electronic Data
Interface and other security systems to be set up in co-ordination with the 2 nd
respondent - Commissioner of Customs, Kochi. Hence, this public interest writ
petition is filed for the reliefs stated supra.
9. A detailed counter affidavit is filed by the Commissioner of Customs,
Willingdon Island, Cochin, 2nd respondent, by which, averments and the prayers
sought for in the writ petition have been addressed as hereunder:
10. It is stated by the 2nd respondent in the counter affidavit that for the
WP(C). 32187/2011 :7:
effective checking of import/export containers and proper monitoring of container
movements, Commissioner of Customs - the 2nd respondent, has already initiated
actions for installing container scanners and establishing Indian Customs Electronic
Data Interchange System (ICES) connectivity.
11. The Directorate of Logistics has been requested to provide container
scanners and requested the Chairman, Cochin Port Trust - the 1 st respondent and
M/s. IGTPL - the 3rd respondent, to provide required space for installation of
container scanners. Request was also made to M/s. India Gateway Terminal Private
Limited - the 3rd respondent, to provide space and infrastructural facilities for
establishing Indian Customs Electronic Data Interchange System (ICES)
connectivity.
12. It is also stated by the 2nd respondent that Customs officers are deployed
at entry gates of wharves at Cochin Port, to monitor movement through the gates.
However, the Customs Department has no control over the main exit/entry gates of
the International Container Transshipment Terminal, Vallarpadam.
13. Role of customs is limited to verification of seals of import and export
containers at inner gates. As the unit functions within the Special Economic Zone,
this issue has already been taken up with the unit, as well as the Development
Commissioner, Special Economic Zone. No scanning facilities are available either at
Cochin Port or at the International Container Transshipment Terminal, Vallarpadam.
WP(C). 32187/2011 :8:
14. At present, there are no facilities for examination of cargo at the
International Container Transshipment Terminal, Vallarpadam. The containers are
moved to Cochin Port or to any of the Container Freight Stations for examination.
15. With reference to the averment in paragraph (6) of the writ petition, it is
stated by the 2nd respondent that no examination facility or container scanners are
available at the International Container Transshipment Terminal, Vallarpadam.
Export containers stuffed at Container Freight Stations/Cochin Port/Warehouses etc.,
are permitted entry, at the International Container Transshipment Terminal, after
verification of the seals of the containers. Likewise, imported containers are moved
to Container, after Freight Stations/Cochin Port/Warehouses verification of the seals
by Customs officers, at International Container Transshipment Terminal.
Connectivity to Indian Customs Electronic Data Interchange System is yet to be
established, as the unit has not provided the required infrastructure facilities and
area, demarcated as a non-processing area, for discharge of the statutory functions
of Customs Department, in relation to operations other than the authorized
operations.
16. As regards the averments in paragraph No. 7 of the writ petition, it is
stated that scanning facility is not available at the International Container
Transshipment Terminal, Vallarpadam. Entry of export containers into the terminal
and removal of imported containers out of the terminal are permitted, after
WP(C). 32187/2011 :9:
verification of the seals, by the Customs officers.
17. Existing policy does not prescribe for 100% examination of the cargo. Only
containers selected for examination are moved to Container Freight Stations/Cochin
Port/Warehouses for detailed examinations. Customs does not have control over the
main entry/exit gate of the Terminal or free access over the entire area. Further,
proper monitoring of the container movement is hampered, due to non-
establishment of Indian Customs Electronic Data Interchange System connectivity by
M/s. India Gateway Terminal Private Limited - the 3rd respondent.
18. On the averments in paragraphs (8) and (9) of the writ petition, it is stated
by the 2nd respondent that, one export container with Red Sanders (an internationally
banned wood) seized at International Container Transshipment Terminal,
Vallarpadam, by Directorate of Revenue Intelligence was stuffed at the customs
notified Container Freight Station at Willingdon Island. The Container was originally
stuffed with the declared cargo i.e., rubber mats, at the Container Freight Station
and sealed by the customs. Thereafter, the original cargo was removed and replaced
with the contraband wood, and moved to the International Container Transshipment
Terminal for shipment. Such incidents/attempts can be detected, if container
scanners are available at the International Container Transshipment Terminal and
Cochin Port.
19. It is further stated that the Commissioner of Customs - the 2 nd
WP(C). 32187/2011 : 10 :
respondent, had already taken up the issue of installation of container scanners with
the Directorate of Logistics, New Delhi and requested the Chairman, Cochin Port
Trust - the 1st respondent and the 3rd respondent - India Gateway Terminal Private
Limited, to provide required space for installation of the container scanners.
20. It is also stated that the International Container Transshipment Terminal
at Vallarpadam Special Economic Zone is approved as a unit with 'Port Services' as
the authorized operation. The unit operates in the processing area of the Special
Economic Zone. As per provisions of the Special Economic Zones Act, 2005, and
Special Economic Zones Rules, 2006, any operation other than the authorized
operation, has to be carried out from the non-processing area of the Special
Economic Zone. Handling and clearance of import/export cargo to Domestic Tariff
Area (DTA), clearance of vessels, anti smuggling operations etc., do not form part of
the authorized operation and are subject to the provisions of the Customs Act, Rules
and Regulations.
21. In fact, more than 95% of cargo handled at the International Container
Transshipment Terminal, pertains to Domestic Tariff Area (DTA). As per agreement
between International Container Transshipment Terminal and the developer i.e.,
Cochin Port Trust, the entire business of Domestic Tariff Area (DTA) cargo, except
bulk, has been shifted from Cochin Port to International Container Transshipment
Terminal. An area at the Special Economic Zone has to be demarcated as a non-
WP(C). 32187/2011 : 11 :
processing area for these purposes from where the officers of customs could
discharge the statutory functions of the Customs Department. It is a legal
requirement under the Special Economic Zones Act, 2005, Special Economic Zones
Rules, 2006, as well as Exhibit R2(a) Office Memorandum No. 5/4/200-SEZ dated 26-
02-2009, issued by the Department of Commerce on administrative structure and
process of clearing cargo in ports, in Special Economic Zones.
22. Though the Commissioner of Customs, Willingdon Island, Cochin,
respondent No.2 has already made repeated requests to the Development
Commissioner, Vallarpadam Special Economic Zone (8th respondent), Cochin Port
Trust, represented by its Chairman, Cochin (1st respondent) and the 3rd respondent -
M/s. India Gateway Terminal Private Limited, represented by its Chief Executive
Officer, Kochi, for such a demarcation, the same is yet to be implemented.
23. With reference to the contentions in paragraphs 11, 12, 13, 15 and 16 of
the writ petition, the 2nd respondent has stated that cargo for export, examined,
stuffed into containers and sealed at warehouses/ container freight stations/port
etc., by the Customs/Central Excise authorities are permitted entry at the
International Container Transshipment Terminal, Vallarpadam, after verification of
the seals by the Customs officers. Further examination is done only in cases of
tampering of seals or on reasonable information about any illegal exports/smuggling.
As there were no examination facilities at the International Container Transshipment
WP(C). 32187/2011 : 12 :
Terminal, in such cases, the containers are moved to any of the Container Freight
Stations for detailed examination.
24. In case of export cargo self-stuffed/certified by the exporter, only
selected containers are examined in detail.
25. In case of import goods, only containers selected for examination and
those found with tampered seals or suspect containers are moved to Container
Freight Station or Port for examination. Other containers are released directly from
the International Container Transshipment Terminal after seal verification.
26. It is also stated by the 2nd respondent that installation of container
scanners at the entry/exit gates of International Container Transshipment Terminal
and at the Wharf gates of Cochin Port would be highly useful for detection of
contraband and mis-declaration of cargo. Commissioner of Customs - the 2 nd
respondent had already taken up the issue of installation of container scanners with
the Directorate of Logistics, New Delhi and requested the Chairman, Cochin Port
Trust - the 1st respondent, to provide the required space for installation of the
container scanners.
27. On this day, when the matter came up for hearing, Mr. Vipin P. Varghese,
learned counsel appearing for petitioner, submitted that the prayers sought for in
the writ petition have been addressed, except installation of GPS units in the
containers. Learned counsel also submitted that since substantially the requirements
WP(C). 32187/2011 : 13 :
are satisfied, petitioner is not pressing for reliefs sought for, on merits. We have
given due consideration to the pleadings and materials, produced on both sides.
28. We place on record the steps taken by the respondents, in addressing the
grievance raised, find justificial, and accepted on merits.
We are of the considered opinion that no directions as sought for, need to be
issued. The steps taken by the respondents are placed on record. Accordingly, writ
petition is disposed of.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
smv JUDGE
WP(C). 32187/2011 : 14 :
APPENDIX
PETITIONERS' EXHIBITS
Exhibit P1 P1 : The True Copy of the Instruction 1/2006-SEZ
dtd 01/03/2006 issued by Development
Commissioner, SEZ.
Exhibit P2 P2 : The True Copy of the Instruction 2/2007-SEZ
01/03/2007 issued by Development
Exhibit P3 The true copy of the news item reported in "T
HINDU" online newspaper.
Exhibit P4 The true copy of the news item reported in the
online newspaper dtd 28/10/2011.
Exhibit P5 The true copy of the news item reported in "IBN"
newspaper dtd 09/11/2011.
Exhibit P6 The True Copy of news item reported in "DECCAN
online newspaper dtd 05/11/2011.
Exhibit P7 The true copy of the Order dtd 19/03/2008 issued by
the Addl Respondent No.8/ Development
Commissioner, Vallarpadom Special Economic Zone.
RESPONDENTS' EXHIBITS
EXHIBIT R2(a) TRUE COPY OF THE O.M.NO.5/4/2007 SEZ
DT.26.02.2009.
