Kerala High Court
Joyalukkas India Limited vs Union Of India on 18 July, 2025
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W.A No.1978 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
WA NO. 1978 OF 2024
AGAINST THE JUDGMENT DATED 19.11.2024 IN WP(C)
NO.19068 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
JOYALUKKAS INDIA LIMITED,
DOOR NO.5/309-3, BISHOP ALAPATT ROAD, FATHIMA NAGAR,
MISSION QUARTERS, THRISSUR REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER., PIN - 680005.
BY ADVS.
SRI.P.A.MOHAMMED SHAH
SHRI.ABEE SHEJIRIK FASLA N.K
SHRI.CHELSON CHEMBARATHY
SHRI.RENOY VINCENT
SRI.SHAHIR SHOWKATH ALI
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK,
NEW DELHI-, PIN - 110001
2 DEPUTY DIRECTOR,
DIRECTORATE OF ENFORCEMENT, COCHIN ZONAL OFFICE, KANOOS
CASTLE, A.K. SESHADRI ROAD, ERNAKULAM - 682011
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3 ADJUDICATING AUTHORITY (PMLA),
ROOM NO. 25, 4TH FLOOR, JEEVAN DEEP BUILDING,
PARLIAMENT STREET, NEW DELHI - 110001
4 COMMISSIONER OF CUSTOMS (PREVENTIVE),
5TH FLOOR, CATHOLIC CENTRE, BROADWAY, ERNAKULAM, PIN -
682031
5 ASHWIN GOLD PVT LTD
M/S ASHWIN GOLD PVT LTD, 11/422, SANJAY NIWAS,
MULAMTHURUTHY P.O, ERNAKULAM-682 314 , REPRESENTED BY
ITS MANAGING DIRECTOR SANJAY SUBRAO NIKAM, AGED 41
YEARS, S/O SUBRAO NIKAM, R/O SANJAY NIWAS,
MULAMTHURUTHY P.O.ERNAKULAM- 682 314.
BY ADVS.
SHRI.T.C.KRISHNA, SCGC
SHRI.C.DINESH, CGC
SHRI.V.GIRISHKUMAR, SC, CENTRAL BOARD OF INDIRECT TAXES
AND CUSTOMS FOR R4
SHRI.ASHOK
SHRI.JAISHANKER V. NAIR, SC, FOR R2 & R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
15.07.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present writ appeal filed under Section 5 of the Kerala
High Court Act, 1958 assails the judgment dated 19.11.2024
passed in WP(C) No.19068 of 2024 whereby the learned Single
Judge had dismissed the writ petition as not maintainable.
2. The brief facts of the case are that the
appellant/petitioner is a public limited company engaged in the
business of jewellery manufacturing and selling. In the course of
its business, the appellant/petitioner had purchased 10kgs of gold
bars from the 5th respondent, a private limited company named
M/s.Ashwin Gold Pvt.Ltd which is functioning in accordance with
the provisions of the Special Economic Zones Act, 2005. While so,
a letter from the office of the 4th respondent was received stating
that the gold bars sold to the appellant/petitioner was part of the
gold illegally diverted by the 5th respondent from its unit in the
Special Economic Zone (SEZ) to the Domestic Tariff Area (DTA)
and since payment for the gold purchased is outstanding, an
amount of Rs.2,84,50,000/- should be deposited, being the
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sale-proceeds of the smuggled/diverted gold. This was followed
by another letter, directing the appellant/petitioner to furnish
bank guarantee for an amount of Rs.29,60,000/-. In compliance
of the directions, the appellant/petitioner executed an indemnity
bond for Rs.2,84,50,000/-, authorising the Customs Department
to recover the amount towards the alleged sale-proceeds of the
gold and also furnished bank guarantee for Rs.29,60,000/-. In the
ensuing proceedings the appellant/petitioner along with 14 others,
including M/s.Ashwin Gold Pvt.Ltd, were issued with notices by
the 4th respondent, requiring them to show cause as to why the
gold involved should not be confiscated. In spite of the
appellant/petitioner filing objections against the proposal, the 4th
respondent issued Ext.P6 confiscation order under Section 121 of
the Customs Act, 1962. Subsequently, a complaint was filed
before the Additional Chief Judicial Magistrate's Court (Economic
offences), Ernakulam against the Managing Director of the 5th
respondent and the proprietor of an establishment named
M/s.Kallarakkal Jewellers, alleging commission of the offence
punishable under Section 135(1)(i) of the Customs Act. As the
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offence under Section 135 of the Customs Act is a scheduled
offence in terms of Sections 2(1)(x) and 2(1)(y) of the Prevention
of Money Laundering Act, 2002 (PML Act, for short), an
Enforcement Case Information Report was recorded by the 2nd
respondent and investigation launched by the Enforcement
Directorate. During the course of that investigation, a
communication was served on the Chairman and Managing
Director of the petitioner company, directing him to make a fixed
deposit for Rs.2,84,50,000/-, being the amount equivalent to the
value of the 10kgs of gold purchased from the 5th respondent. In
due compliance of the direction, two fixed deposits having total
value of Rs.2,84,50,000/- were made. Thereupon, the fixed
deposits were provisionally attached as per Ext.P9, in purported
exercise of the power under Section 5(1) of the PML Act. Later,
Ext.P10 complaint was filed before the 3rd respondent Adjudicating
Authority and by Ext.P11 notice, the petitioner was called upon to
show cause why the provisional order of attachment should not be
confirmed. The writ petition was filed at that stage.
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3. Learned counsel for the appellant submitted that the
provisional attachment order, Ext.P9, is dated 27.03.2024.
Thereafter the Adjudicating Authority passed the final order on
30.09.2024, before that the writ petition was heard and reserved
for judgment on 24.09.2024. The judgment was delivered on
19.11.2024. Learned counsel submitted that the learned Single
Judge erred in rejecting the case of the appellant on the principles
of "doctrine of double jeopardy", which, admittedly, can be applied
only in the context of criminal/prosecution proceedings. In fact
the case of the appellant is that the sale proceeds under Section
121 of the Customs Act, 1962 and proceeds of crime under
Section 5(1) of the PML Act are one and the same. Being so, it is
a fundamental principle of law that a person cannot be punished
twice or a person cannot suffer "double whammy". Learned
Single Judge failed to consider the fundamental proposition that
Customs Act would prevail over the PML Act and thereby making
the proceedings initiated without jurisdiction. Therefore, the
judgment passed by the learned Single Judge is liable to be set
aside.
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4. Per contra, learned counsel for the respondents opposed
the prayer and submitted that the learned Single Judge has
rightly arrived at the conclusion that the writ petition itself is not
maintainable inasmuch as Section 26 of the PML Act provides for
appeal to the Appellate Tribunal, instead approached this Court in
the writ petition. Even otherwise the writ petition would not be
maintainable in view of the fact that Section 42 of the PML Act
provides for appeal to the High Court where appeal can be filed by
any person aggrieved by any decision or order of the Appellate
Tribunal. In such a situation, no relief can be granted to the
appellant at this stage. However, the appellant would be free to
avail the remedy as available in law. Therefore, the writ appeal
deserves to be dismissed.
5. Heard both sides.
6. Admittedly, final attachment order was passed on
30.09.2024 by the Adjudicating Authority. The writ petition was
preferred against the provisional attachment order Ext.P9 dated
27.03.2024. The final attachment order was not challenged in the
writ proceedings. Learned Single Judge held that the writ petition
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is not maintainable and dismissed the same. Admittedly, the
appellant was pursuing the remedy before a wrong forum.
Therefore, since the learned Single Judge has held that the writ
petition is not maintainable, liberty would be required to be
granted to the appellant to avail the remedy by filing an appeal
under Section 26 of the PML Act. In the circumstances, we deem
it appropriate to maintain the judgment passed by the learned
Single Judge. So far as limitation to file appeal is concerned, the
period spent in this High Court from 30.09.2024 till the decision of
the writ petition as well as the time taken for filing the writ appeal
and the decision thereof deserves to be condoned.
7. Section 29(2) of the Limitation Act, 1963 provides for
condonation of the period which has been spent in prosecuting the
litigation before the High Court. Accordingly, the appellant is
granted liberty to avail statutory remedy of appeal under Section
26 of the PML Act, within a period of 15 days from the date of
receipt of a certified copy of this judgment. If such an appeal is
preferred within the aforesaid period, the period spent by the
appellant in prosecuting the writ petition as well as the present
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writ appeal shall not be taken into account while considering the
aspect of delay. So far as other delays if any are concerned, the
same may be considered by the appellate authority in accordance
with law.
The interim order dated 07.12.2024 granting status quo
shall continue for a period of 15 days from the date of receipt of a
certified copy of this judgment.
With the aforesaid liberty, the writ appeal stands finally
disposed of. No order as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M
JUDGE
smp
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PETITIONER ANNEXURES
Annexure 1 A TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.3 DATED 30.09.2024
Annexure A2 THE TRUE COPY OF THE FINAL ORDER NOS.
20455-20464/2025 PASSED BY THE CUSTOMS,
EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
BANGALORE DATED 28.03.2025
