Madras High Court
Thanushika vs The Principal Commissioner Of Customs ... on 31 January, 2025
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
W.P.No.5005 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 30.10.2024
Pronounced on 31.01.2025
CORAM
THE HON'BLE Mr. JUSTICE KRISHNAN RAMASAMY
W.P.No.5005 of 2024
Thanushika
... Petitioner
Vs.
1.The Principal Commissioner of Customs (Chennai),
Represented by Seizing Agency AIU,
O/o. The Principal Commissioner of Customs,
New Custom House, Meenambakkam,
Chennai 600 027.
2.The Principal Commissioner of Customs (Chennai),
Representated by Seizing Officer S.Mythili,
O/o. The Principal Commissioner of Customs,
New Custom House, Meenambakkam,
Chennai 600 027.
... Respondents
Prayer:
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, to direct the respondents to release
the gold ornaments inappropriately seized by the respondents vide
1/53
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W.P.No.5005 of 2024
Seizure/Detention file Nos.OS No.1569/2023 AIU B, OS No.1570/2023
AIU B, OS.No.1571/2023 AIU B dated 30.12.2023.
For Petitioner : Mr.A.Simiyon Raja
For Respondents : Mr.M.Santhanaraman,
Senior Standing counsel
ORDER
This writ petition has been filed to direct the respondents to
release the gold ornaments inappropriately seized by the respondents
vide Seizure/Detention file Nos.OS No.1569/2023 AIU B, OS
No.1570/2023 AIU B, OS.No.1571/2023 AIU B dated 30.12.2023.
2. The learned counsel for the petitioner would submit that the
petitioner is a citizen of SriLanka and had come down to Chennai and
She got married to one Jeyakanth, who is also a Srilankan citizen and
their marriage was solemnized at the SRO, Madurandhagam,
Chengalpet District on 15.07.2023. Thereafter, the petitioner's husband
left for France, where he is living currently and the petitioner left for
SriLanka with her parents to await till she get spouse sponsor visa. She
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got her visa in the month of November 2023. Thereafter, once again, she
travelled to India and landed at Chennai International Airport on
30.12.2023 at 03.30 pm along with her mother-in-law and sister-in-law
with her children. As her husband had also come from France on
27.12.2023, to accompany her to France, they planned for pilgrimage
too, to visit the various temples in Tamil Nadu, as it is our custom and
tradition since she is newly married and yet to start her life in abroad
during our visit in Tamil Nadu.
3. Further, he would submit that the petitioner along with her in-
laws and 3 children, had landed at Chennai on 30.12.2023 at 03.30 pm
and cleared the immigration formalities. The details of them are as
follows:
S.No Name Age Relation to
petitioner
1 Thanushika 30 Petitioner
2 Arasi Inbamathi 60 Mother-in-law
3 Kirushalini 39 Sister-in-law
4 Abilin Reegan 8
5 Akshara Reegan 6 Children of Sister-
in-law
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4. While passing the customs, the customs officer/2nd respondent
herein had checked their belongings and questioned about her gold
bangles weighing about 45 grams and Thaalikodi weighing about 88
grams. When the enquiry was conducted, she replied that she had got
married and going to France after their planned pilgrimage in Tamil
Nadu and she has also showed the return ticket to France to the officials.
5. However, the customs officer did not accepted her statements
and started to treat the petitioner, her in-laws and the 3 children in an
arrogant manner and ordered the petitioner to remove her Thaalikodi and
hand over the same to the 2nd respondent. However, she refused and
begged the 2nd respondent not to remove her Thaali since it is a
sentimental ornament being a symbol and token of marriage. In spite of
her request, the 2nd respondent-S.Mythili along with her subordinates had
forced the petitioner and snatched her Mangalya Thalikodi from her
neck. Seeing the formidable behavior of the 2nd respondent, her in-laws
had also begged the officer not to do so. But they were man-handled and
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pushed on the floor. The 3 children started screaming and shivering with
fear and at one point of time, her mother-in-law had fainted and fell
down on the floor.
6. Without bothering about anything, the 2nd respondent forced the
petitioner and her in-laws to sign on some typed papers, in which it has
been mentioned that the ornaments seized from them are not sentimental
but smuggled things. However, the petitioner and her in-laws did not
agree for their unfair demand and keep begging them repeatedly.
Thereafter, they were not at all provided or permitted any food or even
water and they had been kept in a locked room. By 10.00 pm, the
customs officer told that their jewels would be returned when they go
back from India and with no other option, they agreed to sign the papers.
The 2nd respondent did not allowed them to read the paper even after
signing it. Thereafter, the petitioner had begged to allow them to exit, but
the duty officer told that the 2nd respondent, who handled this matter had
left for home and without her knowledge they could not be allowed to
exit.
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7. When the condition of the petitioner, her in-laws and the
children became deteriorated, the then duty customs officer allowed
them to leave the Airport on the next day at 03.30 am in the early
morning after the 12 hours of detention without mercy. However, in the
Mahazar, the said 2nd respondent has fraudulently mentioned that the
petitioner along with her family members were allowed to exit the
Airport at 08.30 pm on the very same day, which counts only 5 hours of
detention.
8. In spite of expressing the petitioner's genuineness and the
purpose of coming to India, the respondents had neglected and refused to
return their jewels. Since the petitioner has to live with her husband, if
the jewels are not returned to her, her life will be in distress as the jewels
are her thaali and shridanam, which are connected with the sentiments,
tradition and culture.
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9. Further, he would submit that the jewels, which are their
personal property, are not subject to any irregularities and the same is not
in violation of any law. The petitioner is also ready to undertake and
expressed her willingness to abide by any condition laid down by the
respondents. The details of the jewels are as follows:
S.No Name of the Age of Relation to Grams of Grams of
person the petitioner gold gold as
person detained recorded
from them by the
respondent
4 Abilin Reegan 8
Children of 24 (8 grams Nil
5 Akshara Reegan 6
Sister-in-law each)
6 Arush Reegan 4
Total 288
10. He would contend that though the respondents had referred the
Baggage Rules, 2016, in their counter, the provisions of the said
Baggage Rules will not apply in the present case. In this regard, he
referred the provisions of Section 79 of the Customs Act, 1962 and
submit that the Baggage Rules, 2016, is beyond the scope of said Section
79 of the Customs Act, 1962.
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11. Further, he would submit that in the present case, the
allegations of the petitioner has not been specifically denied by the
respondents in their counter. Normally, the averments in the affidavit,
which were not specifically denied, are deemed to be admitted by the
respondents. In such case, it is crystal clear that the Mahazar was
prepared by the respondents on their own and hence, they had forced the
petitioner to sign the Mahazar without even allowing them to go through
it. Based on the said Mahazar, the confiscation order has been passed by
the concerned Officers without analysing the real facts of the cooked up
case against the petitioner.
12. The counter filed by the respondents varies from the
confiscation order on the aspect of the manner, as to how the gold was
carried by the petitioner. Further, before passing the confiscation order,
no show cause notice has been provided and no opportunity of personal
hearing was given to the petitioner, which is purely violation of
principles of natural justice. Therefore, he would contend that the entire
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seizure and confiscation proceedings, are illegal and the same is liable to
be quashed.
13. Further, by referring Rule 3 of the Baggage Rules, 1962, he
would submit that only if any personal jeweleries were kept in baggage,
the Baggage Rule will apply. However, if it is carried on the person, i.e.,
if the jeweleries were worn by the passenger, in such case, the Baggage
Rule is beyond the scope of the provisions of Section 79 of the Customs
Act, 1962.
14. Per contra, the learned Senior Standing counsel appearing for
the respondents would submit that the petitioner herein was intercepted
by the Officers of the 2nd respondent on 30.12.2023. Upon enquiry, it was
found that she was possessing gold jewellery, which is non-bonafide
baggage for a foreign national and personal search was conducted.
15. During the personal search, she was found wearing two gold
bangles and three gold chains of 22K purity, collectively weighing 166
grams. The said jeweleries were handed over by the petitioner for
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examination and quantification, whereby it was examined by a
Government-approved Approver. Subsequently, the said jewellery being
a non-bonafide baggage and the petitioner being a foreign national, was
ineligible to bring gold jewellery into India either in her person or in her
baggage, the same was seized under Section 110 of the Customs Act,
1962.
16. In a similar manner seizures of gold jewellery totally weighing
78 grams was effected from the possession of the petitioner's mother-in-
law and gold jewellery totally weighing about 44 grams from the
possession of petitioner's sister-in-law under separate Mahazar
proceedings conducted on 30.12.2023. All the Mahazar proceedings
were conducted in a peaceful manner without causing any inconvenience
to the petitioner herein and by following due course of law. The
sentiments of the petitioner herein were not hurt and the petitioner was
explained the provisions of the Baggage Rules, 2016 as amended.
Thereafter, the petitioner was made to understand that being a foreign
national she was ineligible to carry gold either in her person or in her
baggage and the same are liable for confiscation.
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17. During the personal search, the petitioners were politely
requested to remove their jewellery and hand it over to the customs
officer/2nd respondent. These proceedings were conducted with utmost
respect and due regards to the sentiments of the petitioner herein and her
family/relative, ensuring no harm was caused to any individual and the
entire proceedings were conducted smoothly in a cordial atmosphere and
also the petitioner along with her relatives were offered food, which they
declined to have.
18. Further, he referred the Baggage Rule since the baggage
carried by the petitioner is non-bonafide and she is not permitted to carry
the gold either in person or in baggage as per the Baggage Rules, 2016,
the proceedings were initiated against the petitioner and when they tried
to pass through green channel with an intention to smuggle, they were
stopped and further actions were taken. Under these circumstances, the
petitioner has to prove before the Adjudicating Authority as to how her
jewels are not liable for confiscation, which requires appreciation of
evidence especially as to why the petitioner did not declare the jewels
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with the Authorities and as admitted by her in the statement recorded
under Section 108 of the Customs Act, 1962, if she brought it for
monetary consideration.
19. Further, he had referred the judgment of the Hon'ble Division
Bench of this Court rendered in CMA.No.1716 of 2020 [The Principal
Commissioner or Customs vs. Ahamed Gani Natchiar] dated 01.09.2022,
wherein it was held that the Baggage includes the “personal effects” and
requests this Court to dismiss the present petition.
20. However, the learned counsel for the petitioner would submit
that in the aforesaid order, the Division Bench has categorically
mentioned that the definition of “Baggage” under the Customs Act, 1962
and the Baggage Rules would appear to suggest that the definition of
“Baggage” for the purpose of Baggage Rules, 2016, is wider than the
definition of “Baggage” under Section 2(3) of the Customs Act, 1962.
Though the said Rule has been made beyond the scope of the Statute, the
Court has no occasion to deal with the aspect of the scope of the Rule
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with regard to the inclusion of the word “carried on the person” in the
Baggage Rules, 2016. Therefore, he would submit that when a person
worn the jewelery, it would not be considered as baggage, thus, the
Baggage Rule will not apply since the same is beyond the scope of the
Act. Hence, he would submit that the detaining of jewellery under the
said Rule is contrary to the provisions of the Act and requests this Court
to release the gold, which were seized by the 2nd respondent.
21. I have given conscious consideration to the submissions made
by the learned counsel appearing for the petitioner and the learned
Senior Standing counsel appearing for the respondents and also perused
the materials available on record.
22. In the case on hand, the petitioner is a citizen of SriLanka, who
travelled to Chennai on 30.12.2023 at 3.30 pm. When the search was
conducted, it was found by the respondents that the petitioner and her
family members have wearing jewels, which exceeds the limit prescribed
in the Baggage Rules, 2016. The details of the jewels are as follows:
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S.No Name of the Age of Relation to Grams of Grams of
person the petitioner gold gold as
person detained recorded
from the by the
petitioner respondent
4 Abilin Reegan 8
Children of 24 (8 grams Nil
5 Akshara Reegan 6
Sister-in-law each)
6 Arush Reegan 4
23. At the time of search, the respondents had seized the
“thaalikodi” of the petitioner without even considering its sentiments.
According to the petitioner, it was forcefully removed. The said
“thaalikodi” is about 11 soverigns i.e., 88 grams. As per our customs,
normally people used to wear “thaalikodi” up to 16 soverign, in such
case, it would be normal for any middle class family to wear “thaalikodi”
weighing around 11 sovereigns.
24. It was also found by the respondents that the petitioner was
wearing gold bangles weighing 45 grams. As per our customs, it is
normal for a newly married person to wear the aforesaid quantity of
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gold. When the officers are conducting search, they have to respect the
customs of every religion of this Country.
24.1 In such case, it is very unfair on the part of the 2 nd respondent
to remove the “thaalikodi” from the petitioner, who is yet to start her
marriage life with her husband at France in the last week of January,
2024.
24.2 Without understanding the importance of “thaalikodi”
(mangalsutra), the 2nd respondent had asked the petitioner to remove the
same and since she refused to remove it, the Officials of the 2nd
respondent had snatched it from her neck. The act of the 2nd respondent
amounts to annihilate the customs of Hindu religion and the culture of
this Country. At any cost, the said act of the 2nd respondent is intolerable.
Thus, this Court feels that the importance of “thaalikodi” (mangalsutra)
in the Hindu Customs requires to be highlighted hereunder:
a) The “thaalikodi” holds deep cultural and traditional
significance in Indian society. Rooted in the customs of Hindu
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marriage, it symbolizes the marital bond between a husband
and wife and represents fidelity, prosperity, and well-being.
b) The “thaalikodi” is a sacred thread tied around the
bride's neck during the marriage ceremony. It signifies
auspiciousness and the sacred bond of marriage. The
“thaalikodi” is considered as a visual and spiritual
representation of the marital vows and the lifelong commitment
between the couple.
c) For every women, the “thaalikodi” is not merely a
piece of jewelry but an emotional and spiritual emblem of their
marital bond. It represents love, trust, and mutual respect
between spouses. The act of tying the “thaalikodi” during the
wedding ceremony is often accompanied by prayers and
blessings, making it a profoundly emotional moment for the
couple and their families.
d) Religious texts and practices highlight the “thaalikodi”
as an integral part of the solah shringar (sixteen adornments) of
a married woman, reinforcing its role as a symbol of
auspiciousness and spiritual connection.
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e) The amount of gold used in a “thaalikodi” varies
significantly based on cultural practices, personal preferences,
and regional traditions. In South India, the gold content in the
“thaalikodi” often ranges from 4 to 128 grams or more. The size
and weight depend on the family’s traditions and financial
capacity.
24.3 In the present case, the 2nd respondent, being well aware of
the sentiments of “thaalikodi”, had asked the petitioner to remove the
same. In this case, the petitioner worn “thaalikodi” weighing 88 grams,
which is a reasonable weight that everyone wear. Further, it appears that
the name of the petitioner's husband was inscribed in the “thaali”.
However, the 2nd respondent was unable to find out the difference
between the reasonable weight and suspicious weight. Even if there is
any suspicion, the 2nd respondent should have asked the petitioner to
show the “Thaalikodi”, instead of removing it. Thus, the act of the 2nd
respondent makes it clear that there is an ulterior motive to distract the
attention of other officials for the benefit of someone else. The said
behaviour of the 2nd respondent is unbecoming as an officer.
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24.4 Wearing “thaalikodi” is culture of this country and asking a
passenger to remove it, or forcefully snatching it from them, would
certainly amount to annihilate the culture and at any cost, such act
cannot be tolerated. Therefore, such irresponsible and rude behaviour of
the 2nd respondent is clearly unbecoming as an officer and the same
requires appropriate enquiry and action.
25. Further, in the present case, though they have stated that the
proceedings were conducted in the respectful manner, there is no specific
denial from the respondents for the averments made by the petitioner in
their affidavit. It is a well settled law that when the averments in the
petition were not denied specifically, it would amount to deemed to be
admitted on the part of the respondent. In the present case, the following
averments were not denied specifically by the respondent in his counter
dated 28.03.2024:
a) When the Customs officers checked the
petitioner's belongings, she was wearing thaalikodi about
88 grams and gold bangles about 45 grams, she said that
she just got married and came down to India for pilgrimage
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in Tamil nadu and return back in the end of January 2024.
however, the respondent behave in arrogant manne in front
of the petitioner's in-laws and three children. The 2nd
respondent/Mythili ordered to remove the thaalikodi and
hand over the same to her;
b) The petitioner refused and begged the officials not
to remove my “Thaali” since it is a sentimental and
considered as sacred ornament being a symbol and token of
marriage.
c) The custom officials along with their subordinates
forced 2nd petitioner and snatched her “Mangalya Thali
kodi” from her neck. The petitioner's in-laws also begged
the officer not to do so, but they were man-handled and
pushed on the floor.
d) The 3 children started screaming and shivering
with fear and myself at one point of time fainted and fell
down on the floor and a doctor from Airport Authority
treated the mother-in-law of the petitioner and advised the
officials to immediately take me to Hospital.
e) However, the Officials did not bother, but forced
the petitioner and her in-laws to sign on some typed papers,
in which it had been mentioned that the ornaments seized
from us are not sentimental, but smuggled things.
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f) The said customs officer told that our jewels would
be returned when we go back from India, having no other
way, but listening the said officer, they agreed to sign the
papers, moreover the 2nd respondent not even allowed us to
read the paper.
g) Seeing the conditions of the children, the
petitioner begged, to allow us to exit, but the duty officer
told that the officials who handled this matter had left to
home and without her knowledge, they could not be
allowed to exit.
h) The then duty customs officer only allowed the
petitioner and her in-laws and children to leave the Airport
on the next day at 03.30 am. In the early morning, after 12
hours detention without mercy.
i) In the Mahazar, the said officials has fraudulently
mentioned that the petitioner and her in-laws were allowed
to exit the Airport at 08.30 pm on the very same day itself.
j) The petitioner had expressed that she has to live
with her husband and if the jewels are not returned to her,
her life will be in distress till the end of her life as the
jewels are her “thaali and shridhanam”, which are
connected with the sentiment, tradition and culture.
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26. All the above averments, which are made against the
respondent, have not been denied by the respondents in their counter
dated 28.03.2024 except general and bald denial of the averments in the
writ affidavit. There was no specific denial to the above averments made
against the respondents. It is a settled law that if the allegations raised
against the respondents have not been specifically denied by them in
their counter, it will be deemed to be admitted.
27. The term “Counter Affidavit” by its nomenclature describes
that it is a counter to the affidavit filed in support of the writ petition. It
denies the averments contained in the affidavit and at times there may be
concessions in the counter affidavit too. When specific allegations are
raised in the affidavit, they have to be specifically denied or refuted in
the counter affidavit. Mere bald denial or the catch phrase “All
allegations are denied in entirety except those specifically admitted
herein”/ “At the outset deny all the allegations and averments contained
in the affidavits filed in support of the above writ petition save those that
are specifically admitted hereunder”, would not absolve the deponent of
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the counter affidavit. When an affidavit contains a positive averment of
facts or other details, the counter affidavit should explain as to why such
a fact or detail pleaded in the affidavit ought not to be accepted.
28. It is apposite to point out that the Writ Rules, 2021 were made
by the High Court of Madras which was published in the Gazette on
08.09.2021. Rule 6 of the Writ Rules deals with Affidavits. Rule 6 states
that:
“6. Affidavits in support of Petitions
(1) Every Petition shall be supported by an
affidavit.
(2) The affidavit shall bear the cause title of the
Petition and set forth
(a) facts leading to the filing of the
Petition;
(b) facts giving jurisdiction to the High
Court to entertain the Petition;
(c) the grounds, in case of a Writ
Petition; and
(d) the interim relief, final relief.
(3) The interim relief and final relief, as far as
possible, shall be in the penultimate and the last
paragraphs respectively of the common affidavit.
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(4) The affidavit shall be drawn up in the first
person and be divided into paragraphs numbered
consecutively.
(5) The deponent of an affidavit shall be identified
clearly with full name, parent’s/spouse’s name, age,
profession or trade and the official or the residential
address.
(6) The affidavit shall clearly mention whether the
statements made therein are based on personal
knowledge, information or belief. Where a statement is
based on oral information, the affidavit shall disclose the
source of such information and where the information is
based on records, the affidavit shall give sufficient
particulars of such records.”
29. Rule 24 of the Writ Rules deal with Counter Affidavits and the
same reads as follows:
“24. Counter affidavit
(1) Provisions of these Rules applicable to
affidavits shall apply mutatis mutandis to counter
affidavits, reply affidavits and other affidavits.
(2) Any respondent who intends to file a counter
affidavit, shall, unless otherwise ordered, file it within
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eight weeks from the date of service on him of the notice
or rule nisi provided the Court may extend the time or
condone the delay for sufficient cause.
(3) A counter affidavit and the documents in
support of a counter affidavit shall be filed together as a
paper book with consecutively numbered pages by each
Respondent.
(4) Where a party files affidavits or documents at
diff erent stages or times, the pages of such affidavits or
documents shall be numbered in continuation of the
paper book, if any, previously filed by such party.”
30. A mere reading of Rule 24(1) would make it clear that the rules
applicable to affidavits as mentioned in Rule 6 shall apply mutatis
mutandis to counter affidavits, reply affidavits and other affidavits.
Therefore, Rule 6(2) mandates that the affidavit should set forth
(a) facts leading to the filing of the Petition;
(b) facts giving jurisdiction to the High Court to
entertain the Petition;
(c) the grounds, in case of a Writ Petition; and
(d) the interim relief, final relief, it is obligatory on
part of the deponent of the counter affidavit to specifically
deny the averments raised.
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31. When several allegations, against the 2nd respondent/Mythili
and her subordinates, have been raised in the affidavit of the petition and
the counter affidavit did not contain anything to specifically deny
allegation/averments, which were made against the respondents except
the general and bald denial, then it leads to the conclusion that the
respondent or the deponent has not successfully denied the allegation.
What applies to a deponent of an affidavit as per the rules applies to a
deponent of the counter affidavit too.
32. In terms of Section 58 of the Evidence Act, 1872, if there is no
specific denial of averments or allegations raised against any party, the
same shall be considered as deemed to be admitted. Further, in the case
of Chanchal Kumar Patra vs. The State of West Bengal and others,
(W.P.No.19779 of 2014), vide order dated 20.09.2016, the Hon'ble
Calcutta High Court has held as follows:
32. ....... Apart from justice not having been seen to
be done, and there being a real danger of bias affecting
the fairness of the selection process, the versions of Abdul
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and Binoy in their respective counter affidavits do not at
all inspire confidence. Evasive denials are no denials and
the allegations levelled against Abdul and Binoy must be
deemed to have been accepted by them.”
33. From a reading of above, it is clear that since the respondents
have not denied any of the averments raised by the petitioner, thus, no
doubt, it is proved that the entire proceedings were conducted in
disrespectful manner and the 2nd respondent-Officer/S.Mythilli and her
associates have removed the “thaalikodi” from the neck of the petitioner,
when she refused to remove the same. Further, the Mahazar was
prepared with false averments as if the goods were smuggled and got in
the sleeves of the petitioner, which is contrary to the above admitted
facts.
34. Further, the counter filed by the respondents varies from the
confiscation order on the aspect of the manner, as to how the jewellery
was carried by the petitioner. In the confiscation proceedings, it has
been recorded as follows:
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i) At paragraph No.1 of the confiscation order
dated 24.04.2024, it has been stated that “upon search
of her person, 2 yellow coloured metal bangles and 3
yellow coloured metal chains were found worn on her
hand concealed in her full sleeves also found worn.”
ii) At paragraph No.3 of the confiscation order, it
has been stated that “during the search of her baggage,
nothing was found. Thereafter, upon search of her
person, 3 nos of yellow coloured metal chains and 2 nos
of yellow colour metal bangles were found from her
sleeves of shirt and the same was recovered.”
iii) At paragraph No.11 of the confiscation order,
it has been stated that “I find that the passenger had
not declared the possession of gold in spite of repeated
enquiry and only after search of her person, 3 nos. of
gold chains and 2 nos. of gold bangles was recovered
from under her clothes.”
35. The above 3 statements, which were recorded in the
confiscation order, shows three different version, i.e., in the 1st place, it
has been stated that the jewels were worn on her concealed in her full
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sleeves, in the 2nd place, it has been stated that metal bangles were found
from her sleeves and in the 3rd place, it has been stated that the jewellery
were recovered from under her sleeves. However, contrary to the above
statements, at paragraph No.3(ii) of the counter, it has been stated as
follows:
“3) ii. …......During the personal search, she was
found wearing two gold bangles and three gold chains of
22K purity, collectively weighing 166 grams.”
36. The real fact is that 2 gold bangles and one Thaalikodi were
worn by the petitioner at the time of arrival. But the same not been stated
in the confiscation notice, which was issued based on the falsely created
Mahazar, wherein it was stated as if the jewels were concealed under the
sleeves and brought illegally by the petitioner.
37. Therefore, the truth has come out in the form of counter,
whereas falsification of the records, such as preparation of the Mahazar,
stands confirmed by virtue of reflecting the false informations in the
confiscation orders. Based on their own statement, they had clearly
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proved that the Mahazar was prepared with false information, in order
to, fix the petitioner into the case for ulterior motive for the reasons
better known to them. In such view of the matter, this Court suspects that
the 2nd respondent/Mythilli and her subordinates have orchestrated this
entire episode in order to divert the attention of the Officials for the
benefit of somebody else and hence, the Authorities should examine and
take appropriate actions against the erring officials on the said aspect.
38. Therefore, as stated in the averments of the petitioner, the case
was foisted against the petitioner as if they have smuggled and they were
forced to sign the Mahazar even without reading it. Since those
averments were not specifically denied by the respondents, the same
would amount to deemed to be admitted by them.
39. Further, it appears that the petitioner has also given a letter
dated 22.01.2024 to the Joint Commissioner of Customs, narrating the
entire facts and requested for release of goods, however, the same was
not considered. In the said letter, it has clearly been stated that in the
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“Thaalikodi” (mangalsutra), the name of the petitioner's husband
(Jayakanth) has been inscribed.
40. Apart from the illegalities, such as, detaining the petitioner and
her relatives, seizure of gold from them and preparation of Mahazar with
false information, it is also necessary to deal with the aspect of
jurisdiction of the Officers to frame charges against the petitioners based
on the Baggage Rules, 2016. In this regard, an order of this Court
rendered in CMA.No.1716 of 2020 has been referred by the learned
Senior Standing counsel for the respondent. In the said judgment, the
Hon'ble Division Bench of this Court has framed an issue as to whether
the jewelery worn on the person would constitute “Baggage”.
41 The Division Bench had answered the issue by plain reading of
the Baggage Rules, 2016 and arrived at a conclusion that in terms of
Rule 3 of the Baggage Rules, 2016, the jewelery worn by the passenger,
who had arrived from abroad would be considered as “Baggage”.
However, in the same judgment, the Hon'ble Division Bench has held
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that the definition of “Baggage” under the Customs Act, 1962, and the
Baggage Rules would appear to suggest that the definition of “Baggage”
for the purpose of Baggage Rules, 2016 is wider than the definition of
“Baggage” under Section 2(3) of the Customs Act, 1962. The relevant
portion of the judgment is as follows:
“A reading of the definition of "Baggage" under the
Customs Act, 1962 and the Baggage Rules would appear
to suggest that the definition of "Baggage" for the purpose
of Baggage Rules, 2016 is wider than the definition of
"Baggage" under Section 2 (3) of the Customs Act, 1962.”
42. Though the Hon'ble Division Bench has arrived at the above
conclusion that the definition of “baggage” under the Baggage Rules,
2016 is wider than the definition of “baggage” under the Customs Act,
1962, it had no occasion to deal with the aspect as to whether the
Baggage Rules, 2016, can override the Statute (Section 79 of the
Customs Act, 1962), since no issue was framed and no arguments were
made on that aspect.
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43. In the present case, the learned counsel appearing for the
petitioner has made arguments on the aspect that Rule 3 of Baggage
Rules, 2016, is beyond the scope of the provisions of Section 79 of the
Customs Act, 1962 (Act). Therefore, this Court is bound to answer with
regard to the aspect as to whether the Rule is beyond the scope of the
Statute (Section 79 of the Act), in which case, at what extent, the Rules
can be followed has to be determined by this Court in the present case.
44 At this juncture, it would be apposite to extract Section 79 of
the Customs Act, 1962, which reads as follows:
79. Bona fide baggage exempted from duty.
(1)The proper officer may, subject to any rules made
under sub-section (2), pass free of duty-
(a)any article in the baggage of a
passenger or a member of the crew in respect
of which the said officer is satisfied that it has
been in his use for such minimum period as
may be specified in the rules;
(b)any article in the baggage of a
passenger in respect of which the said officer
is satisfied that it is for the use of the
passenger or his family or is a bona fide gift or
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souvenir; provided that the value of each such
article and the total value of all such articles
does not exceed such limits as may be specified
in the rules.
(2)The Central Government may make rules for the
purpose of carrying out the provisions of this section and,
in particular, such rules may specify-
(a)the minimum period for which any
article has been used by a passenger or a
member of the crew for the purpose of clause
(a) of sub-section (1);
(b)the maximum value of any
individual article and the maximum total
value of all the articles which may be passed
free of duty under clause (b) of sub-section
(1);
(c)the conditions (to be fulfilled before
or after clearance) subject to which any
baggage may be passed free of duty.
(3)Different rules may be made under sub-section
(2) for different classes of persons.
45. A reading of the above provisions would show that the proper
officer may subject to any Rules made under Sub-Section (2), if any
article in the baggage of a passenger or a member of the crew in respect
of which the said officer is satisfied that it has been in his use for such
minimum period as may be specified in the rules.
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46. Thus, it states that for any article in the baggage of a passenger
in respect of which the said officer is satisfied that it is for the use of the
passenger or his family or is a bona fide gift or souvenir; the total value
of all such articles does not exceed such limits as may be specified in the
Rules. Hence, Section 79 talks about “anything in the baggage”. For
the purpose of carrying out the provisions of this Section, the Section
79(2) enables the Central Government to make the Rules as follows:
i) The minimum period for which any article has
been used by a passenger or a member of the crew for the
purpose of clause (a) of sub-section (1);
ii) the maximum value of any individual article and
the maximum total value of all the articles which may be
passed free of duty under clause (b) of sub-section (1);
iii) the conditions (to be fulfilled before or after
clearance) subject to which any baggage may be passed
free of duty.
47. From the reading of the above, it is clear that the Act enables
the Central Government to make the Rules only with regard to the
baggage. At this juncture, it would be apposite to extract the definition of
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baggage under the Act, which reads as follows:
Section 2(3) of the Customs Act:
(3) “baggage” includes unaccompanied baggage
but does not include motor vehicles;
48. A reading of the above definition would show that baggage
includes unaccompanied baggage and does not include motor vehicles.
At this juncture, it would also be apposite to extract Rule 3 of the
Baggage Rules, which reads as follows:
"3. Passenger arriving from countries other than
Nepal, Bhutan or Myanmar.-An Indian resident or a
foreigner residing in India or a tourist of Indian origin,
not being an infant arriving from any country other than
Nepal, Bhutan or Myanmar, shall be allowed clearance
free of duty articles in his bona fide Baggage, that is to
say, -
(a) used personal effects and travel souvenirs; and
(b) articles other than those mentioned in
Annexure-I, upto the value of fifty thousand rupees if
these are carried on the person or in the accompanied
Baggage of the passenger:
Provided that a tourist of foreign origin, not being
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an infant, shall be allowed clearance free of duty articles
in his bona fide Baggage, that is to say, (a) used personal
effects and travel souvenirs; and (b) articles other than
those mentioned in Annexure- I, upto the value of fifteen
thousand rupees if these are carried on the person or in
the accompanied Baggage of the passenger:
Provided further that where the passenger is an
infant, only used personal effects shall be allowed duty
free. Explanation.- The free allowance of a passenger
under this rule shall not be allowed to pool with the free
allowance of any other passenger.
ii) Definition of Baggage under the Customs Act,
1962:
“(2)(3) - "Baggage" includes unaccompanied
Baggage but does not include motor vehicles; "
49. As discussed by the Hon'ble Division Bench in the CMA
referred supra, a reading of the above definition of “baggage” under
Customs Act, 1962, and Baggage Rules, 2016, makes it clear that the
definition of “baggage” under the Baggage Rules is wider than the
definition of “baggage” under the Customs Act. Further, in the Rule it
has been stated as follows:
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"3. Passenger arriving from countries other than
Nepal, Bhutan or Myanmar.-An Indian resident or a
foreigner residing in India or a tourist of Indian origin,
not being an infant arriving from any country other than
Nepal, Bhutan or Myanmar, shall be allowed clearance
free of duty articles in his bona fide Baggage, that is to
say, -
(a) used personal effects and travel souvenirs; and
(b) articles other than those mentioned in
Annexure-I, upto the value of fifty thousand rupees if
these are carried on the person or in the accompanied
Baggage of the passenger:
50. From a perusal of above provision, it is clear that the Clause
(b) includes the articles other than those mentioned in Annexure-I, upto
the value of fifty thousand rupees if these are 'carried on the person' or
in the accompanied Baggage of the passenger
51. The Customs Act, 1962, enables the Central Government to
make Rules to the extent of the articles carried in the baggage of a
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passenger and not for the articles, which were carried on the person and
hence, the inclusion of the word “carried on the person” is beyond the
scope of the provisions of Section 79 of the Customs Act.
52. When the provision of the Rule is beyond the scope of the
provisions of the Act, only the provision of the Act will prevail over the
Rules. Thus, the word “carried on the person up to Rs.50,000/-” is
clearly beyond the scope of the Act and it cannot be given any effect
since it is contrary to the provisions of the Statute. Thus, it has to be
construed only for the articles, which have not been mentioned in
Annexure-1 and carried in the accompanied baggage of a passenger. In
such case, the application of Baggage Rules, 2016, would not arise.
Thus, the jewelery worn by the passenger will not fall within the
provisions of the Baggage Rules, 2016.
53. On the other hand, if anyone worn any unreasonable amount of
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gold or jeweleries, they shall be brought under search, however, in the
present case, it is not so. In India, as per our customs, it is normal to
wear 10 nos. of bangles for a marriage function. In such case, it is for the
Officers to apply their mind while detaining the gold. If 10 nos. of chains
were worn by a person, then it would be suspectable and if anything is
hide, then the provisions of Section 101 and 102 of the Customs Act,
1962, would apply since it clearly amounts to secreting the gold in their
body under the pretext of worn in the body.
54. Considering the above aspect only, while enacting the
provisions of the Customs Act, the Parliament has consciously excluded
the jewels worn by the passengers. If there is any intention to put all the
passengers into hassle, disrespecting their proprietorial rights, dignity,
forgoing the customs, against the fundamental rights, let the Parliament
take a decision and amend the provisions of the Act. Till then, the
Officers have to apply their minds with regard to detaining the passenger
and the gold worn by them as the same would not fall within the purview
of the Baggage Rules, 2016.
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55. The Doctrine of ultra vires states that the Rule making body
must function within the purview of the Rule making authority conferred
on it by the parent Act. As the body of making rules or regulations, there
is no inherent power of its own to make rules, but such power arise only
from the Statute and hence, it must necessarily function within the
purview of the Statute.
56. In the present case, the Rule making body had made the
Baggage Rules as if they are having inherent power of its own to make
rules beyond the scope of the Statutes, and they have incorporated the
word “carried on the person” as referred above.
57. The ultra vires may arise in several ways such as :-
a) there may be a simple excess of power over what is
conferred by the parent Act;
b) the delegated legislation may be inconsistent with
the provisions of the parent Act;
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c) there may be non-complaince with the procedural
requirement as laid down in the parent Act.
In all the above situation, it is the function of the Court is to keep all the
Authorities within the confines of the law by supplying the doctrine of
ultra vires.
58. In the present case, admittedly, the Rule making Authorities
made the Rules by traveling beyond the scope of the Act, which would
amount to ultra vires. In such case, the Statute would prevails over the
Rules. When such being the case, the Statute referred only with regard to
the baggage and therefore, the Rule has to be confined and read only
with regard to the baggage and not with regard to the articles “carried on
the person”.
59. With regard to the above aspect, in the judgment of the Hon'ble
Apex Court rendered in Naresh Chandra Agarwal vs. Institute of
Chartered Accountants of India and others reported in 2024 SCC
OnLine SC 114, it has been held as follows:
“35. From reference to the precedents discussed
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above and taking an overall view of the instant matter, we
proceed to distil and summarise the following legal
principles that may be relevant in adjudicating cases where
subordinate legislation are challenged on the ground of
being ‘ultra vires’ the parent Act:
(a) The doctrine of ultra vires envisages
that a Rule making body must function within the
purview of the Rule making authority, conferred
on it by the parent Act. As the body making Rules
or Regulations has no inherent power of its own
to make rules, but derives such power only from
the statute, it must necessarily function within
the purview of the statute. Delegated legislation
should not travel beyond the purview of the
parent Act.
(b) Ultra vires may arise in several ways;
there may be simple excess of power over what is
conferred by the parent Act; delegated
legislation may be inconsistent with the
provisions of the parent Act; there may be non-
compliance with the procedural requirement as
laid down in the parent Act. It is the function of
the courts to keep all authorities within the
confines of the law by supplying the doctrine of
ultra vires.”
60. Further, in the judgment of the Hon'ble Apex Court rendered in
State of Jammu and Kashmir vs. Lakhwinder Kumar and others
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reported in (2013) 6 SCC 333, it has been held as follows:
20. We must answer here an ancillary submission.
It is pointed out that the Rules made to give effect to the
provisions of the Act have to be consistent with it and if a
rule goes beyond what the Act contemplates or is in
conflict thereof, the rule must yield to the Act. It is
emphasised that Section 80 of the Act confers discretion
on the officer within whose command the accused person
is serving the choice between criminal court and the
Security Force Court without any rider, whereas Rule 41
of the Rules specifies grounds for exercise of discretion.
Accordingly, it is submitted that this Rule must yield to
Section 80 of the Act. We do not find any substance in
this submission.
61. In the judgment of the Hon'ble Apex Court rendered in State
of Tamil Nadu and Another vs. P.Krishnamurthy and others reported in
(2006) 4 SCC 517, it has been held as follows:
16. The court considering the validity of a sub-
ordinate Legislation, will have to consider the nature,
object and scheme of the enabling Act, and also the area
over which power has been delegated under the Act and
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then decide whether the subordinate Legislation conforms
to the parent Statute. Where a Rule is directly inconsistent
with a mandatory provision of the Statute, then, of course,
the task of the court is simple and easy. But where the
contention is that the inconsistency or non- conformity of
the Rule is not with reference to any specific provision of
the enabling Act, but with the object and scheme of
the Parent Act, the court should proceed with caution
before declaring invalidity.
17. In Indian Express Newspapers (Bombay) Pvt.
Ltd. v. Union of India [1985 (1) SCC 641], this Court
referred to several grounds on which a subordinate
legislation can be challenged as follows:
"75. A piece of subordinate legislation does not carry
the same degree of immunity which is enjoyed by a statute
passed by a competent legislature. Subordinate legislation
may be questioned on any of the grounds on which plenary
legislation is questioned. In addition it may also be
questioned on the ground that it does not conform to the
statute under which it is made. It may further be questioned
on the ground that it is contrary to some other statute. That
is because subordinate legislation must yield to plenary
legislation. It may also be questioned on the ground that it
is unreasonable, unreasonable not in the sense of not being
reasonable, but in the sense that it is manifestly arbitrary."
[Emphasis supplied]
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18. In Supreme Court Employees Welfare Association
vs. Union of India [1989 (4) SCC 187], this Court held that
the validity of a sub-ordinate legislation is open to question
if it is ultra vires the Constitution or the governing Act or
repugnant to the general principles of the laws of the land
or is so arbitrary or unreasonable that no fair-minded
authority could ever have made it. It was further held that
Rules are liable to be declared invalid if they are manifestly
unjust or oppressive or outrageous or directed to be
unauthorized and/or violative of general principles of law
of the land or so vague that it cannot be predicted with
certainty as to what it prohibited or so unreasonable that
they cannot be attributed to the power delegated or
otherwise discloses bad faith.
19. In Shri Sitaram Sugar Co. Ltd. v. Union of
India [1990 (3) SCC 223], a Constitution Bench of this
Court reiterated :
"Power delegated by statute is limited by its
terms and subordinate to its objects. The
delegate must act in good faith, reasonably,
intra vires the power granted, and on relevant
consideration of material facts. All his
decisions, whether characterized as legislative
or administrative or quasi-judicial, must be in
harmony with the Constitution and other laws
of the land. They must be "reasonably related
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to the purposes of the enabling legislation".
See Leila Mourning v. Family Publications
Service [411 US 356]. If they are manifestly
unjust or oppressive or outrageous or directed
to an unauthorized end or do not tend in some
degree to the accomplishment of the objects of
delegation, court might well say, "Parliament
never intended to give authority to make such
rules; they are unreasonable and ultra vires":
per Lord Russel of Killowen, C.J. in Kruse v.
Johnson (1898) 2 QB 91."
20. In St. Johns Teachers Training Institute vs.
Regional Director, NCTE [2003 (3) SCC 321], this Court
explained the scope and purpose of delegated legislation
thus :
"A regulation is a rule or order prescribed by a
superior for the management of some business and implies
a rule for general course of action. Rules and regulations
are all comprised in delegated legislations. The power to
make subordinate legislation is derived from the enabling
Act and it is fundamental that the delegate on whom such a
power is conferred has to act within the limits of authority
conferred by the Act. Rules cannot be made to supplant the
provisions of the enabling Act but to supplement it. What is
permitted is the delegation of ancillary or subordinate
legislative functions, or, what is fictionally called, a power
to fill up details. The legislature may, after laying down the
legislative policy confer discretion on an administrative
agency as to the execution of the policy and leave it to the
agency to work out the details within the framework of
policy. The need for delegated legislation is that they are
framed with care and minuteness when the statutory
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authority making the rule, after coming into force of the
Act, is in a better position to adapt the Act to special
circumstances. Delegated legislation permits utilization of
experience and consultation with interests affected by the
practical operation of statutes."
[Emphasis supplied]
62. In the above cases, the Court had held that a Rule Making
Authority has to make the Rules within the scope of the parent Act and
no Rules shall exceed beyond the scope of the parent Act since it would
amount to ultra vires. Thus, in the present case, the Baggage Rule, 2016
will apply only to the baggage and the Rule made to the extent that the
article “carried on the person” will not include baggage, which was in
excess of powers conferred by the Rule making Authority and would
amount to ultra vires. Therefore, the jewelery worn in person will not
come under the purview of baggage.
63. Since this Court has held that the provision “as carried on the
person” of the Baggage Rules, 2016 is ultra vires, the detention of gold
under the Baggage Rules, 2016, in the present case would not apply,
unless and otherwise if it is secreted in person, for which, the
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proceedings shall be initiated under Section 101 of the Customs Act,
1962, however, that is not the present case, except to the extent of false
charges framed by the 2nd respondent against the petitioner.
64. Further, in this case, no show cause notice was issued prior to
the passing of confiscation order, however it was mentioned in the order
that receipt of show cause notice was waived. As this Court has already
held that the entire Mahazar was prepared with false information in order
to foist case against the petitioner for the reason better known to the 2nd
resondent/Mythili and based on this false information available in the
Mahazar, the confiscation order was passed, this Court is unable to
believe the statement, which was recorded in the confiscation order that
the petitioner has waived the show cause notice.
65. That apart, it was stated that though 3 opportunities of
personal hearing were provided to the petitioner on 04.04.2024,
08.04.2024 and 12.04.2024, no one has appeared before the respondents
and under these circumstances, the confiscation order came to be passed
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on 24.04.2024. However, this Court is of the view that since the
petitioner is a SriLankan citizen, the shorter time provided by the
respondent is not sufficient. In such case, it is clear that the confiscation
order was passed purely in violation of principles of natural justice and
hence, the same is liable to be quashed.
66. Therefore, the confiscation order dated 24.04.2024 is hereby
quashed for the following reasons:
i) The confiscation order was passed without
issuing the show cause notice;
ii) No proper opportunity of personal hearing was
provided to the petitioner prior to the passing of
confiscation order;
iii) Since the Mahazar was prepared with false
information to foist a false case against the petitioner,
the confiscation order was also passed, as an ex parte
order, based on the false information available in the
said Mahazar.
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iv) The manner, in which the jewellery was
brought by the petitioner, as stated in the Mahazar is that
it was brought under the sleeve, however, in the affidavit
and counter, it was clearly stated that the petitioner worn
the jewellery at the time of arrival. Due to the said
contradiction of the respondents, it is clear that there was
a change in the stand of the respondents with regard to
the manner, in which the gold was carried by the
petitioner, from proceedings to proceedings.
v) As per the counter, in this case, the seizure was
made due to the violation of Baggage Rules, 2016.
However, this Court found that the question of violation
of the Baggage Rules, 2016, would not arise since the
Baggage Rule contains a provision as “carried on the
person”, which this Court declared that the said
provision in the Baggage Rule is ultra vires the
provisions of Section 79 of the Customs Act, 1962.
67. For all the above reasons, this Court is inclined to allow this
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writ petition. Accordingly, this writ petition is allowed and the
confiscation order dated 24.04.2024 is quashed. The respondents are
directed to release the goods of the petitioner within a period of 7 days
from the date of receipt of copy of this order. No costs.
68. Further, the Principal Chief Commissioner of Customs (Tamil
Nadu & Puducherry), is directed to conduct the enquiry against the
Officials, who are involved in the entire episode and take appropriate
action in accordance with law and thereafter file a report before this
Court within a period of 3 months from the date of receipt of copy of this
order.
69. As far as the 2nd respondent/S.Mythili, Seizing Officer is
concerned, as discussed above, since her conduct is unbecoming as an
Officer, she has to be necessarily enquired and appropriate action has to
be taken against her by the Department of Personnel & Training (IRS-
Customs). Hence, this matter is referred to the Department of Personnel
& Training (IRS-Customs).
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31.01.2025
Speaking/Non-speaking order
Index : Yes / No
Neutral Citation : Yes / No
nsa
To
1.The Principal Commissioner of Customs (Chennai),
Represented by Seizing Agency AIU,
O/o. The Principal Commissioner of Customs,
New Custom House, Meenambakkam,
Chennai 600 027.
2.The Principal Commissioner of Customs (Chennai),
Representated by Seizing Officer S.Mythili,
O/o. The Principal Commissioner of Customs,
New Custom House, Meenambakkam,
Chennai 600 027.
Copy to
1.Principal Chief Commissioner of Customs (Tamil Nadu &Puducherry),
GST Bhawan,
No.26/1, Mahatma Gandhi Road,
Nungambakkam, Chennai 600 034
2.The Secretary,
Department of Personnel & Traning (IRS-Customs),
North Block, Central Secretariat,
New Delhi, Delhi 110001.
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KRISHNAN RAMASAMY.J.,
nsa
31.01.2025
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