Madras High Court
Arasi Inpamaty Mathiaparanam vs The Assistant Commissioner Of Customs ... on 31 January, 2025
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
W.P.No.17637 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.17637 of 2024
and W.M.P.Nos.19411 & 19412 of 2024
1.Arasi Inpamaty Mathiaparanam
2.Thanushika
3.Kirushalini Reegan
... Petitioners
Vs.
The Assistant Commissioner of Customs (Airport – C Batch),
O/o. The Commissioner of Customs,
Chennai-I Commissionerate,
Anna International Terminal,
Chennai 600 027.
... Respondents
Prayer:
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the
records of the respondent pertaining to the order dated 24.04.2024 in
F.No.OS.No.1569/2023, F.No.OS.No.1570/2023 and
F.No.OS.No.1571/2023 passed by the respondent and to quash the same
1/50
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W.P.No.17637 of 2024
and consequently, direct the respondent to release the Gold ornaments
inappropriately seized by the respondent officials vide seizure/detention
file Nos.OS No.1569/2003 AIU B, OS.No.1570/2023 AIU B, and
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 challenging the order dated
24.04.2024 in F.No.OS.No.1569/2023, F.No.OS.No.1570/2023 and
F.No.OS.No.1571/2023 passed by the respondent and also to direct the
respondent to release the Gold ornaments inappropriately seized by the
respondent officials vide seizure/detention file Nos.OS No.1569/2003
AIU B, OS.No.1570/2023 AIU B, and OS.No.1571/2023 AIU B dated
30.12.2023.
2. The learned counsel for the petitioners would submit that the
petitioners are citizens of SriLanka and had come down to Chennai and
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landed at Chennai International Airport on 30.12.2023 at 03.30 pm along
with 3 children. They planned for pilgrimage, to visit various temples in
Tamil Nadu, as it is their custom and tradition. The 2nd petitioner is the
daughter-in-law of the 1st petitioner and she was newly married to one
Jeyakanth/son of the 1st petitioner. The 3rd petitioner is the daughter of
the 1st petitioner. The details of the family members, who had arrived at
Chennai on 30.12.2023, are as follows:
S.No Name Age Relation to
petitioner
1 Arasu Inbamathi 60 1st petitioner
2 Thanushika 30 2nd petitioner
3 Kirushalini 39 3rd petitioner
4 Abilin Reegan 8
5 Akshara Reegan 6 Children of 3rd
petitioner
6 Arush Reegan 4
3. While passing the customs, the officials of the respondent had
checked their belongings and questioned about their gold ornaments
totally weighing about 288 grams. When the enquiry was conducted, the
petitioners replied that 2nd petitioner had got married and going to France
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after their planned pilgrimage in Tamil Nadu and she has also showed
the return ticket to France to the officials.
4. However, the customs officer did not accepted their statements
and started to treat the petitioners and the 3 children in an arrogant
manner and ordered the 2nd petitioner to remove her Thaalikodi and hand
over the same to the officials. However, she refused and begged the
officials not to remove her Thaali since it is a sentimental ornament
being a symbol and token of marriage. In spite of her request, the
Officials along with her subordinates had forced the 2nd petitioner and
snatched her Mangalya Thalikodi from her neck. Seeing the formidable
behavior of the 2nd respondent, the petitioners 1 and 3 had begged the
officer not to do so. But they were man-handled and pushed on the floor.
The 3 children started screaming and shivering with fear and at one point
of time, the 1st petitioner had fainted and fell down on the floor.
5. Without bothering about anything, the officials had forced the
petitioners to sign on some typed papers, in which it has been mentioned
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that the ornaments seized from them are not sentimental but smuggled
things. However, the petitioners did not agree for the said 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 officials did not allowed them
to read the paper even after signing it. Thereafter, the 2nd petitioner had
begged to allow them to exit, but the duty officer told that the Official,
who handled this matter had left for home and without her knowledge
they could not be allowed to exit.
6. When the condition of the petitioners 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 Officials
has fraudulently mentioned that the petitioners and 3 children were
allowed to exit the Airport at 08.30 pm on the very same day, which
counts only 5 hours of detention.
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7. In spite of expressing the petitioners' genuineness and the
purpose of coming to India, the officials had neglected and refused to
return their jewels. Since the 2nd 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.
8. 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 petitioners are 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
rd
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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 them by the
respondent
4 Abilin Reegan 8
Children of 3rd 24 (8 grams Nil
5 Akshara Reegan 6
petitioner each)
6 Arush Reegan 4
Total 288
9. 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.
10. Further, he would submit that in the present case, the
allegations of the petitioners have not been specifically denied by the
respondent in their counter. Normally, the averments in the affidavit,
which were not specifically denied, are deemed to be admitted by the
respondent. In such case, it is crystal clear that the Mahazar was
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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.
11. The counter filed by the respondent varies from the
confiscation order on the aspect of the manner, as to how the gold was
carried by the petitioners. Further, before passing the confiscation order,
no show cause notice has been provided and no opportunity of personal
hearing was given to the petitioners, which is purely violation of
principles of natural justice. Therefore, he would contend that the entire
seizure and confiscation proceedings, are illegal and the same is liable to
be quashed.
12. 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.,
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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.
13. Per contra, the learned Senior Standing counsel appearing for
the respondent would submit that the petitioners herein were intercepted
by the Officers respondent on 30.12.2023. Upon enquiry, it was found
that they were possessing gold jewellery, which is non-bonafide baggage
for a foreign national and personal search was conducted.
14. During the personal search, the 1st petitioner worn gold jewels,
weighing 78 grams, the 2nd petitioner was found wearing two gold
bangles and three gold chains of 22K purity, collectively weighing 166
grams and the 3rd petitioner worn gold jewels, weighing 44 grams. The
said jeweleries were handed over by the petitioners for examination and
quantification. Subsequently, the said jewellery being a non-bonafide
baggage and the petitioners being foreign national, were ineligible to
bring gold jewellery into India either in their person or in their baggage,
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the same was seized under Section 110 of the Customs Act, 1962, under
separate Mahazar proceedings conducted on 30.12.2023.
15. Further, he referred the Baggage Rules, 2016 and would
submit that since the baggage, carried by the petitioners, is non-bonafide
and they are not permitted to carry the gold either in person or in
baggage as per the Baggage Rules, 2016, the proceedings were initiated
against the petitioners 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 petitioners have to prove
before the Adjudicating Authority as to how their jewels are not liable
for confiscation, which requires appreciation of evidence especially as to
why the petitioners did not declare the jewels with the Authorities and as
admitted by their in the statement recorded under Section 108 of the
Customs Act, 1962, if they brought it for monetary consideration.
16. Further, he had referred the judgment of the Hon'ble Division
Bench of this Court rendered in CMA.No.1716 of 2020 [The Principal
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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.
17. 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
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.
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18. I have given conscious consideration to the submissions made
by the learned counsel appearing for the petitioners and the learned
Senior Standing counsel appearing for the respondent and also perused
the materials available on record.
19. In the case on hand, the petitioners are citizens of SriLanka,
who travelled to Chennai on 30.12.2023 at 3.30 pm. When the search
was conducted, it was found by the officials of the respondent that the
petitioners have wearing jewels, which exceeds the limit prescribed in
the Baggage Rules, 2016. 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 the by the
petitioner respondent
4 Abilin Reegan 8
Children of 3rd 24 (8 grams Nil
5 Akshara Reegan 6
petitioner each)
6 Arush Reegan 4
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20. At the time of search, the officials had seized the “thaalikodi”
of the 2nd petitioner without even considering its sentiments. According
to the petitioners, 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.
21. It was also found by the officials that the 2nd 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 gold
while travelling. When the officers are conducting search, they have to
respect the customs of every religion of this Country. In such case, it is
very unfair on the part of the officials to remove the “thaalikodi” from
the 2nd petitioner, who is yet to start her marriage life with her husband at
France in the last week of January, 2024.
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22. 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 respondent for the averments made by the petitioners 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
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.
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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.
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.
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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.
23. All the above averments, which are made against the
respondents, have not been denied by the respondent in their counter
dated 23.07.2024 except the general and bald denial of the averments in
the writ affidavit of the petitioner. 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.
24. 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
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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” would not absolve the deponent of 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.
25. 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;
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(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.
(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.”
26. 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
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affidavits, reply affidavits and other affidavits.
(2) Any respondent who intends to file a counter
affidavit, shall, unless otherwise ordered, file it within
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.”
27. 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
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(d) the interim relief, final relief, it is obligatory on
part of the deponent of the counter affidavit to specifically
deny the averments raised.
28. 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.
29. 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:
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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
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.”
30. From a reading of above, it is clear that since the respondent
has not denied any of the averments raised by the petitioners, no doubt, it
is proved that the entire proceedings were conducted in disrespectful
manner and the officials have removed the jewels from the petititoners,
particularly, they had snatched the “thaalikodi” from the neck of the 2 nd
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 petitioners, which is contrary to the above
admitted facts.
31. Further, in the confiscation proceedings against the 1st
petitioner, it has been recorded as follows:
i) At paragraph No.1 of the confiscation order
dated 24.04.2024, it has been stated that “upon search
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of her person, 4 yellow coloured metal bangles and 2
yellow coloured metal chains and one bracelet were
found worn on her hand concealed in her full sleeves
also found worn.”
ii) At paragraph No.7 of the confiscation order, it
has been stated that “upon search of her person, 2 nos.
of yellow coloured metal chains, one bracelet and 4 nos.
of yellow coloured metal bangles were found from her
sleeves of shirt and the same was recovered.”
32. The above 2 statements, which recorded in the confiscation
order, shows two different version, i.e., in the 1st place, it has been stated
that the jewels were worn on her concealed in her full sleeves, whereas
in the 2nd place, it has been stated that jewels were found from her
sleeves.
33. That apart, in the confiscation order passed against the 2nd
petitioner, it has been recorded as follows:
i) At paragraph No.1 of the confiscation order
dated 24.04.2024, it has been stated that “upon search
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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.”
34. 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
sleeves, in the 2nd place, it has been stated that metal bangles were found
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from her sleeves and in the 3rd place, it has been stated that the jewellery
were recovered from under her sleeves.
35. Further, in the confiscation order passed against the 3rd
petitioner, it has been recorded as follows:
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 1
yellow coloured metal chains were found worn on her
hand concealed in her full sleeves also found worn.”
ii) 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, gold chain
and 2 nos. of gold bangles were recovered from under
her sleeves of shirt.”
36. The above 2 statements, which were recorded in the
confiscation order, shows two 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 and in the 2nd place, it has been stated that metal bangles were
found from her sleeves.
37. The real fact is that all the jewels were worn by the petitioners
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 it was concealed under the sleeves and brought
illegally by the petitioner.
38. Therefore, the 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 proved that the Mahazar was prepared with false
information, in order to, fix the petitioners into the case for ulterior
notice for the reasons better known to them. This Court suspects that the
officials have orchestrated this entire episode in order to divert the
attention of the others for the benefit of somebody else.
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39. Therefore, as stated in the averments of the petitioners, the
case was foisted against the petitioners 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 respondent, the same
would amount to deemed to be admitted by them.
40. Further, it appears that the petitioners 1 and 2 have 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.
41. Apart from the illegalities in detaining the petitioners, the
seizure of gold and the preparation of Mahazar, 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
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an issue as to whether the jewelery worn on the person would constitute
“Baggage”.
42. 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
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.”
43. Though the Hon'ble Division Bench has arrived at the above
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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.
44. In the present case, the learned counsel appearing for the
petitioners 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.
45. At this juncture, it would be apposite to extract Section 79 of
the Customs Act, 1962, which reads as follows:
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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
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
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baggage may be passed free of duty.
(3)Different rules may be made under sub-section
(2) for different classes of persons.
46. 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.
47. 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
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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.
48. 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
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;
49. A reading of the above definition would show that baggage
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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
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
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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; "
50. 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:
"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, -
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(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:
51. 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
52. The Customs Act, 1962, enables the Central Government to
make Rules to the extent of the articles carried in the baggage of a
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.
53. 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
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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.
54. On the other hand, if anyone worn any unreasonable amount of
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.
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55. 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.
56. 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.
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57. 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.
58. 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;
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.
59. 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
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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”.
60. 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
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.
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(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.”
61. Further, in the judgment of the Hon'ble Apex Court rendered in
State of Jammu and Kashmir vs. Lakhwinder Kumar and others
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
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this submission.
62. 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
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:
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"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]
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
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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
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
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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
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policy. The need for delegated legislation is that they are
framed with care and minuteness when the statutory
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]
63. 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.
64. 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
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under the Baggage Rules, 2016, in the present case would not apply,
unless and otherwise if it is secreted in person, for which, the
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 officials against the petitioner.
65. 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
officials 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
petitioners had waived the show cause notice.
66. That apart, it was stated that though 3 opportunities of
personal hearing were provided to the petitioners on 04.04.2024,
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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
on 24.04.2024. However, this Court is of the view that since the
petitioners are SriLankan citizens, the shorter time provided by the
respondent is not sufficient. In such case, it is clear that the confiscation
orders were passed purely in violation of principles of natural justice and
hence, the same is liable to be quashed.
67. Therefore, the confiscation orders dated 24.04.2024 is hereby
quashed for the following reasons:
i) The confiscation orders were 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 orders;
iii) Since the Mahazar was prepared with false
information to foist a false case against the petitioners,
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the confiscation orders were also passed, as an ex parte
order, with the false information available in the said
Mahazar.
iv) The manner, in which the jewellery was
brought by the petitioners, as stated in the Mahazar is
that it was brought under the sleeve, however, in the
affidavit, it was clearly stated that the petitioners worn
the jewellery at the time of arrival. Due to the said
contradiction of the respondent, 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
petitioners, 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 has found that the question of
violation of the Baggage Rules, 2016, would not arise
apply 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.
68. 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 orders dated 24.04.2024 is quashed. The respondents are
directed to release the goods of the petitioners within a period of 7 days
from the date of receipt of copy of this order. No costs. Consequently,
the connected miscellaneous petitions are also closed.
69. Further, this Court directs the Registry to forward a copy of
this order, along with the order passed in the connected matter, viz.,
W.P.No.5005 of 2024, to the Principal Chief Commissioner of Customs
(Tamil Nadu &Puducherry) and The Secretary, Department of Personnel
& Traning (IRS-Customs), for taking appropriate action.
31.01.2025
Speaking/Non-speaking order
Index : Yes / No
Neutral Citation : Yes / No
nsa
To
The Assistant Commissioner of Customs (Airport – C Batch),
O/o. The Commissioner of Customs,
Chennai-I Commissionerate,
Anna International Terminal,
Chennai 600 027.
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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
and W.M.P.Nos.19411 & 19412 of 2024
31.01.2025
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