High Court of Meghalaya
Shri. Bikash Soni vs The Union Of India on 5 April, 2024
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 08
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 353 of 2023 Date of Decision: 05.04.2024
Shri. Bikash Soni,
S/o Saraban Kumar,
R/o Plot No. 874, Tikkadmal Ka Rasta,
Kishanpole Bazar, Jaipur, Rajasthan ::::Petitioner
-Vs-
1.The Union of India
Through Ministry of Finance
Department of Revenue, M.G. Road
Shillong, Meghalaya, 793001
2.Commissioner of Customs
Office of Commissioner of Customs(Preventive),
Customs House, 110 MG Road,
Shillong, Meghalaya
3.Office of the Commissioner of Customs
A/S Unit, Imphal, Manipur ::::Respondents
1
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. D.S. Chadha, Adv. with
Mr. B. Deb, Adv.
For the Respondent(s) : Dr. N. Mozika, DSGI with
Ms. S. Rumthao, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. The petitioner from whose possession a gold bangle was seized under
the Customs Act, while travelling from Imphal to Delhi, is before this Court
with a prayer for directions to issue to release/return the gold bangle to the
petitioner under the provisions of Section 110(2) read with Section 124 of
the Customs Act, 1962.
2. Mr. D.S. Chadha, learned counsel for the petitioner has submitted that
after the seizure of the gold bangle on 04.04.2023, and after registration of
the case, a show cause notice dated 03.10.2023, was issued and was
received by the petitioner on 10.10.2023, which was after a period of 6(six)
months, from the date of the seizure. The learned counsel has submitted that
as per Section 110(2) of the Customs Act, where any goods are seized under
sub-section (1), and no notice in respect thereof is given under clause(a) of
Section 124, within 6(six) months of the seizure of the goods, the goods
shall be returned to the person from whose possession they are seized. The
learned counsel has also referred to Section 124, whereby reasonable
opportunity of being heard is to be allowed to the concerned persons. He
then contends that, as the show cause notice was received by the petitioner
only on 10.10.2023, after a period of 6(six) months, on being dispatched by
the respondents via speed post on 05.10.2023, which was after the period of
6(six) months, the respondents therefore, in view of the violation of Section
110(2) and 124 of the Customs Act, are liable to return the gold bangle to
the petitioner.
3. In support of his case, the learned counsel has placed reliance on a
judgment of the Delhi High Court in the case of Purushottam Jajodia vs.
Dir. of Revenue Intelligence, New Delhi reported in 2014 (307) E.L.T. 837
(Del.), wherein he submits, it has been held that goods which had been
seized under Section 110(1) of the Act, cannot be retained beyond the
stipulated period of 6(six) months or the extended period of further 6(six)
months, if no notice in respect of the goods is given under Section 124(a) of
the said Act, within the said period. He further submits that this judgment
has also been upheld by the Hon'ble Supreme Court by an order dated
11.05.2015, passed in Civil Appeal No. 3122 of 2015 and 3123 of 2015
(Dir. of Revenue Intelligence, New Delhi vs. Purushottam Jajodia).
4. Dr. N. Mozika, learned DSGI assisted by Ms. S. Rumthao, learned
counsel for the respondents has submitted that the show cause notice was
issued on 03.10.2023, as per the proviso to Section 124 of the Customs Act,
but however, due to the imposition of strict curfew by local Civil Society
Organizations (CSO's) and District Magistrates within Imphal and the
adjoining areas arising out of the on-going communal conflict, which
erupted since 03.05.2022, the show cause notice could not be sent to the
noticee by post on 03.10.2023, and the same was sent by speed post only on
05.10.2023, when the curfew was relaxed by the administration. He has
further submitted that, in the cases of Asstt. Collector of Customs vs.
Charan Das Malhotra reported in (1971) 1 SCC 697 and Harbans Lal vs.
Collector of Central Excise and Customs reported in (1993) 3 SCC 656, it
has been held that the period laid down in Section 110(2) affects only the
seizure of the goods and not the validity of the notice, and that Section 124
the proceeding survives even though, the seized goods might have to be
returned or stand returned, in terms of Section 110 of the Act, after the
expiry of the permissible period of seizure. He lastly submits that, the
respondents being prevented by sufficient cause in not issuing a show cause
notice within the stipulated period due to reasons beyond their control, the
same may be viewed leniently by this Court, as an important fact that
cannot be ignored is that, the petitioner was not in possession of any licit
documents to show that, he was in lawful possession of the said gold
bangle.
5. Having heard the learned counsel for the parties, and as the question
involved is only with regard to the observance of the provisions of the
Customs Act namely Sections 110 and 124, with regard to seizure and
issuance of show cause notice, the relevant extract thereof, are reproduced
herein below for easy reference.
"110. Seizure of goods, documents and things.--(1) .................
(2) Where any goods are seized under sub-section (1) and no notice
in respect thereof is given under clause (a) of section 124 within six
months of the seizure of the goods, the goods shall be returned to
the person from whose possession they were seized:
[Provided that the Principal Commissioner of Customs or
Commissioner of Customs may, for reasons to be recorded in
writing, extend such period to a further period not exceeding six
months and inform the person from whom such goods were seized
before the expiry of the period so specified:
124. Issue of show cause notice before confiscation of goods, etc.--
No order confiscating any goods or imposing any penalty on any
person shall be made under this Chapter unless the owner of the
goods or such person--
(a) is given a notice in 1[writing with the prior approval of the
officer of Customs not below the rank of 2[an Assistant
Commissioner of Customs], informing] him of the grounds on
which it is proposed to confiscate the goods or to impose a penalty;
(b) is given an opportunity of making a representation in writing
within such reasonable time as may be specified in the notice
against the grounds of confiscation or imposition of penalty
mentioned therein; and
(c) is given a reasonable opportunity of being heard in the matter:
Provided that the notice referred to in clause (a) and the
representation referred to in clause (b) may, at the request of the
person concerned be oral.
[Provided further that notwithstanding issue of notice under this
section, the proper officer may issue a supplementary notice under
such circumstances and in such manner as may be prescribed.]"
6. A perusal of the above noted sections clearly reflects that, Section
110(2) mandates that if a notice is not given under Section 124(a), within
6(six) months of the seizure, the goods shall be returned to the person from
whom the possession they were seized. The proviso to Section 110(2), has
however provided that the mandatory period may be extended for a further
period not exceeding 6(six) months, and for the person from whom the
goods were seized to be informed before the expiry of the extended period.
In the instant case, it is not disputed that the seizure was made on
04.04.2023, which meant that the notice should have been issued prior to
03.10.2023, which however, was not the case, as the show cause notice was
sent by speed post on 05.10.2023, after the mandatory period as per Section
110(2) had lapsed. The proviso allowing for extension of time was also not
resorted to by the respondents. Section 124 as can be seen from above,
prohibits the confiscation of any goods or imposing any penalty unless the
owner of the goods or such person is given a notice and an opportunity of
making a representation and also of being heard. The issuance of a show
cause on time therefore, being fundamental in such matters, and the same
having not been complied with by the respondents, is thus hit by Section
110(2) of the Act.
7. Though spirited submissions have been made to attribute the delay
due to the disturbances in Manipur, this Court has noted that the show cause
notice was not issued from the office of the respondents in Imphal,
Manipur, but from the office of the Commissioner of Customs
(Preventive) North Eastern Region, Shillong, Meghalaya. The excuse as
offered by the respondents to justify the delay therefore falls flat, and this
Court is constrained to observe and deprecate the callous attitude of the
respondents, not only in the proceedings to do with the seizure and issuance
of the show cause notice, but also in the preparation of the affidavit, which
amounts to misleading the Court.
8. The relevance of the judgment Purushottam Jajodia vs. Dir. of
Revenue Intelligence, New Delhi(supra), cited by the petitioner is noted, as
it essentially covers the case with regard to the sanctity of the 6(six) month
period of show cause, and as such, no further discussion is required on the
same. As far as the judgments cited by the learned DSGI are concerned, it is
noted that as held therein, Sections 110 and 124 are independent of each
other, and under Section 110, even though the seized goods might have to
be returned or stand returned, the proceedings survive under Section 124.
9. Accordingly, for the reasons aforementioned, the writ petition is
allowed and the respondents are directed to release the gold bangle seized
from the petitioner forthwith.
10. Writ petition is disposed of however, with no order as to costs.
Judge
Meghalaya
05.04.2024
"D.Thabah-PS"
