High Court of Delhi was dealing with petition filed under Section 482 of the Cr.P.C for setting aside the order passed the Ld. Chief Metropolitan Magistrate which directed the disposal of the goods imported by the petitioner which are perishable in nature and kept in the custody of the respondent in accordance with the Disposal Manual 2019.
Brief Facts:
The Petitioner herein is a businessman and is the sole proprietor of M/s Jai Dev Traders, Ghaziabad. The Petitioner had imported Dry Dates from Dubai originating from Iran, about 8 containers and 6 bills of entry of the dates were produced against the consignment. The Customs department received intelligence information that this consignment did not originate in Iran but loaded from Karachi Port by one agency namely Maersk Pakistan Line. The 8 containers were accordingly taken in custody. M/s Maersk Line stated that the containers were shipped from Karachi Port, Pakistan. Thereafter, the seized containers were inspected and summons was issued to the Petitioner. The statement of the Petitioner was recorded under Section 108 Customs Act where he allegedly admitted to the e-mail of Maersk Line confirming the origin of the goods to be from Karachi Port, Pakistan and not Iran. The Customs Department arrived at the conclusion that the Petitioner had deliberately suppressed the origin of the containers containing packaged dry dates for evading customs duty as goods imported from Pakistan carry a higher import duty as against imported goods from Iran which have a lower rate of import duty. The department therefore finalized the amount of duty levied on the consumable goods imported from Pakistan and booked the Petitioner under Section 135 Customs Act and arrested him whereafter he was sent to Judicial custody. The Petitioner was released out on bail. The Respondent herein preferred an application under Section 451 CrPC before the CMM, Patiala house seeking disposal of the perishable seized goods. The Ld. CMM directed the disposal of seized goods by stating that perishable goods seized by the customs should be disposed of in a quick and efficacious manner.
Petitioner’s Contention:
The counsel for the petitioner submitted that the Ld. CMM did not possess the jurisdiction to pass an order to dispose of the imported goods under Section 451 of the Cr.P.C. He argued that Customs Act being a special legislation, the provisions of the Cr.P.C would be inapplicable. He submitted that any disposal of the goods should have been in accordance with Chapter XIV of the Act which prescribes for confiscation of goods and the levying of penalties and punishment and any rule made in pursuance thereunder. He stated that the Customs Act is self-contained and only the authorities under the Customs Act have the jurisdiction to dispose of the goods confiscated under the Customs Act. He submitted that order directing disposal could not have been passed either under Section 451 CrPC or Section 122 Customs Act. He further argued that, under Section 451 Cr.P.C the criminal court can only make such order during a trial or pending the conclusion of the inquiry under Cr.P.C.
Respondent’s Contention:
Learned Counsel for the respondent submitted that firstly the consignment of goods imported into India was falsely shown as being imported from Iran and was imported in India from Karachi, Pakistan to evade payment of the applicable customs duty on goods arriving in India from Pakistan. He submitted that the bills shown by the Petitioner showing the origin of the seized goods as Iran were false and that the Petitioner had deliberately mis-declared the origin of the country from where it was imported and this has been carefully verified by the department from M/s Maersk Line Pvt. Line which was the shipping agent of the goods.
Further, he submitted that the disposal of the goods was not under the provisions of the Cr.P.C, it was done in accordance with the Disposal Manual of 2019 that is made applicable the Customs Act. He stated that the Disposal Manual itself mandates the procedure of disposal or discarding of goods is to be done as per the process laid down under Section 451 CrPC. He submitted that the goods in question were dry dates which have a very short shelf life and are perishable in nature which require it to be consumed within a period of time.
HC’s Observations:
After hearing both the sides Court stated that the Customs Act provides for a comprehensive framework governing the import and export of goods, articles into the country with an objective to curb smuggling of goods into the country through seaports and airports.
HC relied upon the case of CBI V. State of Rajasthan, where SC held that “the Foreign Exchange Regulation Act was a self-contained code which was governed by its special trappings and that a police officer could not make an application under Section 155(2) CrPC to the Chief Judicial Magistrate to obtain permission to investigate offences committed under the FERA.”
Court observed that the petitioner imported dry dates and mis-stated that the origin of them was Iran for gaining immunity from paying a higher percentage of tax. However, the Petitioner told the Respondent that they may re-export the dry dates, import it back which would discharge some extent of the liability on him. This offer was not acceptable to the Respondent and they directed the confiscation of goods and thereafter made an application to the Criminal Court under Section 451 Cr.P.C to dispose of the dates which are a perishable consumable.
Court stated that the question that arises for consideration herein is that whether the procedure adopted by the Respondent as prescribed in the Disposal Manual 2019 is correct considering that the Customs Act is a special law and an complete code in its operation.
HC Held:
After evaluating submissions made by both the parties the Court held that “Category 1 of the Disposal Manual, 2019 outlines the goods that have a short life and therefore limited period of usage and the goods imported by the Petitioner fall under this category. A perusal of the disposal manual does not indicate that provision under Section 451 Cr.P.C can be invoked for disposal of the goods confiscated under the Customs Act.”
HC allowed the petition.
Bench: Hon'ble Mr. Justice Subramonium Prasad
Case Title: Amit Kumar Gupta v. Principal Commissioner Of Customs (Import)
Case Details: CRL.M.C. 236/2021 & CRL.M.A. 1244/2021
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