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Judgment
Krishna S.Dixit, J
Petitioner having been found with various foreign currency notes equivalent to INR 1,14,22,720/-along with Indian Currency of Rs. 22,100/- was intercepted by the officers of the Directorate of Revenue Intelligence, Zonal Unit, Bangalore (hereinafter 'DRI'); the container & the currency came to be seized on 16.05.2017 and thereafter confiscated; his appeal against the same having ended in vain, petitioner is knocking at the doors of Writ Court for redressal.
After service of notice, the respondents having entered appearance through the learned CGC, filed the Statement of Objections, resisting the Writ Petition; learned ASG appearing for the CGC vehemently opposes the Writ Petition making submission in justification of the impugned order.
Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:
(a) Shorn of bulky pleadings of the parties and the documents produced by them in support thereof, the essential question that arises for consideration relates to the competence of the Joint Director, Directorate of Revenue Intelligence, Bangalore, to issue the Show Cause Notice dated 10.11.2017 u/s 124 of the Customs Act, 1962 (hereafter '1962 Act'); rest of the issues pale into insignificance should the answer to the said question turns out to be against the respondents.
(b) The subject Show Cause Notice at Annexure-A apparently mentions section 124 of the 1962 Act; the confiscation of the currency & the container were proposed u/s 113 r/w 11(h) of this Act & section 11 of the Foreign Trade (Development and Regulation) Act, 1992 and the Foreign Exchange Management (Export and Import of Currency), Regulations, 2000; the Show Cause Notice also had proposed levy of penalty u/ss 114 & 114-AA of the said Act; petitioner sent his reply within the prescribed period of thirty days, a copy whereof is at Annexure-B, inter alia raising the issue of competence; the said reply having been rejected, confiscation of the currency & the container was effected and fines in varying sums were levied vide order dated 28.8.2018 by Additional Commissioner of Customs, Bangalore; petitioner's appeal No.396-401/2018 dated 19.12.2018 came to be negatived by the first respondent-Commissioner v/o dated 19.12.2018.
(c) The moot question whether the officer of the DRI namely the Joint Director who had triggered the subject Show Cause Notice had power & competence, need not detain the court even for a furlong, the same being no longer res integra; the Apex Court in a very recent case ie., M/S CANON INDIA PVT. LTD Vs. COMMISSIONER OF CUSTOMS, (2021) SCC Online SC 200, having discussed the same inter alia in the light of sections 2(34), 6, 28, of the Act, has observed that the Addl. Director General of the DRI who had issued the Show Cause Notice of the kind, lacked competence; relief to the litigant citizen has been granted by the Apex Court with the following observations at para 23 of the judgment:
"We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid, without any authority of law and liable to be set-aside and the ensuing demands are also set- aside."
The fact matrix of petitioner's case to the extent of competence of the respondents is not much different from the one treated in the said decision inasmuch as the Show Cause Notice has been issued by the incompetent officer; confiscatory order was made on the basis of the said Show Cause Notice; petitioner's reply thereto is rejected; lastly his appeal against the said order is also negatived; all these elements are present in the above decision of the Apex Court; that being the position, the relief to be granted to the petitioner by any logic cannot be short of what has been granted by the Apex Court to a like litigant, in the absence of any exceptional circumstances being demonstrated.
(d) The order in original and the order in appeal are founded on the subject Show Cause Notice; the facts stated in the Show Cause Notice are treated as the foundational facts for these two orders; if the Show Cause Notice is absolutely incompetent, what is stated therein could not have been taken cognizance of to the detriment of the citizen; here comes the maxim ex nihilo nihil fit meaning "Nothing could come out of nothing. Zero multiplied by zero remains zero." vide ASHWANI KUMAR Vs. STATE OF BIHAR, (1997) 2 SCC 1. The decision in DURGA PRASAD Vs. H.R.GOMES, SUPERINTENDENT (PREVENTION) CENTRAL EXCISE, NAGPUR, (LAWS (SC) - 1965-12-15 banked upon by respondent inter alia related to the scope of power of seizure of money in violation of prescribed procedure; such violations ordinarily do not render the proceedings as a whole, is true; but this is subject to the officer accomplishing the seizure & confiscation being statutorily clothed with the power/competence to undertake it; however, that is not the norm invocable in this case which is being decided on the ground of competence of authorities in the light of the latest decision of Apex Court in M/s. Cannon India, supra.
(e) Added to the above, in more or less a similar fact matrix, a Co-ordinate Bench of this Court in W.P.No.10773/2018 (T-CUS) C/w W.P.No.4628/2018 (T- CUS) between SRI.MOHAN C. SUVARNA Vs. THE PRINCIPAL COMMISSIONER OF CUSTOMS, decided on 14.7.2021 has accorded relief to the litigant therein following the decision of the Apex Court in Canon India; despite vociferous submissions, the learned ASG Mr.Naragund ably assisted by the learned CGC Mr.Amit Deshpande, is not in a position to point out the factual difference between the case of the petitioner and the one meticulously treated by the learned Co-ordinate Judge; it hardly needs to be stated that the principle of equality enshrined u/a 14 of the Constitution mandates the judicial organ of the State to treat the like cases alike, lest the unwarranted deviation should risk its invalidation.
In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the Show Cause Notice & the orders impugned.
Costs made easy.