Commissioner of Cus. (Preventive) vs Kallarackal Jewellers

Ashok Bhushan, Actg. C.J.

Heard the learned counsel for the petitioner as well as the learned senior counsel appearing for the respondent. This writ appeal has been filed against an interim order passed by the learned Single Judge dated 10th December 2014 in W.P. (C) No. 30484/2014.

The respondent in this appeal, who was the petitioner in the writ petition, had filed the writ petition challenging the order dated 5-12-2014 passed by the Commissioner of Customs Preventive passed the following order:

"I order provisional release of gold ornaments weighing 11901.985 gms (6245.06 gms seized from premises of M/s. Kallarackal Jewellery, Angamaly, 4581.581 gms restrained from premises of Ajay & Co., Trissur and 1075.31 gms restrained from premises of Leo''s Angel Gold, Trissur) under Section 110A of Customs Act, 1962, subject to following conditions.

(1) Petitioner is to execute a bond for Rs. 300,00,000/- (Rupees Three crores only).

(2) Petitioner to furnish security amounting to Rs. 60,00,000/- (Rupees sixty lakhs only). This security can be in the form of either cash deposit or Bank Guarantee from nationalized bank, renewable till proceedings are completed."

The learned Single Judge passed an interim order directing that the petitioner be permitted to release of the gold on executing a simple bond. The writ petition is still pending for consideration. Counsel for the appellant submits that the order passed by the Commissioner was in exercise of his statutory power under Section 110A of the Customs Act, 1962. He submits that the provisional release of gold ornaments weighing 11901.985 gms was subject to condition of execution of bond of Rs. 3 crores and furnishing security amounting to Rs. 60 lakhs in the form of either cash deposit or bank guarantee. He submits that various arguments raised in the writ petition on merits are still to be completed and in the event provisional release is permitted on simple bond, the whole purpose shall be frustrated. He submits that there was no error in the exercise of power in the Commissioner directing provisional release. The interim order passed by the learned Single Judge virtually allows the writ petition and grants the relief which could have been available at best at the time of final disposal of the writ petition.

We are of the view that such an interim could not have been passed, especially when there was no lack of jurisdiction in passing the order and the order has not been prima facie perverse. We are, thus, of the view that sufficient ground has been made out to set aside the order dated 10-12-2014 passed by the learned Single Judge.

Now that the writ petition is pending consideration before the learned Single Judge, we make it clear that we are not expressing anything on the merits of the case. It is for the learned Single Judge to consider all the arguments and take a decision on merits.

The learned counsel for the appellant expressed his apprehension that the simple bond which may be submitted by the writ petitioner may not be accepted. Counsel for the appellant fairly submits that what was contemplated in Ext. P16 order is simple bond. With the above observation, the appeal is allowed.