Salem Shevapet Silver and Katcha Exchange Brokers Association vs Supdt. of Customs Preventive, Salem

Shivraj V. Patil, J.

Heard the learned Counsel for the parties.

The petitioner - Salem Shevapet Silver & Katcha Exchange Brokers Association, in this writ petition, has sought for Writ of Mandamus

directing the respondents not to search any place of business of the members of the petitioner association for seizing any Silver Bullions without

strictly adhering to norms prescribed in the circular of the third respondent dated 11-6-1990, and pass such other or further orders as deemed

proper.

The respondents have filed counter affidavit. In paragraph 5 of the counter affidavit, the respondents have stated thus :-

For the petitioners averment in para 8, it is submitted that the communication of the Ministry clearly provides that even though the silver bullions

had been notified u/s 123 of Customs Act, 1962, it was made to obviate the difficulties arising from casting burden u/s 108 on the person from

whom the silver bullion are seized is ill founded and fanciful. The first respondent is scrupulously following the instructions contained in the

Ministry''s Letter F. No. 394/233/88 Cus. (As), dated 11-6-1990 in respect of the silver bullion of above 100 kgs., the silver bars weighing 30

kgs. (each) which are being smuggled into India. The silver bullion found to bear foreign markings and lesser quantities of silver bullion. To

circumvent the Ministry''s instructions and to avoid detection by Customs officers, the unscrupulous dealers melt the silver bullion of foreign origin

into lesser quantities i.e., less than 30 kgs. bars without changing the purity. They do not want to change the purity in order to fetch good market.

Almost all seizure of silver bullions below 30 kgs. a bar each proved to be having extraordinary lustre having purity of 99% and therefore they

were seized on the reasonable belief that they were illicitly imported into India in violation of the provisions of Customs Act, 1962. The instructions

contained in Ministry''s letter dated 11-6-1990 is to prevent the possibility of undue harassment to law abiding persons possessing small quantities

of silver bullions of Indian origin. Whereas the seizures effected by the first respondent fall under the former category, wherein the unscrupulous

elements, in order to circumvent the instructions of Ministry and to avoid detection by Customs Officers, melted the silver bullion of foreign origin

into lesser quantities and they were all found to be of 99% purity. Therefore the first respondent, on the reasonable belief that they were melted out

of illicitly imported silver bars into India in violation of the provisions of Customs Act, seized them for taking further action under Customs Act.

Therefore the petitioners'' contention that, while the Ministry''s instructions are observed throughout the Country and on the contrary the first

respondent does not follow those instructions are not correct.

The learned Counsel for the petitioners contended that all that the petitioners want is that the respondents should act strictly in accordance with

the circular dated 11-6-1990 in the matter of search of any business place of the members of the association for seizing any silver bullions. In other

words he submitted that the respondents cannot act against the instructions contained in the said Circular.

The learned Counsel for the respondents submitted that in the counter affidavit filed, various contentions raised by the petitioner in the writ

petition have been met and the position is explained. He also pointed out that the respondents, in the counter affidavit filed, have stated specifically

that the first respondent is scrupulously following the instructions contained in the Ministry''s Letter No. F. 394/233/88. Cus. (As), dated 11-6-

1990.

In the light of the specific statement made by the respondents in the counter affidavit that the respondents are acting in accordance with the

instructions contained in the circular, dated 11-6-1990 referred to by the petitioners in the writ petition, I do not think it necessary to deal with the

various other contentions raised in the writ petition, so also to refer to the other details given in the counter affidavit or the contentions raised therein

for the matter. In view of this, I hardly see any controversy between the parties.

In the result, I pass the following order :-

In view of the statement made by the respondents that they shall adhere to the circular instructions contained in the circular, dated 11-6-1990, it is

not necessary to issue any Writ of Mandamus as sought for. The statement of the respondents is placed on record and accordingly the Writ

petition is disposed of.