Vijay Kumar vs Union of India (UOI) and Others

I.P. Singh, J.—This application is directed against the order dated 26.9.2003 for the release of the seized gold passed by the learned Special Judge, Economic Offences, Patna in Complaint Case No. 100(C) of 1998.

Earlier an interlocutory application vide I.A. No. 433 of 2003 was filed before this Court which was permitted to be withdrawn.

It appears that on a complaint case filed by the Inspector Customs cognizance was taken against the Petitioners u/s 135 (1)(b) of the Customs Act, 1962 (in short the ''Act''). Against this order of cognizance the present criminal miscellaneous application under provisions of Section 482 of the Code of Criminal Procedure (in short ''the Code'') was filed before this Court praying therein to quash the order of cognizance and also the entire proceeding arising out of Complaint Case No. 100(C) of 1998.

The facts relating to this case are as follows:

(i) That on receipt ofinformation regarding carrying of gold biscuits of foreign origin through Border, Raxaul Preventive team under the leadership of A.C. of Customs was formed which reached Gandhi Setu at 01:30 hrs. on 15.3.98.

(ii) That on 15.3.1998 at 3.30 hrs a'' truck was signalled to stop by customs official and driver of the truck stopped and disclosed his name Braj Kishore Parit and also disclosed that consignment loaded on the truck is Dara Wheat.

(iii) That on search of the cabin of the truck, two packets wrapped in black tape were recovered from box in the body of truck above the steering wheel.

(iv) That Shri Awadhesh Kumar Thakur accepted that said belongings were kept by him stating that each packet contained 8 pieces of foreign origin gold biscuits recovered and seizure list prepared after bringing the truck to Central Revenue Building.

(v) That a gold smith was called to examine the purity of gold biscuits and weighed all the 16 swiss origin gold biscuits, the total weight was found to be 1666.800 grams valued at Rs. 9.71,776/- and purity was found to be of 24 caret.

(vi) That during course of interogation Awadhesh Kumar Thakur revealed that recovered 16 pieces of foreign origin gold biscuits belonged to Shri Vijay Kumar.

It also appears that 16 pieces of gold biscuits seized with foreign make marking were sent to the belongings of the Petitioners by the concerned authorities from the possession of Petitioner No. 2, Awadhesh Kumar Thakur which were confiscated by the adjucating authority. They were further ordered to be confiscated under the orders of the Custom, Patna. Against that order four appeals were filed before the Custom, Excise, Gold (Control) Appellate Tribunal, Kolkata (in short the (CEGAT). By the order dated 18.2.2002 the Tribunal set aside the confiscation of the gold biscuits as well as the truck from which the same were recovered. Accordingly, the appeals were allowed. Against the order of CEGAT, Tax Case No. 66 of 2002 was filed by the Commissioner of Custom, Patna u/s 130A of the Act for directing the CEGAT to refer the question of law stated in paragraph B& 3 and during pendency of this application order of stay of the operation of the order of the CEGAT dated 18.2.2002. The application is pending for disposal.

Learned Counsel appearing on behalf of the Petitioners has submitted that 16 pieces of seized gold have been legally purchased by the father of Petitioner No. 1 on valid documents on a consideration amount of Rs. 7,54,916/- and the order of confiscation dated 22.6.01 passed by the Commissioner Custom, Patna has been set aside. No criminal case is made out against the Petitioners and continuation of criminal proceeding in Complaint Case No. 100(C) of 1998 is bad and is an abuse of the process of the court. It has been further submitted that the Tax Case No. 66 of 2002 filed by the Commissioner Custom, Patna on 28.10.2002 much after 180 days of period of limitation against the order of CEGAT dated 18.2.2002 has been filed at the instance of Custom Department only to delay the release of the gold and harass the Petitioners. It has been further submitted that CEGAT, Kolkata is the final court of fact being an appellate court and its decision should be binding on the department until and unless some serious legal lacuna has not been pointed out. The High Court usually does not entertain reference after such decision. On this point the learned Counsel has relied on a decision reported in. Smt. Bimla Sharma Vs. The State of Bihar and Others, . in which it was held that after the order of CEGAT. Kolkata being an appellate and final court the criminal prosecution must come to an end and it was incumbent on-the part of the Commissioner of Custom, Patna who has released the seized gold to the concerned. It has been further submitted that u/s 130(1) of the Act a reference to High Court can only be made on the question of law arising out of order of CEGAT and reference can not be made for the purpose of reappraisal of the evidence. As such reference case referred above made by the Commissioner of Custom, Patna is not maintainable since it is on the question of. fact and it is for the re-appraisal of the evidence. It has also been mentioned that the jurisdiction of the High Court on reference confines only on the decision of question of law raised and the High Court is not empowered to grant stay order against which reference is sought for u/s 130(1) of the Act. In support of his view learned Counsel has also drawn my attention towards a case reported in 2002 (2) B.L.J. 151 : Commissioner, Central Excise Vs. Gemini Silk Ltd. and Others . in which it has been held that Custom Act, Section 130(1) reference to High Court can be made only on question of law arising out of order of CEGAT and reference can not be made for purpose of re-appraisal of evidence. He has also relied on a decision reported in 2002 (2) B.L.J. 206 : Sharda Plastic Industries and Another Vs. The Union of India (UOI) and Others, .

On the other hand in the counter affidavit filed on behalf of the opposite party the facts so stated in the petition has been controverted and it has been submitted that the Economic Offence Court, Patna has rightly rejected the prayer of the Petitioner for the release of the seized gold finding no merit in the case.

But since the matter is still pending decision in Tax Case No. 66 of 2002, I am not expressing any opinion with respect to the points raised on behalf of both the parties.

However, heard the parties with respect to the application filed on behalf of the Petitioners in which it has been submitted that the recovery of gold biscuit from their possession has not been disputed. They were, however, confiscate by the department on the ground that they were contraband and had foreign marking. However, on this point the order of CEGAT is quite clear which runs as follows:

The sale documents produced by the Appellants cannot be dismissed on the said ground. In the instant case also, we find that the entire chain of sequence starting from importation of gold biscuits of M/s Kan Karan Impex, its sale to M/s. Chauhan Sevares and further sale to Shri Kapildeo Prasad, is established. As such taking the said factor into account, I am of the view that the onus cast upon the Appellants under the provisions of Section 123 stands fully discharged. The confiscation of the gold biscuits is not called for. Accordingly, I set aside the same.

Inasmuch as the confiscation of the gold biscuits have been set aside, the confiscation of the truck is not called for. For the similar reasonthere is no warrant for imposition of penalties upon the various persons. The said is, accordingly, set aside.

From the aforesaid it appears that the CEGAT has set aside the confiscation of the gold biscuits alleged to have been recovered from the possession of the Petitioners. There is no dispute that the CEGAT is the final court of fact of the custom matter until and unless stay of the order is not there. The order of confiscation stands set aside and as such gold validly belonged to the owner. Now they have come forward with a prayer to release the gold biscuits in their favour. In recent past the Hon''ble Supreme Court had specially in number of cases has held that under the relevant provision of order of custom and disposal pending trial the court should be gracious and expedition in releasing the seized articles u/s 451 of the Code. Admittedly by the order of CEGAT the gold has been confiscated which beings to the Petitioners and it is kept in "custody since past six years. The Petitioners had already invested quite a sum of money amounting to Rs. 7,54,916/- and his money is out of rotation for last six years without earning any interest and other commercial benefits. In that view of the matter the Commissioner Custom is directed to release 16 pieces of pure T.T. Bars each weighing 116.640 grams of foreign marking having total weight of 1866.240 grams valued at Rs. 7,54,916/- presently valued at Rs. 10,80,000 (Appx) in favour of the father of Petitioner No. 1 executing bond of Rs. 11,00,000/- with two sureties of the like amount each to the satisfaction of the Presiding Officer, Economic Offences. The Petitioners and his father will have to give an undertaking before the court concerned that in case the decision of this Court goes against him his bond shall be forfeited in favour of the Government of India and he shall have to make a deposit of money amounting to the value of gold of 1866.240 grams on the rate prevailing at that time.

Accordingly this application is disposed of.