IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.4094/2019 (T – CUS) BETWEEN :
ABDU SHAHEED KURCHIPALLA ABDULLA S/O KURCHIPALLA ABDULLA AGED ABOUT 35 YEARS R/AT NOORIYA MANZIL H.NO.MGP 18/388, NEAR KNH HOSPITAL, P.O. UPPALA, KASARAGOD DISTRICT-671 322 KERALA. ...PETITIONER (BY SRI ISMAIL M. MUSBA, ADV.) AND :
1. THE ADDITIONAL COMMISSIONER OF CUSTOMS, NEW CUSTOM HOUSE, PANAMBUR, MANGALURU-575 010.
2. THE DEPUTY COMMISSIONER OF CUSTOMS MANGALURU INTERNATIONAL AIRPORT KENJAR, BAJPE, MANGALORE-574 142.
3. THE COMMISSIONER OF CUSTOMS NEW CUSTOM HOUSE, PANAMBUR MANGALURU-575 010. …RESPONDENTS (BY SRI K.M.SHIVAYOGISWAMY, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 16.10.2018 PASSED BY THE R-1 WHEREIN THE R-1 HAS REFUSED TO GRANT UNCONDITIONAL RELEASE OF FOREIGN CURRENCY SEIZED FROM THE PETITIONER IN VIEW OF NON-COMPLIANCE OF SECTION 124(a) OF THE CUSTOMS ACT, 1962, PRODUCED AT ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has assailed the order dated 16.10.2018 passed by the respondent No.1 wherein the respondent No.1 has refused to grant unconditional release of foreign currency seized from the petitioner inter alia seeking a direction to the respondents to release the foreign currency in view of non compliance of Section 124(a) of the Customs Act, 1962 (for short ‘Act’).
2. The petitioner is claiming to be a resident of Uppala village, Kasargod District, Kerala, who was travelling to Dubai from Mangalore International Airport by Spice Jet Flight scheduled for departure on the morning of 2.3.2018. He was intercepted and arrested by the customs officers for the alleged offence under Section 135 of the Act on a charge of carrying foreign currency 24000 Pound Sterling equivalent to INR 21,18,000/- (Rupees Twenty one lakhs eighteen thousand) in contravention of the provisions of Section 113 of the Act. It is the contention of the petitioner that the petitioner being a bonafide passenger having valid Indian Passport and Visa of UAE was eligible to carry said foreign currency which remained unspent. The foreign currency was seized by the Additional Commissioner of Customs – respondent No.1 on 2.3.2018. After expiry of six months, the petitioner made a representation to the respondent No.1 to release the foreign currency seized unconditionally and the same has been rejected. Hence, this writ petition.
3. Learned counsel for the petitioner submitted that the information was sought under RTI Act 2005 inasmuch as the issuance of show cause notice as per Section 124(a) of the Act and the same was answered with a show cause notice. Notice is required to be issued to a passenger within six months of seizure as per Section 124(a) of the Act. On further enquiry sought through RTI Act regarding the mode of service, the same was indicated that the show cause notice was served upon the passenger-petitioner by affixing the same on main gate of the premises at the address mentioned in the passport of the passenger under mahazar dated 30.8.18 in terms of the provisions of Section 153(1)(e) of the Act. Learned counsel argued that indeed no such affixture of notice was made as contended by the authorities. It is alleged that Mahazar is also a sham document created to bring the show cause notice within the period of six months in order to harass the petitioner.
4. Learned counsel for the Revenue submitted that originally show cause notice was issued on 29.8.2018 and the same was dispatched through speed post. The same was returned unserved. Hence, the notice was affixed on the main gate of the premises at the address mentioned in the passport of the petitioner. Drawing the mahazar in terms of section 153(1)(e) of the Act is in compliance of the provisions of the Act. Pursuant to the same, show cause notice has been issued for adjudication of the matter and the petitioner has appeared and sought time. Original record is placed before the court to substantiate his arguments.
5. Section 124(a) of the Act contemplates for issue of show cause notice before confiscation of goods etc., Section 110 of the Act deals with seizure of goods, documents and things. Sub-Section(2) of Section 110 envisages that where any goods are seized under sub- section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Modes for service of notice are provided under Section 153 of the Act. Clause (b) of Section 153(1) provides, by a registered post or speed post or courier with acknowledgement due, delivered to the person for whom it is issued or to his authorized representative, if any, at his last known place of business or residence. As per Clause(e), by affixing it in some conspicuous place at the last known place of business or residence of the person to whom it is issued and if such mode is not practicable for any reason, then, by affixing a copy thereof on the notice board of the office or uploading on the official website, if any; The notice was issued and the same was sent through speed post on 29.8.2018 but the same was returned unserved. Hence, the other mode prescribed under clause(e) of sub-section (1) of Section 153 has been exercised by affixing it on the conspicuous place of the residence of the petitioner. Mahazar is also drawn to the said effect. In such circumstances, no exception can be found with the issue and service of notice on the petitioner. It is also significant to note that the phrase ‘given’ employed in sub-section(2) of Section 110 under clause (a) of Section 124 within six months of the seizure of the goods does not refer to service of notice. However, as aforesaid, there is sufficient service of notice as contemplated under Section 153 of the Act. Hence, the petitioner cannot raise any dispute relating to failure to issue show cause notice as contemplated under the Act.
6. It is pertinent to note that the respondent- authorities have now issued the show cause notice for adjudication of the matter in accordance with law. The petitioner has already appeared before the authorities. In such circumstances, the petitioner is at liberty to raise all the grounds before the adjudicating authority inasmuch as the genuineness of the goods/foreign currency carried with him at the time of the seizure. Keeping open all the rights and contentions of the parties, the writ petition stands disposed of directing the adjudicating authority to consider the objections to be filed by the petitioner and take a decision in accordance with law in an expedite manner, in any event, within a period of four weeks from the date of filing of reply/objections.
With the aforesaid observations and directions, writ petition stands disposed of.
Dvr:
Sd/- JUDGE