In present petition, the petitioner has prayed that:- “11.A Issue a writ of Mandamus and/or any other appropriate writ, order or direction and direct the Respondent No.2 to release the container No.CRXU 3416751 to the petitioner forthwith.”
2. Heard Ms. Sheth, learned advocate for the petitioner, and Mr. Oza, learned Senior Counsel, appearing with Mrs. Nanavati, learned advocate for the respondent No.2.
3. The petitioner has preferred present petition on the understanding and perception that the respondent No.2 has seized petitioner's cargo. It is in view of such understanding and perception and the stand taken by the CFS that the petitioner has prayed for above quoted relief.
However, the petitioner has not joined the said CFS, who is a private party and seems to have been engaged on contract basis, as party respondent and any relief is not prayed for against it.
3.1 In response to the process issued by this Court, the respondent No.2 has appeared and clarified the position stating, inter alia, that the respondent No.2 has not seized the cargo. The respondent No.2 has also clarified that it has neither taken any action nor it has instructed anyone to take any action with regard to the cargo, which is subject matter of present petition.
The respondent No.2, in the reply affidavit dated 7.9.2012, stated, inter alia, that:-
“3.1 Baxed on the intelligence that a Shipping Bill bearing same No.6186115 date 09.11.2011 was filed by M/s D.G.Exports, 38, Functional Industries Estate, Patpargunj, Delhi under which goods “Fabricated Steel Structure Art” stuffed in contained CRXU 3416751 and cleared from ICD Tuklakabad was exported via Mundra port seemed to be fake as another shipping bill bearing same no. with date 11.11.2011 was also being shown in the system. On going through EDI system it was observed that the shipping bill dated 09.11.2011 was not in system and the same shipping No. and date 11.11.2011 was filed by Customs House Agent i.e. M/s. Skylark Cargo Services on behalf of M/s Global Medical India Pvt Ltd. Based on the above intelligence, the officers of Customs House, Mundra recalled the container CRXU 3416751 for examination of the goods stuffed and the same was returned back and placed in the premises of M/s MICT CFS, Mundra on 22.12.2011. The said container CRXU 3416751 was opened for examination of the goods on 23.12.2011 in presence of two independent Panchas, Operation Executive of M/s,. Trans Asian Shipping Services (P) Ltd., Gandhidham and Shri Chetan Mahendra Shah, General Manager of M/s. MICT CFS, Mundra under panchnama dated 23.12.2011. During panchnama, the said container was de-stuffed and it was found that wooden logs of “Red sanders” wrapped with jute cloth were stuffed in the said container instead of goods viz “fabricated steel structure Art”.
Since export of Red Sanders logs is prohibited under the provisions of the Customs Act, 1962, the entire cargo of 292 logs of “Red Sanders Wood” were placed under seizure along with packing material like jute cloths under Panchnama dated 23.12.2011 and handed over the same to General Manger of M/s MICT CFS, Mundra for safe custody under supratnama dated 23.12.2011. A case has been book against the exporter viz. M/s D.G.Exports, New Delhi and investigation of the case is under process.
3.2 It is submitted that the assertion of fact made by the petitioner that, the container containing cargo came back at Mundra on 17.12.2011 which has been seized by the office of the respondent No.2 and thereupon kept the container containing he cargo in their custody till the date, is incorrect. It is submitted that based on intelligence that shipping bill pertaining to the cargo so stuffed in th container No.CRXU 3416751 is fake and to verify the facts, this office has called back the said container and placed at MICT CFS on 22.12.2011. The cargo was de-stuffed by the officer of Customs on 23.12.2011 from the container and seized th cargo vide Panchnama dated 23.12.2011. The seized cargo was handed over to MICT CFS for safe custody vide Supratnama dated 23.12.2011. It is pertinent to point out that the container was no seized by the Customs officer and only the goods (cargo) were seized. It is further submitted that the office of the respondent No.2 has seized only the cargo de-stuffed from the container and not seized the container, and therefore, question of release of th container does not arise. Therefore, the responsibility of releasing of empty container lies with CFS and not with the answering respondent. A copy of Panchnama dated 23.12.2011 and Supratnama dated 23.12.2011 is annexed hereto and marked as ANNEXURE R-1.
4. In the above set of facts, it is respectfully submitted that the contentions raised by the petitioner are de-void of merit. The answering respondent is not concerned much less responsible for release of empty container lying in the premises of CFS. Therefore, the petitioner is not entitled for any relief whatsoever as prayed in terms of para 11[A to [D] of the memo of petition.”
4. In view of such reply affidavit by respondent No.2, the situation so far as the respondent No.2 is concerned, has become clear, and there is no justification or need for issuing any order against the respondent No.2.
Any other party is not impleaded in present petition nor any relief is prayed for against any other respondent and that therefore, in view of the reply affidavit filed by the respondent No.2, the cause for present petition does not survive and the same stands addressed by the details mentioned by the respondent No.2 in the reply affidavit.
4.1 Therefore, without any other direction and/or observation and/or clarification qua said respondent No.2, present petition is disposed of in light of the reply affidavit dated 7.9.2012 made by the respondent No.2.
The petition stands disposed of accordingly. Notice is discharged.
(K.M.Thaker, J.) kdc