Sri Dilip Kumar Dey v. Union of India — 1993 DIGILAW 425 (CAL)

JUDGMENT Ruma Pal, J. The petitioner claims to be an owner of 1400 kgs. of cinnamon, 20 kgs. cardamom and 17 kgs. 500 grams of raisin (referred to as the 'goods'). The goods were seized by the Customs Authorities on 19/20th July, 1992 at Kulpi Ghat, near Diamond Harbour. The petitioner has now filed this writ application praying for release of the seized goods on three grounds, namely- (i) Six months had expired since the seizure without any notice under s. 124 of the Customs Act, 1962 being served upon the petitioner. As such, by virtue of the provisions of s. 110(2) of the Act, the petitioner was entitled to the return of the goods; (ii) There was no proof that the goods were in fact of foreign origin. The goods were freely available in the Indian market. Reliance has been placed on two decisions, one of the Tribunal and one of the Collector of Customs (Appeal) which will be considered at the appropriate stage in this judgment; (iii) The respondents had pre-judged the issue. This is clear from the language used by the respondents in their affidavit. Therefore, the adjudication proceedings, if commenced, should not be allowed to continue; (iv) A copy of the show cause notice annexed with the affidavit-in-opposition does not show that it was addressed to the petitioner. In the space where the name of the addressee should have been given instead of the petitioner's name the words "as brief facts" appear. As such the show cause notice was invalid. 2. The respondents have controverted the submissions made by the petitioner and have stated that the show-cause notice had properly been issued to the petitioner on 11th January, 1993 before the expiry of the six-months period under s. 110(2) of the Act. The petitioner had in a representation to the respondents given two addresses, one of which was temporary and one of which was permanent. Copies of the show-cause notice had been sent to be to the addresses. The one sent to the temporary address had been returned with the endorsement "not known" and the one sent to the permanent address had been returned with the endorsement "not claimed". It is, therefore submitted that there was sufficient service within the period of the six months. Reliance has been placed upon various judgments which will be considered at an appropriate stage. 3. It is, therefore submitted that there was sufficient service within the period of the six months. Reliance has been placed upon various judgments which will be considered at an appropriate stage. 3. Secondly, it is submitted that there was sufficient materials before the respondent authorities for the purpose of seizing and retaining the goods and initiating the proceedings under s. 124 of the Act. It is stated that upon information received that applies were being carried into surreptitiously by a steamer, the goods were detained. The goods were packed in gunny sacks with foreign markings. The statements of the drivers and others taken under s. 108 of the Customs Act also show that the goods were loaded clandestinely in a brick-field. 4. Thirdly, it is submitted that the matter was under adjudication and the question relating to the ultimate decision on the issue would have to be decided finally by the Adjudicating Authority. 5. Finally, it is submitted that as far as the utilisation of the phrase "as brief facts" in the copy of the show-cause notice annexed with the affidavit was concerned, that was not a copy of the show-cause notice served on the petitioner but a copy of the show-cause notice made available to the counsel for the purpose of drafting of the affidavit-in-opposition. 6. Having heard the submissions of the respective parties, I am of the view that the writ application is unsustainable. It appears from the records which have been produced by the respondent-authorities that the show-cause notice was issued on 11th January, 1993 by the respondent authorities. There are two envelopes. One had been addressed to the petitioner at 53/4, P. K. Roy Chowdhury Lane, B. Garden, Howrah-3 and the second had been addressed to the petitioner at 6, Gangadhar Sen Lane, Calcutta-700 036. From the copy of the application submitted by the petitioner, both these addresses represent respectively the temporary and permanent addresses of the petitioner. According to the respondent authorities, they made enquiries at the so-called temporary address of the petitioner and found that the address, in fact, was that of a Nursery School and that there was only one person residing there with his family, who was an employee of a nationalised bank. Be that as it may, the addresses, to which the show-cause notices were sent, were claimed by the petitioner to be his addresses. Be that as it may, the addresses, to which the show-cause notices were sent, were claimed by the petitioner to be his addresses. He can have no grievance if the show-cause notices were sent there. The letters were sent by registered post with acknowledgement due. The acknowledgement receipt contains the stamp of the postal department and also a reference number. The reference number corresponds exactly with the reference number in the copy of the show-cause notice in the records. It also appears from the postal stamps that the letter was indeed posted on 11.1.93. There is nothing to doubt that the endorsements on the envelope were made by the postal peon. That the letters had been received back by the respondents are proved by the fact that the original envelopes had been produced from their custody. The endorsements on the letters show that the copy of the notice sent to the so-called temporary address returned with the endorsements "not found" and "not known". As far as the letter sent to the permanent address is concerned that has come back with the endorsement "not claimed". 7. It also appears that attempts were made by the postal authorities to effect service of the letter on 16.1.93, 17.1.93 and 19.1.93. All these attempts were within the period of six months from the date of seizure. 8. This court has consistently held that by virtue of the s. 153 of the Coustoms Act, 1962, read with s. 27 of the General Clauses Act, 1867, it was sufficient if the document is sent by registered post within the period of six months irrespective of the date of actual service for the purpose of s. 110(2) of the Act (See Jayantialal Morokhia vs. Union of India and Others, 82 CWN 270). As far as this court is concerned in an unreported decision in Civil Order No. 5838 dated 11.5.93 (Srii Anil Kumar Das vs. Union of India and Others), this court has held that the action of despatching the notice by registered post is sufficient service. There is no reason why this court should hold a different view in this case. Admittedly, the show-cause notice having been sent on 11.1.93, there is no scope for the operation of s. 110(2) of the Customs Act, 1962. 9. There is no reason why this court should hold a different view in this case. Admittedly, the show-cause notice having been sent on 11.1.93, there is no scope for the operation of s. 110(2) of the Customs Act, 1962. 9. The decisions cited by the petitioner reported in 1992 (2) ELT 19, 1991 (52) ELT 278 and order of the Collector dated 12.5.93 in Appeal from Order No. 143/41P dated 31.12.92 relate to the principles of natural justice are relevant to the adjudication proceedings. The decisions cited are, in my view not relevant for the purposes of determining what was service for the purpose of s. 110(2) so that the petitioner could be entitled as of right to return of seized goods under s.110(2) of the Act. There can be no gainsaying that service of notice must be made. If service is not made within 6 months from seizure the goods seized must be returned. If service is not made thereafter or at all the adjudication cannot stand. The object of impassing a six-month period for service of notice under s. 110(2) of the Act is not to ensure compliance with any principles of natural justice but for the purpose of expediting proceedings so as not to harass the citizens whose goods may have been wrongfully seized [See Anil Kumar Das vs. Union of India & Others (Supra)]. 10. The first submission of the writ petitioner is, therefore, negatived. 11. As far as the second submission of the writ petitioner is concerned, the decisions cited by the petitioner in the context (being the last two noted above) are not of any binding authority. In any event, neither of the decisions hold that merely because they are cloves or cinnamon, the goods cannot be detained under the Customs Act, 1962. In each of the cases the authority found that there was insufficient material but came to the conclusion that the cloves or cinnamon in question has been surreptitiously brought into the country. In this case only a show-cause notice has been issued. The time for proof is yet to come. The question, whether the department has discharged the onus, will be seen then. In this case only a show-cause notice has been issued. The time for proof is yet to come. The question, whether the department has discharged the onus, will be seen then. At this stage, the court will see whether there was any material whatsoever on the basis of which the show-cause notice should have been issued and whether the allegations contained in the show-cause notice if taken to be correct could sustain adjudication proceedings. From the scrutiny of the show-cause notice, it appears that there was some material before the authority and if the allegations in the show-cause notice are accepted, there can be no doubt that a case of surreptitious import of the goods would have been made out. However, this court is not expressing any view as to the merits of the matter. The question will have to be resolved by the adjudication authority ultimately on the basis of the evidence adduced. 12. I do not find any substance in the submissions that the respondent-authorities pre-judged the issue. Just as the affidavit-in-opposition cannot improve a show-cause notice which is otherwise bad, any affidavit-in-opposition cannot destroy or render defective, a show-cause which is otherwise good. In any event, the petitioner's case that the respondents have pre-judged the issue is based upon utilisation of the word "accommodated" in paragraph 6(d) of the affidavit and the utilisation of the word "left" in paragraph S(c) of the affidavit. The allegations in the affidavit, complained of by the petitioner, as disclosing the closed mind, is as follows: "The writ petitioner appeared to be an accommodated person claiming the ownership of the goods." 13. The uses of the word "appeared" would show that there was no finding but a prima facie, formation of opinion. The phrase, therefore, does not disclose a closed mind. The second sentence complained of by the petitioner is the sentence that show-cause notice was returned with the endorsement 'left, etc.'. According to the petitioner the endorsement did not show "left" but "not found" and "not claimed". 14. I do not see how one can assume that by using the word, "left", the respondents have disclosed a prejudiced mind. At the most, the deponent could be penalised for making an incorrect statement. Even then, in my view, the difference between "left" and "not claimed" or "not known" is not so drastic as to call down any penal consequences on the deponent. At the most, the deponent could be penalised for making an incorrect statement. Even then, in my view, the difference between "left" and "not claimed" or "not known" is not so drastic as to call down any penal consequences on the deponent. It may be noted that the respondents have voluntarily and immediately produced the entire records relating to the case before the court. If there had been any mala fide motive behind use of the word "left", this must be taken to have been displaced by annexing copies of the records to the affidavit-in-opposition which would show the correct position. 15. The last submission of the petitioner is that the copy of the show-cause notice annexed to the affidavit did not show that it was addressed to the petitioner. The copy of the show-cause notice addressed to the petitioner is still contained in the envelope. I have opened the envelope in court. The copy 'in the envelope clearly states that it was in fact addressed to the petitioner at his permanent address. Furthermore, the learned counsel appearing on behalf of the respondents has stated that the copy annexed with the affidavit shows that the copy was made available to him when he had asked for instructions for drafting the Affidavit-in-opposition. I have no reason to disbelieve the learned counsel. 16. All the four submissions of the writ petitioner having been rejected the writ application is dismissed. However, this will not preclude the petitioner from making an application before the concerned respondent authorities for provisional release of the goods. Such application, if made, must be disposed of by the concerned authority by a reason order. The concerned authority may, if he so thinks fit, allow the release of the seized goods upon such terms as he may think fit. Such decision, however, must be taken within a period of two weeks from the date of making of the application. Before passing any order on the application of the petitioner for provisional release, the concerned authority will give the petitioner or his authorised representative, an opportunity of being heard. At least 72 hours' clear notice must be given. If inspite of such notice the petitioner chooses not to be present, the concerned authority will be at liberty to pass an order ex parte. 17. At least 72 hours' clear notice must be given. If inspite of such notice the petitioner chooses not to be present, the concerned authority will be at liberty to pass an order ex parte. 17. As the show-cause notice was admittedly returned, not claimed by the petitioner and although "not claimed" may be good service in law, the fact remains that the petitioner would not be aware of the contents. Accordingly, the respondent-authorities are directed to make available a copy of the show-cause notice to the advocate on record for the petitioner in the course of tomorrow. Any documents relied upon by the respondents must also be annexed along with the show-cause notice to the petitioner. The petitioner will be at liberty to reply to the show-cause notice within a period of three weeks thereafter, that is, on 8th October, 1993. The matter will be heard and disposed of by the concerned authority by 10th December, 1993, or within such further time, as may be mutually agreed to between the parties. The concerned authority will give the petitioner an opportunity of being heard. If the statements of any witness is relied upon by the respondents, an opportunity of cross-examination of such witnesses be given to the petitioner. The petitioner must also make available copies of all documents sought to be relied upon by the petitioner to the respondents at least 48 hours prior to the hearing. At least 72 hours' clear notice must be given to the petitioner. Since there is some disputes relating to the petitioners' address, let a notice be also issued on the advocate on record for petitioner before the hearing. If inspite of such notice the petitioner does not either appear personally or through his representative, the adjudicating authority may decide the matter ex parte. 18. There will be no order as to costs. 19. Let xerox copies of this order be given to the learned advocate appearing for the parties on their usual undertakings. Application dismissed.