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2014 DIGILAW 3343 (ALL)

Aimr Jewels Pvt. Ltd. v. State of U. P.

2014-11-11

D.Y.CHANDRACHUD, P.K.S.BAGHEL

body2014
JUDGMENT Pradeep Kumar Singh Baghel, J. True copies of the counter affidavit and rejoinder affidavit filed today be taken on the record. 2. The relief, which has been sought, in these proceedings, under Article 226 of the Constitution, is for a writ of certiorari for quashing a seizure memo dated 30 August 2014 issued by the Inspector of Customs (Preventive) Division, Bareilly and for a writ of mandamus for the release of a quantity of 12 kgs of gold seized by the fifth respondent. In the alternate, the petitioner seeks a direction for the provisional release of the gold which has been seized under Section 110A of the Customs Act, 1962. The petitioner also seeks a direction to the second respondent for possession of a motor vehicle. 3. A counter affidavit has been filed in these proceedings by the Deputy Commissioner of Customs (Preventive), Bareilly, in which it has been stated that 12 kgs. of gold bars were found to have been illegally imported, and therefore, liable for confiscation under the Customs Act, 1962 ("the Act"). The gold was seized under a seizure memo dated 30 August 2014. The gold bars are stated to have been concealed in a specially fabricated cavity beneath the front seat of the motor vehicle. It has been stated that the officers of Customs obtained knowledge about the seizure of the gold bars from the Commercial Tax Department, Ghaziabad and by a letter dated 14 July 2014 addressed a communication to the petitioner. On 15 July 2014 and 16 July 2014, a team of Customs Officers proceeded to the Commercial Tax Department at Ghaziabad. However, none appeared on behalf of the petitioner. It has been stated that the goods and vehicle were seized under a seizure memo dated 31 August 2014. The case in the counter affidavit is that the chain of purchase in respect of the seized gold is at variance with the markings on the gold bars. On physical verification, it was found that the gold bars bear a Swiss origin as against the purchase which is claimed to be from UAE. Moreover, it has been submitted that summons have been issued from time to time, in spite of which the petitioner has not appeared. On physical verification, it was found that the gold bars bear a Swiss origin as against the purchase which is claimed to be from UAE. Moreover, it has been submitted that summons have been issued from time to time, in spite of which the petitioner has not appeared. The counter affidavit records that the serial numbers on the gold bars have been deliberately tampered or erased and that the gold which was recovered and seized on 30 August 2014 is not the gold of which the import is claimed. 4. It has also been stated in the counter affidavit that the petitioner has not applied for the provisional release under Section 110A of the Act. This averment is in response to the submission in paragraph 38 of the writ petition that though the fourth respondent has an ample power to release the gold under Section 110A of the Act, no order has been passed. The petitioner has relied on a representation at Annexure 20 dated 30 July 2014. 5. At this stage, the only prayer which can be considered by the Court is the alternate prayer for a direction that an order may be passed in accordance with law on an application for provisional release under Section 110A of the Act. Since a specific objection has been raised on behalf of the Customs Department that no formal application has been filed for provisional release under Section 110A of the Act, we permit the petitioner to move the competent authority by filing an application for provisional release under Section 110A of the Act. 6. On the basis of the facts which have emerged on the record, we are not inclined to grant any other relief in these proceedings under Article 226 of the Constitution. Hence, we permit the petitioner to move an application before the Deputy Commissioner, Customs (Preventive) Division, Bareilly, respondent no.4, for an order of provisional release under Section 110A of the Act. If such an application is filed, it shall be considered strictly in accordance with law and shall be disposed of expeditiously by the competent authority, preferably within a period of one month from the date of the receipt of the application. The petitioner would also be at liberty to move an application in accordance with the law for the release of the vehicle. 7. The petitioner would also be at liberty to move an application in accordance with the law for the release of the vehicle. 7. We clarify that we have not expressed any view on the merits of the claim which the petitioner seeks to move by way of the application. The petition is, accordingly, disposed of. There shall be no order as to costs.