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2015 DIGILAW 150 (KER)

Bangantavida Nazir v. Inspector of Customs

2015-02-11

P.R.RAMACHANDRA MENON

body2015
JUDGMENT : P.R. Ramachandra Menon, J. 1. Whether the respondents (authorities under the Customs Act) are justified in detaining the Passport of the petitioner, pending investigation as to the alleged smuggling, is the point to be considered in this case. The petitioner is the holder of Indian Passport bearing No. I. 9526176, who is stated as doing business of interior decoration in the U.A.E. It is stated that the petitioner's family is settled in Dubai and there are three school going children. When the petitioner reached India from Dubai through the International Airport at Kochi on 30.10.2014 the checked-in-baggage of the petitioner was intercepted and some home appliances brought by the petitioner (electric rice cooker and electric hot plate) were seized stating that they contained silver coloured metallic object weighing 3.5 kg., in which presence of gold was suspected. Petitioner went back on the same day and subsequently, he came to be arrested on return, at the Airport on 14.11.2014 as evident from Ext. P1 arrest memo issued by the first respondent/Inspector of Customs. The petitioner moved the third respondent/Deputy Commissioner of Customs and was released on bail, subject to conditions, as per Ext. P3 order dated the same day. Since one of the conditions imposed while granting the bail was to surrender the Passport, the petitioner was compelled to surrender the same before the third respondent/Deputy Commissioner so as to have an exit, after satisfying the other requirements. 2. According to the petitioner, he has not committed any offence, nor has he got any criminal background and is not involved in any case so far. The concerned home appliances were purchased through his driver in Dubai and the petitioner was not having any idea as to the metallic alloy contained in the above appliances. It is also pointed out that the presence of gold is not established and that no case is registered against the petitioner so far. Detention of passport in the said circumstance is absolutely without any legal or factual basis and that the same has quite adversely affected the rights and interests of the petitioner in traveling abroad. It is stated that the presence of the petitioner is very much necessary at his business place and that one of his three school going children is sick and hospitalised. It is stated that the presence of the petitioner is very much necessary at his business place and that one of his three school going children is sick and hospitalised. Since the petitioner stands prevented from going abroad, much hardships are being caused to the members of his family, who find it extremely difficult to meet the day to-day requirements. It is further stated that because of continuous absence from the place of business, huge loss has already been resulted. 3. Pointing out the facts and circumstances, the petitioner approached the third respondent/Dy. Commissioner by filing Ext. P5 representation for modifying the conditions in Ext. P3 and to return the Passport. As this did not yield any positive result, the petitioner was constrained to approach this Court by filing W.P.(C)No.32496 of 2014, challenging the authority of the concerned respondent to detain Passport. A contention was raised form the part of the respondents to the effect that they were entitled to do so, by virtue of the mandate under S. 110(3) of the Customs Act. As per the said provision, a proper officer may seize any document or things, which in his opinion will be useful for or relevant to any proceedings under the Act. After hearing both the sides, the said Writ Petition was disposed of as per Ext. P6 judgment, directing the Customs Authorities to state the reasons for retaining the Passport in terms of S. 110(3) of the Customs Act and if it does not require for any proceedings under the Customs Act, to have it returned to the petitioner forthwith, making it clear that decision shall be taken within one week from the date of receipt of a copy of the said judgment. 4. Pursuant to the above verdict, the matter was considered by the third respondent, who passed Ext. P7 order dated 17.12.2014 alleging that the petitioner was found actively involved in smuggling of gold to India as a part of big racket, the key players of which were still at large and hence that retaining of the passport was the only manner in which the petitioner's continuous presence within the country and co-operation with the investigating officer could be ensured. It was declined to release the passport till completion of the investigation and this in turn is under challenge in this Writ Petition. 5. It was declined to release the passport till completion of the investigation and this in turn is under challenge in this Writ Petition. 5. A counter affidavit has been filed on behalf of the respondents, referring to the sequence of events. It is stated that, immediately after the seizure on 30.10.2014, the petitioner left India to Dubai on the same day itself, to avoid further procedure in the matter. It is stated that the petitioner and one of his aids had contacted the officers of the Department to enquire about the possibility of releasing the detained goods. It was only on getting some false information that it might be released to the petitioner, that the petitioner came back to India on 13.11.2014. On his arrival at the airport, samples of the suspected items were taken under a Mahazar prepared in presence of the petitioner and two independent witnesses and sent to the chemical examiner, Customs House, Kochi, who, after examination, reported on the same date, that the samples were qualitatively analysed and confirmed the presence of gold in it and further that percentage of the gold will be reported later. 6. As per the subsequent proceedings, four samples were reportedly containing gold to an extent of at 48.3%, 47.4%, 48.59% and 50.53%; thus revealing a total estimated quantity of gold as approximately 1.7 Kg. It was in the said circumstance, that the petitioner was arrested on the next day, as per Ext. P1, intending to proceed with further steps by way of penal action under S. 112 of the Customs Act and in respect of the commission of offence punishable under S. 132 and 135 of the Act. It is also pointed out in the said statement that several persons as named in the statement were involved in the racket, engaged in smuggling of gold to India and that the said persons have not appeared till date. A statement has already been recorded from the petitioner under S.108 of the Customs Act and a statement has been taken from one of his aids by name Abdulla on 21.11.2014. 7. Searches have been conducted in the residence of the petitioner, Abdulla, Anaz, Jaison, Alim and Ajim by the Customs Preventive Commissionerate at Kannur and Kochi on 18.11.2014 and 20.11.2014 followed by issuance of summons under S. 108 of the Customs Act and asking them to appear. 7. Searches have been conducted in the residence of the petitioner, Abdulla, Anaz, Jaison, Alim and Ajim by the Customs Preventive Commissionerate at Kannur and Kochi on 18.11.2014 and 20.11.2014 followed by issuance of summons under S. 108 of the Customs Act and asking them to appear. Summons sent to the persons by name Anaz, Jaison, Alim and Ajim have not evoked any response and they are still to appear. It is stated that the petitioner is having deep relation with other suspects and two among the suspects, viz., Alim @ Abdul Halim and Anaz @ Anazeer were accused in the cases investigated by the National Investigating Agencies - Kalamassery Bus burning case. It is stated that the passport was caused to be surrendered as part of the condition for granting bail, which is well within the four walls of law. It is also pointed out that the authorities are having power under S. 110(3) of the Act to detain Passport and the legal position stands declared by two Division Benches of this Court as per decisions in Santha Kumar v. Collector of Customs ( 1989 (2) KLT 881 ) and Thomas v. Union of India ( 1989 (2) KLT 292 ). The factual position stands discussed in detail in Ext. P7 order passed in furtherance to Ext. P6 judgment and that the same is stated as not assailable under any circumstance. 8. After hearing both the sides, this Court finds that the authority vested with the Customs to detain passport under S. 110(3) no longer remains res Integra, in view of the declaration of law by the two Division Benches of this Court, as mentioned above. It has been categorically held by the Bench that passport is very much a document, which could be held as useful or relevant in connection with the proceedings under the Act, as envisaged under S. 110(3) of the Act. This being the position, it cannot be said that the act/course pursued by the respondents in causing the passport to be detained is without any authority. 9. The point to be considered is whether such detention is necessary in the instant case, to have had incorporated as a condition in Ext. P3 order while granting the bail; more so, when it is stated as effected only to facilitate co-operation of the petitioner and to ensure availability of the petitioner for completing the investigation. 9. The point to be considered is whether such detention is necessary in the instant case, to have had incorporated as a condition in Ext. P3 order while granting the bail; more so, when it is stated as effected only to facilitate co-operation of the petitioner and to ensure availability of the petitioner for completing the investigation. The petitioner's version that he is not involved in any other crime and has no criminal background is not sought to be rebutted from the part of the respondents with reference to any specific incriminating instance. It has also come on record that investigation is still to-be completed and no case has been registered against the petitioner. Since the proceedings are only in the preliminary stage, whether the petitioner should be detained preventing him from pursuing his business abroad and meeting the family who are stated as settled in Dubai. 10. The learned Counsel for the petitioner points out that the petitioner is ready to co-operate with the investigation and has been appearing before the second respondent, as ordered in Ext. P3 order; adding that he is ready to appear on any day in connection with the investigation or further steps, as and when required. It is also pointed out that, if the petitioner does not honour the commitment, it is always open for the respondents to take further steps to cause the bail to be cancelled and also to move the appropriate authority for impounding the passport or for cancellation of VISA and to have the petitioner deported. It is further stated that, other appropriate conditions could be imposed, if necessary, and that the right to travel abroad might not be wrongfully prevented. 11. Right to travel abroad flows from the expression 'personal liberty' in Article 21 of the Constitution of India, which expression, as explained by the Apex Court in the celebrated decision in Maneka Gandhi v. Union of India ( AIR 1978 SC 597 -7 member Bench) is of the widest amplitude and it covers a variety of rights, which goes to constitute the personal liberty of man and some of them have been raised to the status of a distinct fundamental right, giving additional protection under Article 19. As observed by the Apex Court, no person can be deprived of his right to go abroad, unless there is a law made by the State, prescribing the procedure so depriving him and that deprivation is effected strictly in accordance with such procedure, which cannot be arbitrary, unfair or unreasonable. 12. Coming back to the case in hand, even according to the respondents, detention of the passport of the petitioner, incorporated as one of the conditions in Ext. P3 order granting bail, is only to ensure availability of the petitioner till the investigation is completed. This can be ensured by such other means or measures as well. Detention of the passport virtually disables the petitioner from pursuing his business and earning his living, apart from adversely affecting his right to meet the family, who are settled at Dubai. In the said circumstance, this Court finds that the passport could be caused to be released subject to furnishing adequate security, either in the form of immovable property or Bank Guarantee to the satisfaction of the respondents, till the proceedings are finalised. The respondents are directed to quantify the probable liability which could be mulcted upon the petitioner by way of duty fine/penalty etc., if the petitioner is ultimately found guilty of me alleged offence. The same shall be let known to the petitioner within 'ten days'. It will be for the petitioner to satisfy the same, either by way of Bank Guarantee or by depositing the original of the Title Deeds in respect of the immovable property to the requisite extent, to the satisfaction of the respondents, upon which the passport shall be released to the petitioner forthwith. The petitioner shall co-operate with the investigation and shall make himself available, as and when summoned. The petitioner shall also serve his E-mail address to the respondents, which shall be kept unchanged till the proceedings are finalised. Any notice/summons to be issued by the respondents in the said E-mail address shall be deemed as proper and valid service for the purpose of the proceedings under the Act. It will be for the petitioner to check up the Mails everyday and the petitioner will not be heard to say that he was not aware of the communications sent through the E-mail. The Writ Petition stands disposed of.