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2020 DIGILAW 620 (GAU)

Lalzawmliani v. Union Of India

2020-07-17

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Lalfakawma, learned counsel for the petitioners in all the cases. Ms. Zairemsangpuii, learned CGC appears for the respondent Nos. 1, 2, 3 & 8. Mrs. Dorothty Lalrinchhani for respondent No. 4 and Mr. C. Zoramchhana, the Addl. Advocate General, Mizoram for respondent Nos. 5 & 6 in WP(C) No. 6/2020 and WP(C) No. 7/2020. Ms. Zairemsangpuii appears for respondents Nos. 1 to 4 in WP(C) No. 11/2020 and WP(C) No. 12/2020. 2. These four cases are being disposed of by a common order inasmuch as, the issues in all the cases are similar. After hearing the learned counsels for the parties for some length, this Court is of the view that the Assistant Commissioner, Customs Division, Aizawl has to be impleaded as a party in WP(C) No. 11/2020 and WP(C) No. 12/2020. Accordingly, on the oral prayer made by the petitioners'' counsel, the Assistant Commissioner, Customs Division, Aizawl is impleaded as respondent No. 5 in WP(C) No. 11/2020 and WP(C) No. 12/2020. Registry shall make necessary correction to the Cause Title in WP(C) Nos. 11/2020 and 12/2020. wxyz Mrs. Dorothy Lalrinchhani submits that she accepts notice on behalf of the newly impleaded respondent No. 5 and that as the issues in all the writ petitions are similar, the stand of the Customs Department made in their affidavit filed in WP(C) No. 6/2020 can also be relied upon in the other cases, i.e., WP(C) No. 7/2020, WP(C) No. 11/2020 and WP(C) No. 12/2020. Though no affidavits have been filed by the respondents in WP(C) No. 11/2020 and WP(C) No. 12/2020, this Court is disposing of all the cases based on the affidavits filed by the parties in WP(C) No. 6/2020. zyxw 3. The petitioners'' grievance in all the writ petitions is with regard to the detention of areca nuts (betel nuts)/ black pepper at the outskirts of Aizawl (Zemabawk), Dulte village, Khawzawl district and Vaphai village, by the Assam Rifles, which were being transported by Trucks from Champhai to Aizawl, Bilkhawthlir, Kalain and Silchar. 4. zyxw 3. The petitioners'' grievance in all the writ petitions is with regard to the detention of areca nuts (betel nuts)/ black pepper at the outskirts of Aizawl (Zemabawk), Dulte village, Khawzawl district and Vaphai village, by the Assam Rifles, which were being transported by Trucks from Champhai to Aizawl, Bilkhawthlir, Kalain and Silchar. 4. In WP(C) No. 6/2020, 130 bags of areca nuts which was being transported by vehicle bearing Registration No. NL 01 N-2627 had been detained on 27.11.2019 by the 46th Assam Rifles Battalion, while in WP(C) No. 7/2020, 400 (four hundred) bags of areca nuts, which were being transported in vehicles bearing Registration No. MZ 05 A-1197 and AS 01-KC 6846 had been detained by the 46th Assam Rifles Battalion on 05.01.2020. In WP(C) No. 11/2020, 440 bags of areca nuts, which were to be transported by vehicles bearing Registration No. MZ-04-A-0060 and AS-11-DC-0690 had been detained by the 8th Assam Rifles Battalion on 17.01.2020, while in WP(C) No. 12/2020, 53 bags of areca nuts and 150 bags of black pepper, which were being transported by vehicle No. MZ-04-A-1231 had been detained by the 8th Assam Rifles Battalion. The petitioners'' case in WP(C) No. 6/2020 is that the areca nuts had been bought from M/s Anuni Store, Kahrawt veng, Champhai. In WP(C) No. 7/2020, the petitioners'' case was that the areca nuts had been bought from M/s Sawmi Store located at Champhai Zote. The petitioners'' case in WP(C) No. 11/2020 was that the areca nuts had been bought by the petitioner from Vaphai village, Champhai district, while in WP(C) No. 12/2020, the petitioners'' case was that he had bought the areca nuts and black pepper from Vaphai village, Champhai district. 5. The petitioners'' counsel submits that the Assam Rifles have detained the trucks and areca nuts/black pepper, without issuing any seizure memo to the petitioners, on the suspicion that the seized goods were smuggled goods. Also, no further action had been taken by the Assam Rifles with regard to verifying/investigating whether the detained goods were smuggled goods. The petitioners'' counsel submits that in a similar case, i.e., WP(C) No. 174/2019, which was disposed of by this Court vide its Judgment & Order dated 11.12.2019, the Assam Rifles were directed to release the vehicles and the areca nuts to the owners therein. 6. The petitioners'' counsel submits that in a similar case, i.e., WP(C) No. 174/2019, which was disposed of by this Court vide its Judgment & Order dated 11.12.2019, the Assam Rifles were directed to release the vehicles and the areca nuts to the owners therein. 6. The petitioners'' counsel further submits that as per the provisions of the Assam Rifles Act, 2006 and the Assam Rifles Rules, 2010, the Assam Rifles are to carry out counter insurgency operations in specified areas and to act in aid of civil authorities for the maintenance of law and order and matters connected therein. He submits that even if the Assam Rifles were given the power to prevent smuggling, their duty was to be confined to the international border only. He also submits that the Assam Rifles have no authority to detain the goods and vehicles without having any proof that they were smuggled goods. The petitioners'' counsel submits that as there has been illegal detention of the petitioners'' goods and trucks for a long time, which has caused them immense financial loss, the goods and trucks should be released immediately. The petitioners'' counsel also submits that the Union of India/Assam Rifles are liable to pay damages to the petitioners. He also prays that the respondent No. 3 should give a report on the status of the detained goods and vehicles, as on date. 7. Ms. Zairemsangpuii, learned CGC submits that as per Section 4 of Assam Rifles Act, 2006 read with Rule 8 of the Assam Rifles Rules, 2010, the Assam Rifles have the power to prevent trans-border smuggling and to curb any other illegal activity. She also submits that the Assam Rifles had been requested to keep strict vigil at Indo-Myanmar border and take necessary action to curb the smuggling of betel nuts through Indo-Myanmar Border (IMB), vide Letter No. 01/10/2019-BM-2 dated 10.07.2019, issued by the Under Secretary to the Govt. of India, Ministry of Home Affairs, Department of Border Management, BM-1 Division. The learned CGC also submits that at the time of checking of the trucks, the petitioners could not produce any receipts showing that the areca nuts and black pepper had been purchased from Champhai district. Further, the persons who came forward to claim ownership of the vehicles carrying the areca nuts/black pepper were not the registered owners of the vehicles. The learned CGC also submits that at the time of checking of the trucks, the petitioners could not produce any receipts showing that the areca nuts and black pepper had been purchased from Champhai district. Further, the persons who came forward to claim ownership of the vehicles carrying the areca nuts/black pepper were not the registered owners of the vehicles. She also submits that soon after the goods and vehicles carrying them had been detained, the Assam Rifles had written letters to the Customs Department and to the Officer-in-Charge, Bawngkawn Police Station, to take over the detained goods/vehicles and issue seizure memos. However, the Customs Department and the Police have not taken any action in this regard till date. The CGC also submits that receipt dated 15.04.2019, issued by Anuni Store is without any number and that the GST Registration certificates of the respondent No. 7 in WP(C) No. 6/2020 and WP(C) No. 7/2020 shows that there is no outer validity period. The learned CGC thus submits that even though the areca nuts/black pepper are smuggled goods, no assistance has been provided by the Customs Department or the Police to the Assam Rifles, for further investigation and taking action as per law. 8. The learned CGC also submits that as per the receipts issued for the purchase of the areca nuts, the same shows that areca nuts had been sold at the rate of Rs. 130 per kilogram. However, as per the Notification No. 10/2015 - 2020 dated 08.06.2015 issued by the Director General of Foreign Trade, Ministry of Commerce & Industries, Department of Commerce, Govt. of India, the CIF value of areca nuts under the Exim Codes of Chapter 8 of ITC (HS), 2012 under Schedule-1 (Import Policy) is Rs. 162 per kilogram. The above clearly shows that the detained areca nuts could only be smuggled goods as areca nuts cannot be sold in the State of Mizoram for less than Rs. 162 per kg. She also submits that the detained black pepper is smuggled goods. 9. Mr. C. Zoramchhana, learned Addl. Advocate General, appearing for the respondent Nos. 162 per kilogram. The above clearly shows that the detained areca nuts could only be smuggled goods as areca nuts cannot be sold in the State of Mizoram for less than Rs. 162 per kg. She also submits that the detained black pepper is smuggled goods. 9. Mr. C. Zoramchhana, learned Addl. Advocate General, appearing for the respondent Nos. 5 & 6, submits that though the Assam Rifles have taken a stand that they had written letters to the O.C Bawngkawn Police Station to take over the case from the Assam Rifles, with regard to the detention of the areca nuts/black pepper and the vehicles, the Bawngkawn Police Station have not received any such letter/s till date. He submits that if any such letter/s had been received from the Assam Rifles, the same would have been reflected in the General Diary (GD), as all communication/entries are recorded therein. As such, there was no question of the Mizoram Police taking over the case from the Assam Rifles. 10. Mrs. Dorothy Lalrinchhani, the learned counsel appearing for the Customs Department, i.e., the respondent No. 4 submits that the Assam Rifles had intimated the Customs Office with regard to the seized areca nuts and vehicles and requested them to take over the said seized goods and vehicles. In response to the Assam Rifles letters, the Customs Department had written letter/s to the 46th Assam Rifles stating that as the Assam Rifles had stated that the goods were being transported from Champhai and within the State of Mizoram, the matter was to be pursued by the Assam Rifles. Further, as per Section 123 of the Customs Act, 1962, burden of proof that certain goods are not illegal/smuggled goods, as specified by the Central Government by notification in the official Gazette, lies with the possessor/owner of the goods. However, for the present detained goods, the burden of proof that it was illegal/smuggled goods lies with the detaining/seizing officer. The Customs Department thus informed the 46th Assam Rifles that as they had detained the goods, it was their burden to prove that the detained goods were smuggled goods. The Assam Rifles were thus requested to provide concrete evidence that the detained goods were smuggled goods, prior to the Customs Department taking any action on the detained areca nuts. The Customs Department thus informed the 46th Assam Rifles that as they had detained the goods, it was their burden to prove that the detained goods were smuggled goods. The Assam Rifles were thus requested to provide concrete evidence that the detained goods were smuggled goods, prior to the Customs Department taking any action on the detained areca nuts. The learned counsel for the Customs Department thus submits that as the Assam Rifles had not been able to produce any proof that the detained goods were smuggled goods, the Customs Department could not take over possession of the detained goods/trucks. 11. I have heard the learned counsels for the parties. 12. The short question involved is whether the detained goods are smuggled goods or not. With regard to the detention of the vehicles, it is clear that the Assam Rifles have not taken the stand that the detained vehicles are smuggled vehicles. Section 4 of the Assam Rifles Act, 2006 provides that the Assam Rifles has been established to carry out counter insurgency operations in specified areas and to act in aid of civil authorities for the maintenance of law and order and matters connected therein. Rule 8(1)(ii) of the Assam Rifles Rules, 2010 provides that the Assam Rifles also have the power to prevent smuggling and any other illegal activity in the border areas. Section 4 of The Assam Rifles Act, 2006 states as follows:- wxyz "4. Constitution of Force.- zyxw wxyz (1) There shall be an armed force of the Union called the Assam Rifles for ensuring the security of the borders of India, to carry out counter insurgency operations in the specified areas and to act in aid of civil authorities for the maintenance of law and order and the matters connected therewith. Constitution of Force.- zyxw wxyz (1) There shall be an armed force of the Union called the Assam Rifles for ensuring the security of the borders of India, to carry out counter insurgency operations in the specified areas and to act in aid of civil authorities for the maintenance of law and order and the matters connected therewith. zyxw wxyz (2) Subject to the provisions of this Act, the Force shall be reconstituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed." zyxw wxyz Rule 8(1) of The Assam Rifles Rules, 2010 states as follows:- zyxw wxyz "8.(1) The task of the Force and command and control thereto.-(1) For the purpose of sub-section (1) of Section 4, the Force shall.- zyxw wxyz (i) safeguard the security of borders of India and promote sense of security among the people living in border areas; zyxw wxyz (ii) prevent trans-border crimes, smuggling, unauthorised entry into or exit from the territory of India nad any other illegal activity; zyxw wxyz (iii) provide security to sensitive installations, banks, persons of security risk; zyxw wxyz (iv) restore and preserve order in any area in the event of disturbance therein." zyxw wxyz A perusal of Rule 8(1)(ii) shows that the Assam Rifles can prevent smuggling by acting in aid of civil authorities. In the present case, the detention of the alleged smuggled goods has been made by the Assam Rifles, not in the border areas, but in the outskirts of Aizawl Municipal Area, Dulte village and Vaphai village. The stand taken by the State Government and the Customs Department clearly show that no case has been registered against the petitioners even though more than 6 months have elapsed from the date of detention of the goods and trucks. The Assam Rifles should have released the goods and vehicles in the absence of any case being registered against the petitioners by any of the respondents till date. zyxw wxyz However, for reasons best known to the Assam Rifles, they have not taken any further steps after detaining the goods and vehicles, which is per se illegal. zyxw wxyz In WP(C) No. 174/2019, this Court vide Order dated 11.12.2019 has held in para 9 as follows:- zyxw wxyz "9. The Apex Court in the case of Tulsiram Patel & Ors. zyxw wxyz In WP(C) No. 174/2019, this Court vide Order dated 11.12.2019 has held in para 9 as follows:- zyxw wxyz "9. The Apex Court in the case of Tulsiram Patel & Ors. (Supra) has held that there cannot be an exercise of power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The Assam Rifles Act, 2006 and the Assam Rifles Rules, 2010 no doubt provides for certain provisions more particularly with regard to the constitution of the force, the command and control but the fact remains that the organization is to act in aid of the civil authorities for maintenance of law and order and the matters connected therewith, but not independently on its own. From the affidavit filed by the respondent authorities, it is not discernable as to what precisely has been violated by the petitioner so as to warrant the seizure of the vehicles and goods. Therefore, in absence of any such violation, I find no reasons as to why the goods should be withheld by the respondent authorities. The respondent authorities no doubt have made their communication to the Police authorities, the Customs and even to the Chief Secretary of the State since no follow up action have been taken by the State authorities, the Assam Rifles authorities on its own under the facts and circumstances cannot be justified for withholding the seized goods and vehicles. Accordingly, without entering into any other aspects and upon considering the response made by the respondent authorities, this Court directs the respondent authorities to release the vehicles along with the areca nuts to the petitioners." zyxw wxyz To prevent smuggling, the Assam Rifles have the power to act in terms of Rule 8(1)(ii) of the Assam Rifles Rules, 2010 read with Section 4(1) of The Assam Rifles Act, 2006. The Assam Rifles Act and Rules has not provided the Assam Rifles with any investigative powers for the purpose of proving the goods to be smuggled goods. The Assam Rifles also does not have any power to impose penalties on smuggled goods or indefinitely detain goods without registering any case with the competent authority or the Courts. The Assam Rifles Act and Rules has not provided the Assam Rifles with any investigative powers for the purpose of proving the goods to be smuggled goods. The Assam Rifles also does not have any power to impose penalties on smuggled goods or indefinitely detain goods without registering any case with the competent authority or the Courts. The Customs Act, 1962 is however a complete Code in itself and gives power to the Customs officials to take up investigation with regard to whether any goods is smuggled goods and the penalties to be imposed thereupon. The affidavit of the State Government however shows that they have not received any letter/s from the Assam Rifles with regard to the detained areca nuts and the vehicles. zyxw 13. Section 123 of the Customs Act, 1962 states as follows:- wxyz "123. Burden of proof in certain cases.--- [(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving they are not smuggled goods shall be- zyxw wxyz (a) in a case where such seizure is made from the possession of any person,--- zyxw wxyz (i) on the person from whose possession the goods were seized; and zyxw wxyz (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; zyxw wxyz (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] zyxw wxyz (2) This section shall apply to gold [and manufactures thereof], watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify." zyxw 14. In the present cases, the stand of the Assam Rifles that the areca nuts, being placed below the coal bags in the trucks implies that the areca nuts are smuggled goods is speculative and subjective. The placing of areca nuts below or above the coal bags does not prove that either of the two are smuggled goods. Assuming the coal bags were placed below the areca nuts, would the same imply that coal was smuggled goods. The placing of areca nuts below or above the coal bags does not prove that either of the two are smuggled goods. Assuming the coal bags were placed below the areca nuts, would the same imply that coal was smuggled goods. The stand of the CGC that the purchase receipt issued by Anuni store is without any number and that there is no validity period of the GST registration certificate of the respondent No. 7 is neither here nor there, vis- -vis the question whether the detained areca nuts are smuggled goods. The question regarding ownership of the vehicles also has nothing to do with whether the detained areca nuts and black pepper are smuggled goods. The Home Ministry letter dated 10.07.2019, read with Rule 8 of the Assam Rifles Rules shows that the role of the Assam Rifles includes the prevention of transborder smuggling. Thus, while the Assam Rifles have the power to prevent transborder smuggling, their action has to be done within the four corners of the law. wxyz The Assam Rifles must understand that they are not the Police or the Customs Department and that they have to act in aid of the civil authorities. They cannot indefintely detain goods without any further action being processed for the same as per law, if the goods are assumed to be smuggled goods. The above being said, the Assam Rifles have not produced any evidence before this Court to show that the detained goods are smuggled goods, except to state that they are smuggled goods. The Assam Rifles have not issued any seizure memo to the petitioners with regard to the detained goods and the detained vehicles. It appears that neither the Customs Department and the Police are also willing to take up the investigation of the case, for reasons mentioned in the aforementioned paragraphs. It is clear that if the Assam Rifles are not able to prove that the detained goods are smuggled goods, the same has to be given back to the persons, who claim ownership of the same, unless there is a dispute to the ownership of the detained goods. In the present case, neither has the Assam Rifles lodged any FIR, given any seizure memo or registered any case or approached the Court with regard to the above detained goods. Despite the above, the Assam Rifles have detained the petitioners goods indefinitely. In the present case, neither has the Assam Rifles lodged any FIR, given any seizure memo or registered any case or approached the Court with regard to the above detained goods. Despite the above, the Assam Rifles have detained the petitioners goods indefinitely. However, as there is a suspicion that the detained goods are smuggled goods, this Court is of the view that the issue in all the cases can be brought to an early solution, if the question of whether the detained goods are smuggled goods or not is settled. In view of the fact that a large number of areca nuts/black pepper and vehicles have been detained in different cases pending in this Court on the suspicion that they are smuggled goods, this Court is of the view that an investigation may be made by an appropriate and competent authority. As the issue involves disputed questions of fact and as the Customs Act is a complete Code in itself, this Court is of the view that investigation may be conducted by the Customs Department, after compliance with Section 123 of the Customs Act. zyxw 15. In view of the above reasons, this Court directs the respondent No. 4 (Customs Department) to take up the case of the detained areca nuts/black pepper. The Commandants of the 46th Assam Rifles and 8th Assam Rifles or their representatives shall within 1 (one) week from today approach the Assistant Commissioner, Custom Preventive Division, Aizawl with regard to the detained goods. The Assistant Commissioner, Custom Preventive Division shall within one week from today, fix a date for the Assam Rifles and the petitioners to appear before him/her. On the date fixed for appearance of the parties, the Assistant Commissioner of Customs shall hear the Commandants of the 46th Assam Rifles and 8th Assam Rifles or their representatives, in terms of Section 123 of the Customs Act, 1962 and the letter dated 28.11.2019 issued by the Superintendent (A/S)/PRO Custom Division, Aizawl. On the date fixed by the Assistant Commissioner of Customs, the Assam Rifles shall give evidence if any, to the Customs Department and reasons as to why they believe the detained goods to be smuggled goods. On the date fixed by the Assistant Commissioner of Customs, the Assam Rifles shall give evidence if any, to the Customs Department and reasons as to why they believe the detained goods to be smuggled goods. Further, the Assam Rifles shall also state the point of entry of the detained goods into India and as to why the Assam Rifles did not detain the said goods at the entry point/s, especially if they had a border outpost at the entry point/s. wxyz If the Assistant Commissioner, Customs Department is satisfied with the reasons/evidence produced by the Assam Rifles to show that the detained goods are smuggled goods, a case/cases shall be registered against the detained goods/vehicles and cause an investigation to be made as per the Customs Act, 1962 and other applicable laws. The Assam Rifles shall thereafter immediately send the detained goods and vehicles to the respondent No. 4, with prior intimation being given to the petitioners and the Customs Department, with regard to the said movement of the goods/vehicles. The respondent No. 4 shall thereafter take over the seized goods and trucks from the Assam Rifles. Seizure lists shall also be made in respect of the detained goods/vehicles, which shall be countersigned by the concerned Commandants of the Assam Rifles Battalions or their representatives. The detained vehicles shall thereafter be released to the rightful owners immediately on zimma by the Customs Division, Aizawl and their final release will be subject to the outcome of the final decision/investigation to be conducted by the Customs Department. zyxw wxyz If the Assistant Commissioner, Customs Department is not satisfied with the evidence/reasons given by the Assam Rifles and comes to a finding that the detained goods cannot be proved to be smuggled goods, the respondent Assam Rifles shall immediately release the detained goods and vehicles to the petitioners. zyxw wxyz The entire exercise for holding a preliminary enquiry, to decide whether a case should be registered or the detained goods be released shall be concluded by the Asst. Commissioner, within a period of 3 (three) weeks from the date of receipt of a certified copy of this order by the Asst. Commissioner, Customs. The above directions will however not be construed to be a bar for the Customs Department to cause an investigation on its own discretion, with regard to whether the detained goods are smuggled goods. zyxw 16. Commissioner, Customs. The above directions will however not be construed to be a bar for the Customs Department to cause an investigation on its own discretion, with regard to whether the detained goods are smuggled goods. zyxw 16. In respect to the prayer made by the petitioners'' counsel for payment of damages and status report, with regard to the detained goods, this Court is not inclined to entertain the same as there are limitations for deciding such issues under writ jurisdiction. The petitioners are however at liberty to approach the appropriate forum as per law, if they are aggrieved. wxyz The writ petitions and interlocutory applications are accordingly disposed of. zyxw