V J A FLYNN Vs. UNION OF INDIA

JUDGEMENT

(1.) Challenge in these two writ petitions CW. No. 4624/97, filed by V.J.A.Flynn and CW .No . 1985/2001 , filed Shyam Sunder Rastogi, is to the validity of the show cause notice dated 2nd December,1994, issued by the Collector of Customs under Section 124 of the Customs Act, 1962, as to why the seized goods be not confiscated and personal penalty be not imposed on the petitioners. Since both the writ petitions arise out of common facts and a common show cause notice, we propose to dispose of the same by this order .

(2.) A brief factual background of the case is as follows:

(3.) On 21st June,1994, the petitioner V.J.A.Flynn, holding an Australian passport and one Sadasivan Mudaliar, holder of a Fiji Passport were intercepted by Air Customs Preventive Officers at IGI Airport when they were trying to board a flight for Hongkong alongwith a large quantity of various types of coins of gold, silver, copper etc. The coins were suspected to be antiquities, export of which was prohibited under Section 3 of the Antiquities & Art Treasure Act,1972 (in short the Antiquities Act). Therefore, at request of Customs, the Director General of the Archaeological Survey of India (in short ASI) deputed Mr.D.V . Sharma , Superintending Archaeologist, who examined the coins and prima facie found them to be antiquities. The coins alongwith other bags and suitcases were seized under Section 110 of the Customs Act,1962 on the reasonable belief that the export of the same was prohibited under the Antiquities Act. Some Indian currency was also seized under Section 110 of the Customs Act, 1962 read with FERA,1973. The statement of Flynn and Mudaliar was recorded under Section 108 of the Customs Act. The petitioner Flynn stated that the coins recovered from Sadasivan actually belonged to him and were handed over to him only to save excess freight. In his voluntary statement under Section 108 of the Customs Act, Flynn also revealed that he had been collecting gold, silver, brass and copper coins, both Roman and Indian and had purchased a huge quantity from Bangalore and after sorting out the same at his friend Shyam Sunder Rastogi's house at B-9, Parnposh Enclave, New Delhi was taking some with him, whereas leaving a large quantity with Rasiogi . A search was conducted at the house of Rastogi on the same date which resulted in the recovery of 34149 old metallic coins. Rastogi alongwith the coins was brought to IGI Airport. Even the coins recovered from the house of Rastogi were certified to be antiquities. The statement of Shyam Sunder Rastogi, under Section 108 of the Customs Act, was recorded. From this it appeared that he was actually involved in smuggling of the antiquities alongwith Flynn. The petitioner Flynn had been staying with Rastogi, during his visits to India, for the last about 30 years. Both the petitioners were arrested on 21th June,1994 and criminal complaints under the Customs Act were lodged against them on 28th August, 1994. The detention order under Section 3 of COFEPOSA,1974 was also passed against both the petitioners on 7th September , 1994. Vide orders dated 4th March ,1996 in Cr1,M(M ) .No.244/95, this Court quashed the criminal complaint against both the petitioners and Sadasivan Mudaliar. Declaration under Section 9 of the COFEPOSA was set aside by the High Court vide orders dated 19th September , 1995. The detention orders were also set aside by Hon'ble the Supreme Court of India vide order dated 18th December ,, 1996. The orders quashing the complaint and setting aside the detention orders were acted upon and the petitioners were released. Flynn is reported to have already left the country.