VIGNESWARAN SETHURAMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE issue that arises for consideration in this writ petition is whether the Customs Act, 1962 and the Baggage Rules, 1998 prohibit foreign tourists entering India from wearing gold ornaments and whether they are bound to declare the gold ornaments worn by them on their person and are not carried in a baggage. Incidentally, the question whether such undeclared gold ornaments worn by a foreign tourist entering India are liable to confiscation also arises for consideration in this writ petition.

(2.) THE petitioner, a Sri Lankan citizen holding Sri Lankan passport No.N 5771160 arrived at Cochin International Airport on 22.2.2014 by Sri Lankan Airlines Flight UL -165 from Colombo. He is also an overseas citizen of India as defined in section 2 (ee) of the Citizenship Act, 1955, he having obtained registration as an overseas citizen of India in terms of section 7A of the Citizenship Act, 1955. On arrival at Cochin Airport, after emigration formalities were completed, he walked through the green channel. The petitioner has averred that after he walked through the green channel, a person in plain clothes who identified himself as an officer of the Customs intercepted him, executed a search on his person and asked him to remove the gold chain he was wearing and declared that he is taking it into custody for contravention of the customs laws. The petitioner has further averred that though very many other passengers were wearing gold ornaments and jewellery, he alone was taken to the Air Intelligence Office Unit within the airport and made to sign on a typed sheet of paper purporting to be a statement made by him under section 108 of the Customs Act, 1962 (hereinafter referred to as ''the Act '' for short). Acopy of the said statement is on record as Ext.P2. The writ petition proceeds to state that he was thereafter served with a copy of Ext.P3 order passed by the second respondent ordering confiscation of the gold chain seized from him and levying a penalty of Rs.5,000/ -. It is stated that believing the promise held out by the second respondent that the gold chain will be returned on payment of the penalty, he remitted the sum of Rs.5,000/ - levied as penalty with the Exchange Bureau of State Bank of Travancore at Cochin International Airport on 22.2.2014 itself and thereupon, Ext.P4 receipt was issued. In this writ petition, the petitioner challenges Ext.P3 order and seeks the following reliefs:

(3.) I heard Sri.Aswin Gopakumar, learned counsel appearing for the petitioner, Sri.John Varghese, learned Senior Counsel for Central Board of Excise and Customs, who took notice when the writ petition first came up for admission hearing before me on 5.3.2014. Sri.Aswin Gopakumar, learned counsel appearing for the petitioner contended that Notification No.117/92 dated 1.3.1992 which is said to have been violated, does not apply to the case on hand as it deals with the duty payable on gold imported into India by a passenger of Indian origin or holding an Indian Passport, that in the instant case, the gold chain (84 grams) was not brought in the petitioner's baggage but was worn by him and therefore, it was not liable to be declared in the baggage declaration contemplated in section 77 of the Act. The learned counsel for the petitioner submitted that the Baggage Rules, 1998 do not contain a stipulation that a foreigner travelling to India cannot wear gold ornaments on his person, that the Baggage Rules, 1998 have no application to gold ornaments worn by a person and has application only to gold or silver in any form whatsoever carried in a baggage and therefore, for that reason also, the impugned order is liable to be set aside. The learned counsel for the petitioner contended with reference to the definition of the term ''Baggage '' occurring in section 2(3) of the Act and the stipulations in sections 77, 80 and 81 thereof that the gold chain worn by the petitioner is by necessary implication excluded from the category of goods carried in a baggage and therefore, the Baggage Rules, 1998 can have no application.