ABDUL KADER Vs. INSPECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS Writ Petition coming on for hearing on this day, upon perusing the petition and the affidavit filed in support thereof the order of the High Court, dated 29-9-1972 and made herein and the counter affidavit filed herein and the records relating to the order in C. No. VIII/l0/306/70-Cus. Adj. dated 28-7-1972 on the file of the Second Respondent and comprised in the return of the Respondents to the Writ made by the High Court, and upon hearing the arguments of Mr. P. M. Jumma Khan for M/s. M. R. M. Abdul Karim, M. M. Abdul Razack and S. Abdul Kareem, Advocates for the petitioner and of Mr. S. Jagadeesan for Mr. K. Parasaran, Central Government Senior Standing Counsel on behalf of the Respondents, the Court made the following order.

(2.) ON May 3, 1970 at about 5.20 A.M. the officials of the Central Excise Department stopped the Petitioner at the Moore Market bus stand, searched him and seized from him a sum of Rs. 60, 000. According to the Petitioner he was taken to the Central Railway Police Station and a statement was extracted from him to the effect that the said amount represented the proceeds of smuggled goods. After his release the next day, the Petitioner obtained a Certificate from a doctor for the injuries on his body, and complained to the higher authorities about the treatment meted out to him by the Departmental Officials. According to him even this complaint was not enquired into, but a show cause memo was given to him on the presumption that he had contravened the provisions of Section 111(d) of the Customs Act, 1962, and that the currency was liable to confiscation under Section 121 of the said Act. ON an enquiry held for the purpose and after giving the petitioner an opportunity to explain, the Collector found that the contentions put forward by the Petitioner were not sustainable and that the complaint of maltreatment was an after-thought. In those circumstances he directed the confiscation of the Indian currency seized from the Petitioner and observed, regarding the imposition of penalty :

(3.) IN a case K. Vivekanandan and Another - Petitioners v. The Superintendent of Central Excise, Coimbatore and Another - Respondents (W. P. No. 47 of 1972) though not exactly similar, but where the facts were not far different from those appearing in this case, while considering the purport of section 121 of the Customs Act, I observed that Section 121 should always be read with Section 105 of the Act and that before a search and seizure and the supervening confiscation of the sale proceeds said to be of smuggled goods could be made, three conditions were necessary for the exercise of such a power, viz., (i) that the Assistant Collector of Customs should have reasons to believe that any goods which included currency were liable to confiscation (ii) that such goods were secreted in any place and (iii) that he should authorise any officer of the Customs to search or might himself search for such goods. After having laid down the primordial requirements for the exercise of the power, I concluded by saying that, if the seizure in a case appeared to be the result of caprice or in the course of a roving enquiry or was undertaken for a purpose which was not even collateral to the purpose for which the search was made under the Customs Act or under similar enactments, then such a seizure resulting for a naked arbitrary exercise of power was illegal and the resultant order should be removed under Article 226 of the Constitution. IN the instant case, there is no acceptable proof to find that the inspecting staff of the Central Excise Department or the Assistant Collector of Central Excise had at any time prior to the search and seizure entertained any reasonable belief, on material scrutinised by them that the petitioner was likely to arrive in Madras with tainted INdian currency attributable to the sale of smuggled goods or goods of illicit origin. As the foundation for the exercise of power is conspicuously absent in the instant case, following the ratio in Writ Petition No. 47 of 1972, I allow this Writ Petition. There will be no order as to costs.