A SHANKATALY Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) WE should at the outset state that we had some difficulty in arriving at a conclusion on the facts in the instant case, the difficulty presented by the admitted fact that the appellant was a transit passenger with a transit visa. He was a Ceylonese national who carried on business in precious stones in Hong Kong. On November 6, 1966 he arrived at the Meenambakkam airport from Colombo by Air Ceylon. He alighted from the aircraft at about 4-30 P.M. with a suitcase and a brief case. On coming into the clearance room in the airport, he identified his baggage and asked the same to be brought to table No. 7. Accordingly, a suitcase belonging to the appellant was placed on the table. One Mr. North examined it and when that was being done, the appellant mentioned to him that he would like to have the suitcase bonded. Inspector Nagarajan was sent for and when he appeared on the scene, Mr. North discovered that there was a brief case in between the legs of the appellant standing before the table, and when questioned, he admitted that it was his, and on being told to do so, he placed it on the table. The Appellant then in answer to a query from Mr. North said that it contained dutiable goods and he would like the same to be bonded. When the box was opened, it contained two packets in which two small cloth bags were found. When one of the small cloth bags was cut open, it came out that it contained gems. There was a slight variation as to what precisely happened then, but the departmental authorities proceeded on the basis that it was only when Mr. North pointed to the brief case in between the legs of the appellant that he would place it on the table and it was only then that he stated that the brief case contained precious [of this case, ] stones which he would like to have bonded. For the purposes of this case, we will take that factual view of the Department as well established. The gems were valued at Rs. 9, 26, 586. They were confiscated under Section 111(d) of the Customs Act, 1962. In addition a penalty of Rs. 5, 000 was imposed. Kailasam, J. declined to interfere with the departmental orders.

(2.) THE Department relied on the following facts in support of its view that the goods were liable to confiscation under Section 111(d) and that the appellant was liable to the penalty (1) that instead of travelling straight to Singapore, the appellant took a devious route (2) the appellant's conduct before table No. 7 in placing only the suit case first for examination and retaining the brief case in between his legs until it was pointed out by the officer on duty for placing it for check (3) the appellant not being ready until then to voluntarily declare that he had the brief case, that it contained precious stones and that as a transit passenger he would like to have them bonded and (4) the gem markets in Singapore and Hong Kong were much better than in Madras, but that the gems had a good market in India too.

(3.) ON the facts, we are not persuaded to differ from Kailasam, J. As we said we take the facts as found by the Department. It follows, therefore, that the appellant had reservations in respect of his brief case, which he did not make a clean breast of by placing it on the table along with the suitcase. The departmental officer noticing it pointed it to the appellant and it was only then that he came forward with the truth. This fact coupled with the fact that the goods were not declared by the appellant at the Colombo airport and that he was resorting to a circuitious route might well furnish the basis for the departmental finding that the appellant intended to smuggle the goods. Kailasam, J. sitting as he did in certiorari, could not possibly say that this finding was not supported by evidence. Unless the goods were declared, the provisions of Section 80 would not be attracted and they would be liable to duty. The intention of the appellant apparently was to try and then take the goods out. That was the approach of the Department. Considering all the facts we cannot say that this approach was wholly unfounded. The appeal fails and is dismissed with costs.