OKWY SHEDRACK AKPUBA Vs. UNION OF INDIA

JUDGEMENT

(1.) By the above Petition, filed under Article 226 of the Constitution of India, the Petitioner prays for, (i) setting aside the Order in Original dated 22/05/2008, the Order in Appeal dated 11/06/2008 and the Order in Revision dated 25/06/2008 passed by the Central Government; (ii) that the Petitioner be allowed to take the miscellaneous items and the medicines confiscated by the Customs Department by setting aside confiscation on such terms and conditions as this Court deems fit; (iii) that the Petitioner be granted compensatory costs by imposing same on the Respondents jointly and severally for retaining the passport of the foreign national like the Petitioner for a period of 75 days; (iv) that the Respondents be directed to pay the Petitioner jointly and severally the compensation in the sum of Rs.13,65, 490/being equivalent of the value of Life Saving Medicines with interest thereon at the rate of 24% p.a. from the date of seizer till payment; and (v) that the Respondent No.4 i.e. Additional Commissioner of Central Excise, Raigad Commissionerate, be directed to pay compensatory cost to the Petitioner for this illegal and unauthorized act.

(2.) The factual matrix involved in the above Petition can be stated thus :The Petitioner is a citizen of Nigeria and claims to be a businessman dealing in medicines in Nigeria. The Petitioner had visited India on number of occasions in the past for making purchases of readymade garments and taking the same to Nigeria. The incident, which has given rise to the proceedings resulting in impugned orders in respect of which the Petitioner seeks the reliefs as mentioned in prayer clause (i), has occurred on the night of 19/20th April 2008. It appears that the Petitioner had arrived in India on 14th April 2008 and after staying for four days, the Petitioner was to leave for Nigeria on the night of 19/20th April 2010. The Petitioner had booked himself on the flight of Kenya Airlines bearing flight No.KQ203 for going back to his country. The Petitioner checked in with the said Airlines with 15 pieces of baggage. On seeing the Petitioner with the said 15 pieces of baggage, the Customs Officials called upon the Petitioner to open the baggage as they intended to examine the same. The Customs Officials at the Airport did not allow the Petitioner to board the flight and detained the Petitioner on the Airport on the night of 19/20th April 2008. They examined the baggage and made a panchanama of the goods. It appears that the Customs Officials took away the Petitioner's passport bearing No.A3605352A which had Visa endorsement valid up to 30th June 2008. It is the case of the Petitioner that the Customs Officials also took away an enlarged photograph of the Petitioner and two packages of baby diapers. It is the case of the Petitioner that in spite of repeated requests, the Customs Officials did not hand over the copy of the panchanama drawn on the said date to the Petitioner nor issued any receipt to the Petitioner for taking over the passport. It appears that the Petitioner was served with the summons under Section 108 of the Customs Act (for brevities sake "the said Act") on 20th April 2008 asking the Petitioner to remain present on 21st April 2008. In accordance with the said summons, the Petitioner remained present and his statement was recorded on 21st April 2008. The statement of the Petitioner was to the effect that he had earlier come on 3rd April 2008 on which occasion he had brought foreign currency amounting to US $ 52,250 in respect of which he had filed currency declaration forms and the same were accepted by the Customs Authorities. He further stated that he had made certain purchases out of the said amount of US $ 52,250. However, on account of the phone call received from his wife in Nigeria, he had to prepone his departure and accordingly he left India on 04th April 2008. Thereafter he arrived in India again on 14th April 2008 and out of the said amount he made purchases of medicines including Life Savings Drugs which have been valued by the Customs Authorities at Rs. 13,65,490/and also made certain purchases like stationery items, dress materials etc. amounting to Rs.66, 900/. The Petitioner claims that he visited the office of the Customs Authorities and requested for release of his passport as he wanted to go back to Nigeria. However, according to him, the said request was of no avail as no heed was paid by the Customs Authorities to his request. The Petitioner's further statement was again recorded on 24th April 2008 in which he stated that for the said medicines he did not have any Doctor's prescription and that the said medicines have been purchased by him as he had an order from one Anambra State Government Board General Hospital, Nigeria. In so far as confiscation is concerned, since the Petitioner had waived issuuance of show cause notice, the Assistant Commissioner, concerned, proceeded to hear the Petitioner and passed an order on 30th April 2008 confiscating the seized goods in question. Thereafter an Order in Original came to be passed on 22.5.2008 by the Joint Commissioner of Customs, Air Intelligence Unit. The Joint Commissioner held that export of commercial goods or goods in commercial quantity by a passenger from India cannot fall within the category of "Bonafide Baggage". The Joint Commissioner further held that the export of the said medicines was in violation of Section 113(1) of the Foreign Trade (Development & Regulation) Act as the said goods were sought to be exported in violation of Exim Policy and especially restriction contained in para 2.20 of the said policy. The Joint Commissioner observed that the charges which were levelled against the Petitioner in respect of the subject goods were made known to the Petitioner. However, the Petitioner had requested for waiver of show cause notice and only wished to be heard in person. By the Order in Original, the Joint Commissioner directed absolute confiscation of the goods viz. the medicines which were listed at Item Nos.1 to 16 valued at Rs.13,65,490/under Section 113(d) of the said Act. The Joint Commissioner also ordered confiscation of the other items viz. Item Nos.17 to 23 valued at Rs.66,900/under section 113(d) & (h) of the said Act. However, he allowed the Petitioner an option to pay redemption fine of Rs. 20,000/in lieu of confiscation within 15 days from the date of the said order. The Joint Commissioner imposed a personal penalty of Rs.1,40,000/under Section 114 of the said Act upon the Petitioner. Aggrieved by the said Order in Original dated 22nd May 2008 the Petitioner filed an Appeal before the Commissioner of Customs (Appeals), Mumbai. By an order dated 11th June 2008, the Commissioner of Customs, Appeal Unit, Airport rejected the said Appeal and upheld the Order in Original dated 22nd May 2008. The Commissioner of Customs inter alia observed that the Appellant i.e. the Petitioner herein had failed to declare the goods as required under Section 77 of the Customs Act, 1962. The Commissioner of Customs also rejected the contention advanced on behalf of the Appellant that the conditions of export were fulfilled by the Appellant as he had the copies of purchase invoices showing the licence in the form 20B or 21B. The Commissioner of Customs further observed that the goods in question cannot be held as bonafide baggage and since they were not declared truly, the Commissioner of Customs found no reason to interfere with the said Order in Original. Aggrieved by the said Appellate Order dated 11th June 2008, the Petitioner filed a Revision Application before the Central Government. The Central Government rejected the said Revision Application by the impugned order dated 25th June 2008. The Central Government reaffirmed the findings of the Lower Authorities.

(3.) We have heard the learned counsel for the Petitioner Mr.K R Choudhari and learned senior counsel for the Respondents Mr.M I Sethna.