HARKISHIN KHUSHALANI Vs. S G RAJADHYAKSHA

JUDGEMENT

(1.) Both the learned counsel have fairly stated that it is unnecessary for me to set out the facts or the various questions urged by the Counsel at length because on admitted facts the petitioner is entitled to contend legitimately that the complaint filed against him cannot be sustained and ought to be quashed.

(2.) The few relevant facts are as follows :- The petitioner is a resident of Abu Dhabi and is carrying business at Abu Dhabi. On 17-7-1980 he came by a-British Airways Air Craft from Hongkong and on his way to Abu Dhabi he broke his journey in Bombay. He had two suitcases with him; but he had no intention to bring the suitcases in Bombay. The suitcases were never to be cleared in Bombay at all. The petitioner broke his journey in Bombay because he wanted to meet his aged parents; but the suitcases were to be transhipped from British Airways Air-craft to the Gulf Airways Air-craft. This transhipment was to be done not by the petitioner but by the Airline Authorities themselves. So far as the petitioner was concerned he had a brief-case with him but even that brief-case he handed over to the Customs Authorities before he left the Airport. On 19th July 1980, the Intelligence Officers of Customs at the Bombay Air Port noticed those two cases near the conveyer-belt shutters in the arrival baggage hall. Seeing that the bags belonged to the petitioner and that on lifting they were found to be unusually heavy, they got suspicion about him and they were waiting for his arrival at the Airport. When the petitioner came to the Airport for catching his flight in the morning on 20th July 1980, he was accosted by the Customs Officers and he was asked about the bags. When the petitioner admitted that the bags belonged to him, he was asked to state the contents of the bag and his statements were recorded. When the bags were opened they were found to contain some undeclared items such as wrist watches and watch straps in addition to some other articles declared by the petitioner. It was found that the declaration made by the petitioner as regards the contents of the bags was not strictly correct. It was on the basis of this state of facts that the instant criminal proceedings have been started. The Customs Authorities thereafter started adjudication proceedings against the petitioner. But the Additional Collector of Customs, Shri Joglekar, was satisfied that no offence under S. 111(d) could be brought home against the petitioner because it could not be said to have been proved either that he had imported or attempted to import the contraband articles in India. This was evidently so because the suitcases in which the contraband goods were found were not to be brought to India at all and they were to be transferred from one Air-craft to the other Air-craft for carrying, first of all, from Hongkong to Bombay and thereafter, by transhipment, from Bombay to Abu Dhabi. In this plain view of the matter, the learned Officer specifically exonerated the petitioner of the offence under S. 111(d) of the Customs Act. The learned Officer, however, held that the statement made by the petitioner as regards the contents of the suitcases were at material variance with the actual contents of the suitcases and that the declaration made by the petitioner regarding the contents in the suitcases, in his statement made before the Customs Authorities, was at variance with the actual state of affairs. He, therefore, held that the goods in question were liable for confiscation under S. 111(m) of the Customs Act 1962. He therefore ordered confiscation of the goods which were not properly declared as also the imposition of penalty of Rs. 15,000/- against the petitioner.

(3.) The petitioner filed appeal to the Board and the Board rightly held that the facts of the case did not warrant attraction of Clause (m) of S. 111 of the Customs Act at all. The Board rightly held that the declaration contemplated by Clause (m) of S. 111 of the Customs Act was the one which is provided for by S. 77 of the Customs Act and the said declaration under S. 77 is one which has got to be made by the passenger for clearance of the goods for the purpose of being brought into India. The Board found that these goods were never intended to be cleared through the Customs at all and it was not the case of the Customs that any attempt was made by the petitioner to clear the goods through the customs. It was, therefore, rightly held that the description given by the petitioner of the goods in his statement before the Customs Authorities was not a declaration within the meaning of S. 77 of the Act at all and that hence, Clause (m) of S. 111 of the Act not attracted at all. The order of confiscation as well as the order of penalty were, therefore quashed and set aside by the Board.