SURESH KUMAR AGARWAL Vs. COLLECTOR CUSTOMS MADRAS

JUDGEMENT

(1.) The petitioner was travelling on 14-6-1984 by Madras to Howrah Coramandal express. The Customs Officers at Vishakhapatnam had received reliable information on that day that certain person with prohibited/smuggled zip fasteners was travelling by the said train. At about 9 p.m. at Waltair Railway Station the Customs authorities combed the said train and found few gunny bags and other containers during the course of search in the compartment bearing No.7203 of the said train. The petitioner was found sitting along with one other person just by the side of the said luggage on a seat. The petitioner was then questioned and the petitioner gave certain information disowning title to the articles in the said packages and contended that the goods were given to him only for the purpose of carrying them from Madras to Bubaneshwar. It was stated that the person who gave these articles was unknown to the petitioner and the petitioner was only required to carry them for certain consideration. The said bags contained Zip Fasteners, rubber bands and certain other articles. As the articles were reasonably believed to be liable for confiscation under the provisions of the Customs Act the same were taken incharge. The petitioner was later on summoned before the Customs , authorities and again questioned. He was given due opportunity to explain the source of the said things. After the due enquiry the respondent No.2 who was the appropriate authority under the Customs Act passed orders under Section lll(d) of the Customs Act confiscating all the goods including certain cash which was found in it. The said cash was confiscated under Section 119 25 of the Customs Act. Further Respondent No.2 imposed penalty of Rs.10,000/- on the petitioner under Section 112 of the Customs Act.

(2.) The order of respondent No.2 was challenged before the Customs Exciseand Gold (Control) Appellatte Tribunal (CEGAT). The said appeal, being in Appeal No.142 of 1985 was dismissed with certain modifications and the modification was in respect of confiscation of the cash amount of Rs.1,800 which CEGAT found as not connected with the sale proceeds of any smuggled goods. The CEGAT order is dated 30-4-1986. The said order is challenged.

(3.) It may be stated at the outset that though the order of CEGAT has been 35challenged, CEGAT has not been made as a proforma party to this petition. In the petition the petitioner has referred to this order as order having been passed by respondent No.1. Respondent No.1 is the Collector of Customs at Madras. It is therefore clear that the writ petition cannot be decided in absence of necessary party. Though it is true that CEGAT is a proforma party, it cannot be said that it is not a necessary party. If the order of CEGAT is to be challenged the said Tribunal had to be shown as the proforma party.