Kerala High Court
Jabin K. Basheer vs Union Of India on 19 November, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939
WP(C).No. 8301 of 2017 (K)
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PETITIONER :
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JABIN K. BASHEER,
S/O. BASHEER K.A, KUDIYIL HOUSE,
RANDAR P.O., MUVATTUPUZHA,
ERNAKULAM DISTRICT.
BY SRI.M.RAMESH CHANDER,SENIOR ADVOCATE
ADVS. SRI.MANU TOM
SRI.K.R.JITHIN
SMT.K.A.SANJEETHA
RESPONDENT(S):
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1. UNION OF INDIA,
REPRESENTED BY SECRETARY TO MINISTRY OF FINANCE,
NEW DELHI - 1.
2. COMMISSIONER OF CUSTOMS,
CUSTOM HOUSE, WILLINGDON ISLAND,
COCHIN - 682 009.
R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.SUVIN R.MENON, CGC
R2 BY SREELAL N. WARRIER, SC,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28-03-2017, THE COURT ON 04-04-2017 DELIVERED THE FOLLOWING:
sts
WP(C).No. 8301 of 2017 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 PHOTOSTAT COPY OF THE ACKNOWLEDGEMENT FROM THE OFFICE OF
THE 2ND RESPONDENT.
P2 PHOTOSTAT COPY OF THE APPLICATION FILED BY THE PETITIONER ON
05.1.2017.
P3 PHOTOSTAT COPY OF THE NOTICE DATED 19.11.2016.
P4 PHOTOSTAT COPY OF THE NOTICE DATED 29.12.2016.
P5 PHOTOSTAT COPY OF THE NOTICE DATED 23.12.2016 ISSUED BY THE 2ND
RESPONDENT.
P6 PHOTOSTAT COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT
DATED 02.2.2017.
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A.TO JUDGE
sts
SHAJI P. CHALY, J.
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W.P.(C). No.8301 of 2017
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Dated this the 4th day of April, 2017
JUDGMENT
This writ petition is filed by the petitioner seeking to quash the original of Ext.P6 order passed by the 2nd respondent under the provisions of the Customs Act, 1962, so far as concerning the petitioner.
2. Material facts for the disposal of the writ petition are as follows; petitioner was proceeded under the provisions of the Customs Act, registered a case, O.S.No.111/2015, and a show cause notice was issued to him. Petitioner is implicated as accused No.30. The allegations raised against the petitioner is that, while working on deputation as Civil Police Officer in the Immigration Wing at Nedumbassery Airport, Cochin on deputation, he had facilitated smuggling gold by abusing his official position and about 1500 Kgs. of gold were smuggled during the period, December 2013 to 2015. Petitioner was arrested on 16.7.2015 and released on bail on 26.8.2015. Later petitioner was detained under COFEPOSA W.P.(C). No.8301 of 2017 2 on 14.10.2015 and while so a show cause notice was issued to him on 14.11.2015. On 21.11.2016, COFEPOSA custody was completed. The show cause notice was received by the petitioner while he was undergoing detention under COFEPOSA, initiating adjudication proceedings under the Customs Act, 1962. On 27.10.2016, petitioner entered appearance through counsel, sought adjournment and it was posted to 23.11.2016. Again an adjournment was sought and got it posted to 22.12.2016. On which date again an adjournment was sought and according to the petitioner, case was posted to 6.1.2017. However on 5.1.2017, petitioner's counsel filed an application for adjournment, which was acknowledged as per Ext.P1. According to the petitioner, thereafter no notice was issued to the petitioner. But after nearly a month an order is passed viz., Ext.P6 dated 2.2.2017 imposing penalty of Rs.20 Crores and ordered to confiscate Rs.82,84,550/-. It is contended, the said order is issued without providing an opportunity of hearing. Moreover, it is submitted that, petitioner's right to appeal under Section W.P.(C). No.8301 of 2017 3 129A is not an effective remedy since a condition is prescribed thereunder, to pay 7.5% of the penalty as a condition precedent for entertaining the appeal and it is too onerous to be complied with. Therefore, it is the contention of the petitioner that, Ext.P6 order is without justification and passed in absolute violation of principles of natural justice and is also exercised by the 2nd respondent in a malafide manner.
3. Heard learned Senior Counsel for the petitioner, learned CGC appearing for the respondents and perused the documents on record and the pleadings put forth by the petitioner.
4. In my considered opinion, the sole question to be considered is whether Ext.P6 order suffers from the vice of arbitrariness consequent to the alleged violation of principles of natural justice. Apparently, on a reading of Ext.P6, what is discernible is, 2nd respondent has unearthed a smuggling activity involving about 58 persons against whom proceedings were initiated under the provisions of the Customs Act. Ext.P6 is an elaborate order passed by the 2nd respondent, which is W.P.(C). No.8301 of 2017 4 an appealable order in accordance with Section 129A of the Customs Act. In Ext.P6 order, the details in respect of the complexity of the petitioner is dealt with in paragraph 124.30. The details with respect to the issuance of notice to the petitioner is contained under sub para 2.1 of the aforesaid paragraph. It is stated therein that, the petitioner has not furnished reply to the show cause notice, rebutting the charges made against him, but on 27.10.2016, Advocate Manu Tom appeared before the 2nd respondent representing the petitioner and sought adjournment of the proceedings for a month, which was acceded to. During the next hearing held on 23.11.2016, the very same Advocate appeared and sought adjournment of the proceedings and the next date of hearing was fixed on 22.12.2016, on which date counsel again filed application seeking adjournment and the case was obviously posted to 6.1.2017. Neither the counsel nor the noticee appeared for the last hearing scheduled on 6.1.2017. However, an affidavit was filed by his Advocate on 5.1.2017 seeking one month time to submit reply to show cause notice, W.P.(C). No.8301 of 2017 5 and it is stated therein that, the petitioner is completely innocent. In sub-para 2.2 it is stated that, the adjudication proceedings was initiated only in the month of October, 2016, i.e., 10 months after the issuance of show cause notice giving all noticees ample chance and time to study the charges, and to rebut/defend the allegations in the notice. Therefore, according to the 2nd respondent, sufficient opportunity was provided to the petitioner in accordance with law to submit reply to the show cause notice and contest the proceedings. However, the petitioner instead of making use of the opportunity provided, attempted to protract the proceedings. It was under the said circumstances, 2nd respondent has taken the matter for adjudication. The involvement of the petitioner in the subject issue was elaborately considered by the 2nd respondent and has entered into a finding that, there is sufficient evidence to hold that the petitioner was seriously involved in the smuggling activities. It was thereupon that penalty was imposed against the petitioner.
5. The sole aspect to be considered now is whether W.P.(C). No.8301 of 2017 6 there is any manner of illegality on the part of the 2nd respondent in passing Ext.P6 order. The thrust of the contention advanced by the learned Senior Counsel for petitioner is that, an application was filed on 5.1.2017 before the 2nd respondent seeking adjournment of the proceedings and also requesting that no ex parte order shall be passed against the petitioner without providing further notice. However, without issuing any further notice, Ext.P6 order is passed by the 2nd respondent. Learned Senior Counsel Sri. Ramesh Chander has invited my attention to Ext.P2 petition filed by the petitioner on 5.1.2017, wherein it is stated by the counsel that, petitioner has entrusted the show cause notice to the counsel for filing a detailed reply, which is almost complete. That apart it is stated, petitioner is absolutely innocent and he denies the entire allegations. It is further stated, petitioner is intending to adduce evidence on his side and also to cross-examine the persons, whose statements are relied for issuing the show cause notice. Therefore, the personal hearing can be attended only after that. So also it W.P.(C). No.8301 of 2017 7 stated, the adjournment is sought for only because of the aforementioned reasons and the noticee may not be held ex parte without intimating him with prior notice in that regard. Hence, prayed for personal hearing to another date, at least after a month. Learned counsel invited my attention to sub- para 2.2 of paragraph 124.30 of Ext.P6 and contended that, after 22.12.2016 the matter was adjourned to 6.1.2017, however, there was no posting on that date and the matter was taken up for hearing on 15.1.2017 and therefore, it is clear there was no application of mind for the 2nd respondent while passing the order. Learned Senior Counsel also invited my attention to the judgment of a Division Bench of this court in Saju v. Muthoot Vehicle and Assets Finance Ltd.[2015 (4) KLT 394] to canvass the proposition that, though the 2nd respondent has liberty to proceed ex parte, he should have given the petitioner a notice of his intention to proceed ex parte. It is also contended that sufficient time was not granted to file reply and contest the proceedings in accordance with law. Therefore, according to the counsel, the 2nd respondent W.P.(C). No.8301 of 2017 8 has passed Ext.P6 order in absolute violation of the principles of natural justice and therefore, interference of this court under Article 226 of the Constitution of India is highly warranted.
6. On the other hand, learned CGC Sri.Sreelal Warrior, invited my attention to Section 122A of the Customs Act and contended that, maximum opportunity was provided to the petitioner to file reply to the show cause notice and contest in the proceedings. According to the learned Counsel, as provided under Section 122A, the 2nd respondent is not vested with power to grant adjournment more than three times to a party during the proceedings. Therefore, it is contended, sufficient opportunity was provided in accordance with law, enabling the petitioner to participate in the proceeding and establish his case. That apart, it is contended, even though petitioner did not appear and contest the proceedings, the entire aspects were verified by the 2nd respondent and has arrived at a conclusion on the basis of the facts and circumstances involved in the issue. It is also submitted, W.P.(C). No.8301 of 2017 9 sufficient time was provided on each adjournment. According to the counsel, on the date of appearance on 27.10.2016 at the request of the counsel for the petitioner, the matter was adjourned to 23.11.2016 and thereafter, to 22.12.2016 and again to 6.1.2017, which thus means petitioner was provided with nearly 70 days, from the date of first appearance, to file reply. Even though, the 2nd respondent was not duty bound to provide another opportunity, it is seen from the records that, another opportunity was provided and the case was actually posted to 6.1.2017, and on the previous day, counsel for petitioner filed application seeking adjournment, however refuted and denied the allegations made against the petitioner in the show cause notice.
7. Taking note of the respective submissions made across the Bar, a reference to Section 122A of the Customs Act is worthwhile, which read thus:
122A. Adjudication procedure.- (1) The adjudicating authority shall, in any proceeding under thus Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. W.P.(C). No.8301 of 2017 10
(2) The adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing.
Provided that no such adjournment shall be granted more than three times to a party during the proceeding.
Therefore, it can be seen, there is a clear stipulation made thereunder, disabling the 2nd respondent from granting more than three adjournments during the entire course of the proceeding. On a perusal of Ext.P6 order, which is discussed above, it is unequivocally clear, four opportunities were provided by the 2nd respondent to the petitioner to file objection and contest the proceedings. It is also clear that, while granting adjournments, sufficient time was granted to the petitioner to file his objection and contest the proceedings. In the 3rd posting also, counsel sought time and thereafter it is seen from the earlier part of sub paragraph 2.1 that, the last adjournment date is recorded as 5.1.2017, even though the date is correctly spelt out in the later part of the said paragraph as 6.1.2017.
8. Even though learned Senior Counsel has heavily relied W.P.(C). No.8301 of 2017 11 on the mistake of the date of last posting, to contend that there is no application of mind for the 2nd respondent while passing the order, what I could find is that, the date is incorrectly mentioned by the 2nd respondent. This is more so, since the date of hearing mentioned in Ext.P2 is also 6.1.2017. Moreover, the decision relied on by the learned Senior Counsel is based on Section 24 of the Arbitration and Conciliation Act, wherein exclusive parameters are provided in order to proceed with the arbitration after issuing necessary notice. Such eventuality is not available so far as the provisions of the Customs Act is concerned. Therefore, the facts and circumstances in the judgment relied on by the learned Senior Counsel is not applicable to the facts and circumstances of this case. Merely because a request in that regard was made in Ext.P2, 2nd respondent is duty bound to act in accordance with law.
9. Yet another contention advanced by the learned Senior Counsel is that, as per Section 122A(2) of the Customs Act, the adjudicating authority is vested with powers to provide time, from time to time to the parties or any of them, if sufficient cause is shown and adjourn the hearing for reasons to be recorded in W.P.(C). No.8301 of 2017 12 writing. In that view of the matter, circumscribing such power by the proviso cannot be sustained legally. A reference to the real import of a proviso, in this context, would be worthwhile and relevant. I have come across the judgment of the Apex Court in Satnam Singh v. Punjab & Haryana High Court [(1997) 3 SCC 353], wherein, intricacy of a proviso was considered and held that, a proviso has to be strictly construed in as much as it carves out an exception to the general rule and the general rule enacted in the main part is not to be unduly restricted by expanding the content of the proviso which is intended to carve out the exception from the general rule.
11. Therefore, taking note of the facts and circumstances of the case and co-relating the same with the principles contained under Section 122A, it can be seen that, sufficient opportunity was provided o the petitioner as per proviso to sub-section 2 of Section 122A. So far as the statutory authority is concerned, the statutory authority is duty bound to act within the fours of the provisions of the statute. Therefore, it cannot be said that, 2nd respondent has committed any illegality or arbitrariness declining the request made in Ext.P2 application submitted by W.P.(C). No.8301 of 2017 13 the counsel for petitioner on 5.1.2017. The same was the 4th opportunity. However, learned Senior Counsel has also a contention that, since the 4th opportunity was given by the 2nd respondent absolutely bearing in mind that, he is vested with sufficient powers to grant adjournments as per sub-section 2 of Section 122A and yet another opportunity should also have been granted by the 2nd respondent.
12. However, in my considered opinion, opportunity was provided to the petitioner, in accordance with law to contest the proceedings but the same was not utilized by the petitioner. That apart on a reading of Ext.P6, it is clear that, Ext.P6 is passed in a comprehensive manner against 58 persons involved in the alleged smuggling activity narrating the sequence of events and therefore, singling out the petitioner from that process is next to impossibility. That apart, the nature of involvement of the petitioner and the evidence were taken into account by the 2nd respondent while passing the order. Therefore, the order is a speaking one and the petitioner is also left with a remedy to prefer an appeal as provided under the provisions of the Customs Act, 1962. Merely because a W.P.(C). No.8301 of 2017 14 stipulation is contained under Section 129A of the Customs Act to pay the duty or part of it as a condition precedent, it cannot be termed as a circumstance enabling the petitioner to assail the order passed by the 2nd respondent on the ground of alleged violation of principles of natural justice .
13. Therefore, I am of the considered opinion, Ext.P6 order passed by the 2nd respondent, so far as concerning the petitioner does not suffer from the vice of illegality, arbitrariness or unfairness warranting interference of this court exercising the power of judicial review under Article 226 of the Constitution of India.
Upshot of the above discussion is, writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE smv 01.04.2017