Calcutta High Court (Appellete Side)
Vijay Sajnani & Another vs Union Of India & on 28 March, 2012
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
3 28.3.12 W.P.5090(W)of 2012
sn
VIJAY SAJNANI & ANOTHER VS. UNION OF INDIA &
ORS.
Mr. Sujay Kantawala
Mr. Supratim Laha
...for the petitioners
Mr. R. Bharadwaj
Mr. K.K. Maity
..for the respondents
This writ application is directed against the summons dated February 14, 2012, February 15, 2012, February 21, 2012 and March 6, 2012 issued by the respondent no.3 in exercise of his power conferred by Section 108 of the Customs Act, 1962 for alleged evasion of customs duty by the petitioners for importing 'Betel Nuts' from Bangladash through Petrapole Border lying and situated within the State of West Bengal.
A preliminary objection is raised by the learned Advocate appearing on behalf of the respondents with regard to maintainability of this writ application. According to him, this Court has no territorial jurisdiction to entertain this writ application. It is submitted by him that 2 the registered office of the Company of the petitioners, office of the respondent no.2, who issued the summons under reference, are lying outside the territorial jurisdiction of this High Court. According to him, the initiation of any proceeding under Section 28 of the Customs Act, 1962 is yet to be decided by the respondent authority. Only the actions in issuing the summons under reference and collection of documents and recording of evidences in exercise of power conferred by Section 108 of the Customs Act, 1962 are under challenge in this writ application.
Necessary to point out here the question of obtaining approval from the appropriate Magistrate or its jurisdiction has not yet arrived at in this case and adherence to the provisions of Section 155(2&3) is under challenge in this writ application. The question of propriety of the decision making process of the respondent
authority of adhering to the provisions of 3 Section 155(2&3) can only be taken up for consideration by this Court if this Court has territorial jurisdiction to take up that issue.
It is submitted by Mr. Sujay Kantawala, learned Advocate appearing on
behalf of the petitioners that the cause of action, meaning thereby importing of 'Betel Nuts' took place within the territorial jurisdiction of this High Court and Petrapole Border is involved for importing 'Betel Nuts'. It is also submitted by him that in the event any proceeding is initiated for adjudication of the allegations raised by the summons under reference, the same will take place within the territorial jurisdiction of this High Court. According to him, this Court has the territorial jurisdiction to entertain this writ application. It is also submitted by him that in the event any criminal proceeding is to be initiated in this matter then authorization has to be obtained from the office situated within the territorial 4 jurisdiction of this High Court. Mr. Kantawala relies upon the decision of Union of India Vs. Ram Narain Bishwanath reported in (1998) 9 SCC 285.
I have heard the learned Counsel appearing for the respective parties on the preliminary objection and I have given my thoughtful consideration to the objection raised on behalf of the respondents. Admittedly, the registered office of the petitioners is lying and situated outside the territorial jurisdiction of this High Court. It is also not in dispute that the office of the respondent no.2, who issued the summons under reference, is lying and situated at outside the territorial jurisdiction of this High Court. Admittedly, the process of collecting the documents and recording of the evidences on the basis of the summons under reference will take place outside the territorial jurisdiction of this High Court. The question of evading customs duty is involved in the summons under reference but 5 the location of the border has no role to play with regard to the decision making process of the respondent authority in connection with the summons in question. The question of adjudication of the issue involved in the summons under reference depends upon the decision of the respondent no.2 after issuing show cause notices and taking further steps in the matter, if any. Therefore, the office of any respondent authority which is to play any role in the decision making process in connection with the summons under reference does not situate within the territorial jurisdiction of this High Court. Therefore, this Court has no territorial jurisdiction to take up this matter.
Reference may be made to the decision of Oil & Natural Gas Commission Vs. Utpal Kumar Basu, reported in (1994) 4 SCC 711 and the relevant portion of the above decision is quoted below :-
"5. Clause (1) of Article 226 begins with a non obstante clause - notwithstanding anything in Article 32 - and provides that every High Court shall have 6 power "throughout the territories in relation to which it exercises jurisdiction", to issue to any person or authority, including in appropriate cases, any Government, "within those territories"
directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under Clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the clause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories."
I do not find that the decision of Union of India Vs. Ram Narain Bishwanath helps the petitioner in any way because in that case adjudication of a proceeding by the Customs, Excise and Gold (Control) Appellate Tribunal on the issue of importing goods on the basis of fictitious licence was for consideration before this High Court. The Hon'ble Supreme Court held that the High 7 Court situated within a territory within which alleged offence took place had the territorial jurisdiction to take up this matter. Therefore, in view of the distinguishable fact and circumstances of this case, that does not help the petitioners in any way.
In view of the discussions and
observations made hereinabove, this writ
application is dismissed.
This order will not prevent the
petitioners from challenging the summons
under reference before the appropriate forum of law.
There will be however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta,J) 8 9 10