Bombay High Court
Union Of India vs Mr.Zohar Taherali Dalal And Others on 30 March, 2010
Author: K.K.Tated
Bench: V.C.Daga, K.K. Tated
*1*
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.668 OF 2000
with
CIVIL APPLICATION NO.2379/2005
Union of India.
Through the Commissioner of Customs(P). ..Petitioner
-VERSUS-
Mr.Zohar Taherali Dalal and others. ..Respondents
ig ...........
Mr.P.S.Jetly, for the Petitioner.
Mr.V.M.Advani, for the Respondent No.1.
Mr.A.M.Sachwani, for the Respondent No.2.
..........
CORAM : V.C.DAGA & K.K. TATED, JJ.
(Dated 30th March, 2010)
JUDGMENT (Per K.K.Tated, J):
1 Heard the learned counsel for the respective parties. 2 By this petition under Articles 226 and 227 of the Constitution of India r/w Section 130 of the Customs Act, 1962, the Petitioner/Revenue challenges the orders passed by the Customs, Excise & Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (in short CEGAT) dated 17.01.1998 passed in Appeals Nos. 178/1997 and 249/1997 and dated 15.05.1998 passed in reference application.
THE FACTS 3 The Respondent No.1 is NRI and the Respondent No.2 ::: Downloaded on - 09/06/2013 15:46:24 ::: *2* is the Customs Officer. It is the case of the Petitioner/Revenue that the Respondent No.1 was involved in smuggling foreign currency of US Dollars 40,000 equivalent to Indian Rs.13,30,000/-
approximately, sometime on 12.10.1995 in contravention of Sections 111, 113, 114, 118 and other Sections of the Customs Act, 1962 read with Section 13(2) of the Foreign Exchange Regulation Act, 1973. The Respondent No.2 is an officer of the Customs who prima facie alleged to have helped the Respondent No.1 in fradulently procuring the currency declaration form dated 18.09.1995 for US dollars 40,000 without actually importing the same. It is the case of the Petitioner that on 12.10.1995 the officers of the Customs Preventive Commissionerate, Mumbai pursuant to a specific prior information intercepted the Respondent No.1 i.e. Mr.Zohar Taherali Dalal, the holder of Indian Passport issued in Dubai on 11.12.1993 after he had cleared the immigration and customs for the purpose of boarding flight to Dubai, foreign currency of US Dollars 40,000 was found in his possession.
4 It is the case of the Petitioner that the show-cause notices dated 08.04.1996 were issued to the Respondents Nos.1 and 2. In reply thereto, the Respondents Nos.1 and 2 filed their reply dated 09.05.1996 and 29.05.1996 respectively. The Respondents Nos.1 and 2 cross-examined the various officers including the Investigating Officer.
5 After following due process of law, the Adjudicating Authority viz. the Commissioner of Customs (Preventive) passed the order-in-original dated 17.12.1996 confiscating the foreign currency worth US dollars 40,000 along with handbag used for carrying the currency under Section 113(d) of the Customs Act, 1962 and imposing a personal penalties of Rs.10 Lacs and Rs.5 Lacs ::: Downloaded on - 09/06/2013 15:46:24 ::: *3* on the Respondents Nos.1 and 2 respectively under Section 114(1) of the Customs Act, 1962.
6 Against the order-in-original dated 17.12.1996, the Respondents Nos.1 and 2 preferred the appeals bearing Nos.
178/1997 and 249/1997 before the CEGAT. The said appeals were allowed by the CEGAT vide its order dated 17.01.1998 and the order-in-original dated 17.12.1996 was set aside.
7 Being aggrieved by the aforesaid order dated 17.01.1998 passed in the appeals, Reference Application under Section 130(1) of the Customs Act, 1962 was filed by the Petitioner/Revenue before the CEGAT requesting to refer the following questions of law for the opinion of this High Court:-
(1) Whether the so called retraction of statement dated 13.10.1995 would wipe out the original statement completely and more so when the statement given by the accused on 12th and 13th are spontaneous statement and therefore, admissible in terms of the Tribunal's decision reported in 1986 (25) ELT 541 and 1986(25) ELT 413?
(2) Whether it was permissible for the Tribunal to rely on this part of the additional evidence without observing proper procedure in terms of Rule 23 of the CEGAT procedure rule and in coming to the decision of exonerating both the accused in its impugned order and whether the findings based on this fact would be hit by rule 23 of the CEGAT Procedure Rules?
(3) Whether on the basis of the facts and circumstances highlighted in the statement of facts in this application it was proper and legal to come to a logical conclusion that the Department has not adduced evidence sufficient to raise a presumption against the accused and in favour of the Department's findings in the adjudicating order?
::: Downloaded on - 09/06/2013 15:46:24 :::*4* 8 The CEGAT vide its order dated 15.05.1998 dismissed the Reference Application holding that no question of law arises for referring it to the High Court.
9 Thereafter, the Respondent No.1 filed several applications with the Petitioner/Revenue for return of the confiscated currency as well as pre-deposit which he had made at the time of preferring the appeal. Inspite of several applications, the Petitioner did not take any action. The Respondent No.1, therefore, filed Misc. Application dated 12.10.1999 before the CEGAT under Rule 41 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 with following prayers:-
"(a) The respondent be directed to strictly comply with the order No.173& 174/98/WZB/C-II dated 17.01.1998 passed by this Hon'ble Tribunal and return the foreign currency of US $ 40,000 forthwith to the appellant.
(b) The respondent be directed to pay interest at the official rate on the above mentioned amount from the date of passing of the order i.e. 17.01.1998 passed by the Hon'ble Tribunal till the date of actual payment made to the appellant.
(c) Contempt notice be issued against the respondent for non-compliance of the order passed by this Hon'ble Tribunal and suitable action be taken as a consequence thereof.
(d) Such other incidental orders and reliefs as may be necessary, keeping in mind the facts and the circumstances of the present case."
10 The CEGAT vide its order dated 04.01.2000 allowed the Misc. Application filed by the Respondent No.1 and directed the Commissioner of Customs (Preventive) to implement the order dated 17.01.1998 forthwith and report the compliance by 15.02.2000.
::: Downloaded on - 09/06/2013 15:46:24 :::*5* 11 Instead of implementing the order dated 17.01.1998 passed by the CEGAT, the Petitioner preferred the present Writ Petition on 13.01.2000.
PRELIMINARY OBJECTION 12 Mr.Advani, learned counsel appearing for the Respondent No.1, raised a preliminary objection about maintainability of the present Writ Petition on the ground that under Section 130(3) of the Customs Act, 1962 if the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Commissioner of Customs may within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it.
However, in the present case no such application under Section 130(3) of the Customs Act, 1962 was made to the High Court by the Petitioner/Revenue within six months from the date of order dated 15.05.1998. In fact the present petition has been filed nearly two years after the order and that too, only after the CEGAT passed further order dated 04.01.2000 directing the Revenue to comply the order dated 17.01.1998. In these circumstances, Mr.Advani submitted that the Petitioner ought to have filed an application under Section 130(3) of the Customs Act, 1962 within six months from the date of receipt of the order dated 15.01.1998. This is specific alternate remedy provided under the Act which till today the Petitioner has not availed. Therefore, the present Writ Petition is not maintainable on this ground alone and the same is liable to be dismissed. In support of his preliminary objection, he referred to ::: Downloaded on - 09/06/2013 15:46:24 ::: *6* the Section 130 of the Customs Act, 1962, during the relevant period, which reads thus:-
"130. Statement of case to High Court.
(1) The Commissioner of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under section 129B (not being an order relating, among other things to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment) by application in such form as may be specified by rule made in behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.
(2) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has be made, may, notwithstanding that he may not have filed such an application, file within forty-
five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub-section (1).
(3) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Commissioner of Customs, or, as the case may be, the other party may, within six months from the date on which he ::: Downloaded on - 09/06/2013 15:46:24 ::: *7* is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.
(4) Where in the exercise of its powers under sub-section (3), the Appellate Tribunal refuses to state a case which it has been required by an applicant to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him shall be refunded."
13IN REPLY to the preliminary objection raised by the Respondent No.1, Mr.Jetly, learned counsel for the Petitioner/Revenue submitted that as the order passed by the CEGAT is without considering the facts on record, the Petitioner can challenge the same under Articles 226 and 227 of the Constitution of India. He further submitted that the present Writ Petition is pending for last ten years and therefore, at this stage, the Court should not dismiss the same on technical ground of alternate remedy. For this proposition, Mr.Jetly pressed into service the judgment in the matter of Dhampur Sugar Mills Ltd. Vs. Union of India reported in 2000(122) ELT 333 (SC) wherein the Apex Court held that when the petition is pending for seven years it is little harsh to relegate the Petitioner therein to the alternate remedy. Paragraph No.3 of the said judgment reads thus:-
"3. The petition had been pending for seven years and it does seem a little harsh to relegate the appellant after seven years to the alternate remedy. The learned Additional Solicitor General fairly states, in the circumstances, that the order under challenge may be set aside and the writ petition ::: Downloaded on - 09/06/2013 15:46:24 ::: *8* (Civil Misc. Writ Petition No.747 of 1962) may be restored to the file of the High Court to be heard and disposed of on merits. This is appropriate and it should be done expeditiously."
14 Mr.Jetly, further submitted that in alternative the Petitioner already preferred Civil Application No.2379/2005 for allowing the Petitioner to treat or convert the present Writ Petition as Reference Application under Section 130(3) of the Customs Act, 1962. Prayer clauses (b), (c) and (d) of the said Civil Application read as under:-
"(b) in the alternative and without prejudice, this Honourable Court may be pleased to treat/ convert the above petition as a reference application filed under Section 130(3) of the Customs Act, 1962.
(c) that this Honourable Court may be pleased to condone the delay,
(i) in filing the petition/reference application from the date of receipt of the order till the date of filing of above petition/ reference application excluding the time permitted by the Act.
(ii) from the date of filing of the above petition till the date of converting the same into a reference application.
(d) that this Honourable Court may be pleased to direct the Appellate Tribunal to state the case and to refer the questions of law or such other question/ questions of law to it for adjudication/ determination."
ALTERNATE SUBMISSION 15 Mr.Jetly, learned counsel for the Petitioner further submitted that if a plea of alternate remedy is upheld by this Court as raised by the Respondent No.1, in that eventuality the present petition may be treated as Reference Application under Section 130(3) of the Customs Act, 1962.
::: Downloaded on - 09/06/2013 15:46:24 :::*9* 16 IN REPLY, Mr.Advani submitted that as the Petitioner preferred Civil Application No.2379/2005 for allowing them to treat or convert the present petition as Reference Application under Section 130(3) of the Customs Act, 1962, it shows that the Petitioner has abandoned its right to proceed with the Writ Petition filed under Articles 226 and 227 of the Constitution of India against the orders dated 17.01.1998 and 15.05.1998. At any rate, according to him, this petition is not tenable. In support of his submission, he relied on the judgment in the matter of Commissioner of Central Excise, Meerut Vs. Century Laminating Company reported in 2005(183) ELT 16 (Allahabad). In that case, the Allahabad High Court held that the writ petition was not maintainable when alternative remedy i.e. appeal was provided under the Act. In that case the Tribunal's order had attained finality since the Petitioner therein had neither filed Reference Application under Section 35(G) of the Central Excise Act, 1944 nor filed an application for recalling or rectification of the order, it was, therefore, held that the Petitioner could not be permitted to challenge the order of Tribunal after lapse of five years by filing the Writ Petition under Article 226 of the Constitution of India. 17 Mr.Advani further submitted that in any case the present Writ Petition is not maintainable under Articles 226 and 227 of the Constitution of India because the alternate remedy by way of Reference Application provided under the Act was not availed by the Petitioner. Not only that but after the CEGAT passed the order dated 04.01.2000 under Rule 41 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 for compliance of the order dated 17.01.1998, the Petitioner filed the Writ Petition on 13.01.2000 after a period of two years from the ::: Downloaded on - 09/06/2013 15:46:24 ::: *10* day the order dated 15.05.1998 was passed, as such, in his submission, this petition is not bonafide and not a fit case to invoke writ jurisdiction of this Court.
CONSIDERATION OF OBJECTION 18 After hearing both the sides at length, we are of the opinion that the present Writ Petition under Articles 226 and 227 of the Constitution of India challenging the orders dated 17.01.1998 and 15.05.1998 is not maintainable in view of the alternate remedy available to the Petitioner under the Customs Act, 1962. If the reasons given by the Petitioner were to be accepted as valid basis for exercising our judicial discretion to entertain this petition on merits under extra-ordinary jurisdiction under Article 226 of the Constitution of India, then the provision for reference would be rendered nugatory. A person aggrieved by the final finding of the appellate authority would despite express provision of reference, will invoke writ jurisdiction with impunity.
19 In the present case, there was a specific provision under Section 130(3) of the Customs Act, 1962 for filing the reference application in the High Court within six months against the order of refusing to refer the questions of law to the High Court. The Allahabad High Court in the matter of Century Laminating Company (supra) held that when the alternate remedy is available, writ petition should not be entertained as a matter of course. 20 It is to be noted that it is not the case that the question which is arising from the order of Tribunal raised in the present petition cannot be raised in the reference application and/or appeal. When a forum is provided under the statute for filing of the reference application and/or appeal, there is no reason to ::: Downloaded on - 09/06/2013 15:46:24 ::: *11* supersede the said provision and to file the Writ Petition asking the Court to adjudicate the matter in Writ Petition under Article 226 of the Constitution of India. The Apex Court time and again held that the High Court should not entertain the Writ Petition when the statutory remedy is available to the parties in the statute, unless exceptional circumstances are made out. When under the statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petition can be entertained. But normally, the High Court should not entertain writ petition unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the authority, something which would show that it would be a case of palpable injustice to the writ petition to force him to adopt the remedies provided by the statute.
21 The Apex Court in the matter of Uttaranchal Forest Development Corporation and another Vs. Jabar Singh and others, reported in (2007) 2 SCC 112, held that as a matter of course the High Court should not entertain the writ petition when alternate remedy is available under the statute. The judgment reads thus:-
(Head Note-E) "E. Constitution of India- Art.26- Alternative remedy- Available under statute- High Court should not ordinarily entertain the writ petition except where a very strong case is made out for departure from the general rule- Dispute relating to enforcement of workmen's right and employer's obligation under Industrial Disputes Act, 1947- Even though specific remedy provided under the Act, workmen instead of availing the same, directly approached High Court under Art.226- No exceptional circumstances shown for taking such a course- Held: High Court not justified in ::: Downloaded on - 09/06/2013 15:46:25 ::: *12* entertaining the writ petition- Writ Petitioners, who have not invoked jurisdiction of Labour Court/ Industrial Tribunal under the Act, not entitled to any relief in the writ petition."
22 In the case of K.K.Shrivstava v. Bhupendra Kumar Jain, 1977 U.J. (SC) 344, three Judge Bench of the Apex Court held as under:-
"4. It is well settled law that while Art.226 of the Constitution confers a wide power on the High Court there are equally well settled limitation which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where is an appropriate or equally efficacious remedy the Court should keep its hands off....."
23 In the case of Naib Subedar Lachhman Dass v. Union of India, 1977 U.J. (SC) 355, three Judge Bench of the Apex court again ruled that in writ petition filed after a gross delay for which there is no satisfactory explanation, the High Court should not exercise writ jurisdiction.
24 In the case of P.S.Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271, the Apex Court ruled as under:
"It is not that there is any period of limitation for the Courts to exercise their powers under Art.
226, nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Art.226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to put forward stale claims and try to unsettle settled matters."::: Downloaded on - 09/06/2013 15:46:25 :::
*13* 25 In Rattan Singh & ors. v. State of Punjab & Ors., 1979 U.J. (SC) 723, the scheme of consolidation of holdings relating to Village Bhawanipur, Tahsil Garhsankar, District Hoshiarpur, Punjab prepared by the Consolidation Officer, confirmed by the Settlement Officer on February 11, 1964 was sought to be challenged in the year 1968 in the writ petition. The writ petition was dismissed by the High Court on the ground of delay and latches. The Apex Court in appeal confirmed that order holding that the High Court was justified in dismissing the writ petition.
26 In any case, in the present matter, the Petitioner having realized the objection raised by the Respondents in their affidavit in reply, preferred Civil Application No.2379/2005 praying to allow them to treat/ convert the present petition into a reference application under Section 130(3) of the Customs Act, 1962. This itself shows that the Petitioner waived their challenge to the orders dated 17.01.1998 and 15.05.1998 under Articles 226 and 227 of the Constitution of India and therefore, the Writ Petition deserves to be dismissed on this count alone.
CAN WRIT BE TREATED AS REFERENCE PETITION 27 The Petitioner's Civil Application No.2379/2005 praying to allow them to treat/convert the writ petition into a Reference Application under Section 130(3) of the Customs Act, 1962 cannot be allowed since it is barred by limitation. In the present case, the CEGAT passed an order on 15.05.1998 refusing to refer the questions of law to this Court. The said order was received by the Petitioner on 26.05.1998, thereafter, a letter dated 04.06.1988 was addressed to the Deputy Secretary & Legal Adviser, ::: Downloaded on - 09/06/2013 15:46:25 ::: *14* Ministry of Law to give legal advice. One Mr.R.Raghupati, Additional Legal Adviser, Ministry of Law, Government of India gave advice which was received by the Petitioner on 14.10.1998.
Thereafter, the Petitioner appointed counsel on 15.12.1998 for filing the present Writ Petition. The counsel appointed by the Petitioner drafted the writ petition on 25.01.1999 and the same was forwarded to the Department on 23.04.1999 for correction. A fair copy of the petition settled by the counsel was collected by the Department for fresh typing on 25.10.1999 and thereafter, the present Writ Petition came to be filed on 13.01.2000. However, as per the provisions of Section 130 of the Customs Act, 1962, the limitation for preferring reference in the High Court is of six months. There is no provision under the Customs Act, 1962 for condonation of delay in filing the reference in the High Court. The Petitioner has also not placed on record any authority to show that the delay in preferring the reference application under Section 130(3) of the Customs Act, 1962 can be condoned. When the Department received the copy of order dated 15.05.1998 on 26.05.1998, they filed the present Writ Petition on 13.01.2000 i.e. after the delay of more than two years. Not only this but the Petitioner preferred the Civil Application No.2379/2005 on 08.09.2005 for treating the writ petition as reference application under Section 130(3) of the Customs Act, 1962 and therefore, there is delay of more than seven years.
28 The Apex Court, in the matter of Commissioner of Customs & Central Excise Vs. Hongo India Pvt.Ltd. reported in 2009(236) ELT 417 (SC), held that Section 5 of the Limitation Act is not applicable in preferring the reference application. Head note- A of the said judgment reads thus:-
::: Downloaded on - 09/06/2013 15:46:25 :::*15* "Reference to High Court- Limitation- High Court's powers- Whether High Court empowered to condone delay in filing reference application- Additional period provided in case of appeal to Commissioner (Appeals) and revision by Central Government - Appellate Tribunal empowered to condone delay if sufficient cause for delay shown- For appeal and reference application before High Court, 180 days only provided by Parliament and no further period for filing appeal or making reference to High Court mentioned- Section 5 of Limitation Act, 1963 excluded in the absence of clause condoning delay by showing sufficient cause after prescribed period- Time limit prescribed in Section 35H of Central Excise Act, 1944 absolute and not extendable by court under Section 5 of Limitation Act, 1963. [paras 2, 12, 18, 19, 20 & 21]"
29 In view of the above findings it can be safely said that when there is no provision to condone the delay in preferring the reference application in this High Court, the Civil Application No. 2379/2005 which has been filed after the expiry of limitation period cannot be allowed and the same also deserves to be dismissed.
30 In view of the above facts and circumstances of the case, it is not necessary to examine the correctness of the impugned orders of the Tribunal on merits. However, since the parties have also addressed us on merits of the matter, we propose to record our finding even on merits.
SUBMISSIONS ON MERIT 31 Mr.Jetly while taking us on merits of the matter urged that the Petitioner/Revenue had received information on 12.10.1995 that the Respondent No.1 will be smuggling near about 30,000 to 40,000 US dollars to Dubai. Pursuant to the said information, the officers of Petitioner took search of the Respondent No.1's handbag in presence of the two independent witnesses, ::: Downloaded on - 09/06/2013 15:46:25 ::: *16* which resulted in recovery of one white coloured envelope addressed to Mr.Zohar T. Dala and one brown coloured envelope. Upon opening the said two envelopes, the same were found to contain 40,000 US dollars of 100 denomination each. This foreign currency of 40,000 US dollars equivalent to Indian Rs.13,30,000/- approximately was recovered and the same was seized under the Panchanama under the reasonable belief that the said currency notes were attempted to be smuggled out of India and hence, liable to be confiscated.
32 Mr.Jetly urged that the statement of the Respondent No.1 was recorded before the Superintendent of Customs, Mumbai under Section 108 of the Customs Act, 1962 wherein he inter-alia admitted recovery of 40,000 US dollars from his handbag and stated that on 12.10.1995 he was to depart to Dubai by Flight No.EK-501 and that he was carrying only his handbag.
33 Mr.Jetly, learned counsel for the Petitioner/Revenue submitted that though the Respondent No.1 retracted his statement later on but the same cannot be considered at the time of deciding the present case because the Apex Court in the matter of Vinod Solanki Vs. Union of India reported in 2009 (233) ELT 157 (SC) has held that the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors to arrive at a finding as regards to the voluntary nature of statement or otherwise of a confession which has been retracted. Mr.Jetly mainly relied on paragraph No.34 of the said judgment which reads thus:-
"34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in ::: Downloaded on - 09/06/2013 15:46:25 ::: *17* authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that is may appear to the court as such."
34 Mr.Jetly, learned counsel for the Petitioner further submitted that the Respondent No.1 could not establish the source from where he had procured such large sum of foreign currency even though no permanent source of income was available to him. He further submitted that during the course of investigation an attempt was made by the Respondent No.1 to show that the foreign currency seized was purchased from one firm viz. Ulmas Dubai Exchange Agency. When attempts were made by the Petitioner through the Indian diplomatic channel to confirm this fact with the said firm, but it did not yield any result and the said firm refused to reply to the queries raised by the Indian authorities. Mr.Jetly further submitted that it is mandatory for any passenger to produce the documentary evidence of its source of procurement when the amount exceeds 250 US dollars. In the present case, the Respondent No.1 failed to produce any cogent evidence to show how he procured 40,000 US dollars.
35 Mr.Jetly, learned counsel for the Petitioner/Revenue further submitted that the CEGAT failed to consider the various points logically dealt with in the order-in-original which were supported by the evidence on record. He further submitted that the ::: Downloaded on - 09/06/2013 15:46:25 ::: *18* CEGAT while allowing the appeals of the Respondents Nos.1 and 2 failed and neglected to consider that on 12.10.1995 the Customs Officers of Preventive Commissionerate, Mumbai pursuant to the specific prior information intercepted the Respondent No.1 after he cleared the immigration and customs for the purpose of boarding the flight to Dubai and the officers seized foreign currency of US Dollars 40,000 from his possession.
36 Mr.Jetly further submitted that one officer of the Customs i.e. the Respondent No.2 fraudulently managed the currency declaration form to support the Respondent No.1 for smuggling the said foreign currency. He further submitted that the currency declaration form was never executed by the Respondent No.1 when he arrived in India. He, therefore, urged that the impugned orders passed by the CEGAT dated 17.01.1998 and 15.05.1998 are liable to be set aside.
PER CONTRA- ON MERITS 37 Mr.Advani, learned counsel for the Respondent No.1 submitted that the Petitioner/Revenue failed to produce cogent evidence against the Respondent No.1 to show that he illegally brought 40,000 US dollars in India. According to him, when the Respondent No.1 arrived in India as per law he had executed the currency declaration form showing that he had brought 40,000 US dollars in India.
38 Mr.Advani further submitted that the Petitioner also filed a criminal complaint under Section 135(1)(a) r/w 135(1)(ii) of the Customs Act, 1962 and under Section 120-B of the Indian Penal Code, 1860 against the Respondents Nos.1 and 2 in the Court of the learned Chief Metropolitan Magistrate, Mumbai. In the said ::: Downloaded on - 09/06/2013 15:46:25 ::: *19* complaint, the Petitioner made an application for impleading one Mr.Solanke as accused No.3, however, the said application was rejected by the learned Metropolitan Magistrate vide order dated 10.04.2003 on the ground that there does not exist prima facie evidence to implead Mr.Solanke as accused No.3. Against this order dated 10.04.2003, the Petitioner/Revenue preferred Criminal Revision Application No.407/2003 in the Court of the learned Sessions Judge for Greater Mumbai, which also came to be dismissed vide order dated 13.08.2004.
39 Mr.Advani further submitted that in the aforesaid criminal case before the learned Metropolitan Magistrate, several witnesses were examined by the Petitioner. Inspite of examining several witnesses, the Petitioner failed to produce any cogent evidence on record against the Respondents Nos.1 and 2. Therefore, the learned Chief Metropolitan Magistrate, Mumbai vide judgment dated 15.02.2008 acquitted the Respondents Nos.1 and 2 of the said offences and also directed to release the foreign currency of 40,000 US dollars in favour of the Respondent No.1 after appeal period is over. Mr.Advani, therefore, submitted that acquittal of the Respondents Nos.1 and 2 after full fledged trial by the competent Court itself shows that the Petitioner falsely implicated the Respondent No.1 in the present case. The said order has achieved finality.
40 Mr.Advani further submitted that the officers of Petitioner brought on record bogus documents to falsely implicate the Respondent in the present case. According to him, on the basis of the endorsement on the Respondent No.1's passport, he cleared immigration on 11.10.1995 for boarding Flight No.EK-501. Similarly, the Respondent No.1's ticket also shows Flight No.EK-501 ::: Downloaded on - 09/06/2013 15:46:25 ::: *20* and departure time 0430 hours. However, the Petitioner prepared the Panchanama after 09:30 AM on 12.10.1995. This shows that the Petitioner prepared the false Panchanama immediately.
Mr.Advani further submitted that the officers of Petitioner placed on record the boarding pass of Flight No.EK-505 with departure time 09:45 AM. Not only that but no where the name of passenger i.e. Respondent No.1 was shown in the said boarding pass of Flight No.EK-505. This itself shows the manner in which the officers of Petitioner intentionally created the false case against the Respondent No.1.
41 Mr.Advani, learned counsel for the Respondent No.1 further submitted that the disciplinary proceedings were also initiated by the Petitioner against their officer i.e. Respondent No.2 Yogesh Kumar under Rule-14 of the CCS(CCA) Rules, 1965 wherein the Joint Commissioner of Customs (Vigilance), Mumbai held that the inquiry officer's observations were based solely on the retracted statements of the passenger i.e. Respondent No.1 and therefore, it was not necessary to impose major punishment on the Respondent No.2. Accordingly, the Joint Commissioner of Customs (Vigilance) vide order dated 20.01.2003 held as under:-
"It is therefore ordered that the pay of Shri Yogesh Kumar, Preventive Officer be reduced by two stages from Rs. 6,550/- to Rs.6,200/- in the time scale of pay of Rs.
5500-175-9000 for a period of two years with effect from 01.02.2003. It is further directed that Shri Yogesh Kumar, Preventive Officer will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his further increments of pay.
The period of suspension in respect of Shri Yogesh Kumar, Preventive Officer from 02.07.1996 to 05.08.1998 be treated as on duty except for the purpose of pay and allowances which is restricted to the amount of subsistence allowances paid to him."::: Downloaded on - 09/06/2013 15:46:25 :::
*21* 42 Mr.Advani, therefore, submitted that the Petitioner has also not taken any serious action against the Respondent No.2 Yogesh Kumar in the departmental inquiry.
43 Mr.Advani further submitted that the present petition raises several disputed questions of facts. A mere perusal of the petition will show that the Petitioner is only agitating the issues of facts which are disputed. According to him, under the Customs Act, 1962 the CEGAT is the last fact finding body and after considering all the facts and circumstances of the case, the CEGAT rightly passed the impugned orders on its own merits. Mr.Advani further submitted that the question of law which the Petitioner sought to raise in this petition is that the CEGAT has allowed the appeal merely because the Respondent No.1 has retracted his statement. A perusal of the impugned order dated 17.01.1998 itself shows that the CEGAT has not merely allowed the appeal on the basis of the retracted statement but on the contrary it is in the subsequent order dated 15.05.1998 the CEGAT was pained to point out that the Petitioner/Revenue has totally misunderstood the order-in-original because the order-in-original did not state or suggest or imply that the retraction statement of the Respondent No.1 would have effect of nullifying the admissions made in that behalf. On the basis of these submissions, Mr.Advani submitted that the Petitioner cannot challenge the disputed questions of facts under Article 226 of the Constitution of India and thus, the petition is liable to be dismissed with costs.
44 Mr.Sachwani, learned counsel for the Respondent No.2 adopted the submissions made by the learned counsel for the Respondent No.1 and also relied on the orders passed in the criminal proceedings.
::: Downloaded on - 09/06/2013 15:46:25 :::*22* FINDINGS ON MERITS 45 We have heard both the counsel at length and perused the documents on record. Firstly, petition is liable to be dismissed as it involves disputed questions of facts. But, even on the material available on record without raising any dispute with respect to that, the petition cannot succeed on merit for the reasons recorded hereinafter.
46 It is an admitted fact that the Respondent No.1 when arrived in India declared 40,000 US dollars by executing the currency declaration form. Though the Petitioner disputed genuineness of the said form, they failed to produce on record any cogent evidence in support of their say. It is to be noted that when the Respondent No.1 was leaving India on 12.10.1995, he produced the said currency declaration form and the same was accepted by the Petitioner. Apart from that during the course of investigation, the Petitioner failed and neglected to produce the original currency declaration form on record. The Petitioner relied on a photo-copy of the currency declaration form which was handed over by the Respondent No.1 on 12.10.1995 at the time of preparing Panchanama. This itself shows that the Petitioner failed and neglected to produce a cogent evidence on record to verify genuineness of the currency declaration form. Therefore, it is not possible to accept the stand of Petitioner that the currency declaration form produced by the Respondent No.1 is fabricated document.
47 It is to be further noted that in a criminal proceedings before the Chief Metropolitan Magistrate, Mumbai, the statements of several witnesses were recorded including Mohan Ramchandra ::: Downloaded on - 09/06/2013 15:46:25 ::: *23* Salunkhe, Superintendent of Customs, Mumbai (PW-6) wherein he stated in his examination-in-chief that the Respondent No.2 who was posted on counter No.9 on that day came to him and informed that one passenger had arrived by Emmirate Flight, standing at counter No.9 and brought 40,000 US dollars in currency form. The said witness further stated that the said passenger declared the foreign currency of 40,000 US dollars and the currency declaration form bears the signature of the said witness. In similar way, PW-7 Chaudhari also stated in his examination-in-chief that "one passenger by name Johar Ali Dalal came along with currency declaration form with 40,000 US dollars with him. He produced before me CD form and US dollars. I counted currency and handed over to my superior. I cancelled the currency declaration form. I dispatched it to Administration Office. I am shown the form. It is the same form it was produced before me by the passenger and it was sent to administration office by me." In similar way, other witnesses also admitted the fact about the currency declaration form and the currency brought by the Respondent No.1 when he arrived in India. This itself shows that the Respondent No.1 brought along with him the foreign currency as declared in the currency declaration form. Therefore, it is not possible to rely on the Panchanama which was prepared by the officers of Petitioner on 12.10.1995 in which several incorrect statements were recorded such as flight number, timing of flight, confession of Respondent No.1 etc.. 48 The Respondent No.1 placed on record a photo-copy of the ticket which shows the Flight No.EK-501, departure time as 0430 and also shows OK status. If the ticket is of Flight No.EK-501, how the Petitioner brought on record the boarding pass of Flight No.EK-505 that too also without name of passenger. This itself ::: Downloaded on - 09/06/2013 15:46:25 ::: *24* shows that the Petitioner manipulated the boarding pass just to justify that they prepared the Panchanama immediately before 15 minutes of the departure time of Flight No.EK-505. On the basis of these admitted facts on record, it is not possible to hold that the Respondent No.1 has committed any offence in respect of smuggling of the foreign currency of 40,000 US dollars. 49 In view of the above facts and circumstances, there is no substance in the present Writ Petition and the same deserves to be dismissed with costs. Accordingly, we dismiss the present Writ Petition with costs. The Petitioner/Revenue is directed to pay a sum of Rs.15,000/- (Rupees Fifteen Thousands only) each to the Respondents Nos.1 and 2 towards costs of this petition, within a period of four weeks from the date of receipt of a copy of this order.
This costs is imposed on the Petitioner because the Petitioner has brought on record the bogus documents with intention to harass the Respondents Nos.1 and 2. One of such document is boarding pass of Flight No.EK-505. The Petitioner/Revenue is also directed to refund the amount of 40,000 US dollars along with interest @ 9% from the date of confiscation till its refund to the Respondent No.1, within a period of four weeks from the date of receipt of a copy of this order.
50 Accordingly, Writ Petition along with Civil Application are dismissed.
(K.K.TATED, J.) (V.C.DAGA, J.)
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