Bombay High Court
M/S. Chokshi Arvind Jewellers vs Union Of India And Ors on 20 September, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
1-WP-11660-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11660 OF 2023
M/s Chokshi Arvind Jewellers ..Petitioner
Vs.
Union of India & Ors. ..Respondents
__________
Mr. Sujit Sahoo i/b Mr. Rutuj Anand Warick, for Petitioner.
Ms. Ruju Thakker, for Respondent Nos.2 to 4.
__________
CORAM : G. S. KULKARNI &
JITENDRA JAIN, JJ.
DATE : SEPTEMBER 20, 2023. P.C.:
1. This petition under Article 226 of the Constitution, concerns the gold namely gold bars of net weight 741.40 grams of 24kt and gold coins of net weight 864.41 grams 22kt, having foreign markings and of the market value of Rs.96,91,965/-. Such gold was subject matter of seizure memo which was issued by Mr. Manish Kumar SIO / D-Cell dated 12 May 2023 (Exhibit-C).
2. According to the petitioner all documents in regard to the purchase of such gold by the petitioner from one Munira Zaheer Mamnoon, as also the statement of Mr. Munira was submitted to the said authority/ respondent on 2 May 2023 and 12 May 2023. The petitioner had also Kiran Kawre Page 1 of 5
-------------------------
September 20, 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 02:02:00 ::: 1-WP-11660-2023.odt furnished all necessary documents in regard to the value of the said goods that the said gold was stock in trade of the petitioner. The case of the petitioner is that no show cause notice was issued to the petitioner, as also the repeated requests made by the petitioner to release the seized gold were not responded. In this context, our attention is drawn to the petitioners letter dated 5 June 2023 and 25 July 2023 (Exhibit-D) as also to the subsequent letter dated 31 August 2023.
3. Learned counsel for the petitioner has drawn our attention to the letter dated 11 August 2023 (Exhibit-R) addressed to the petitioner in response to the petitioners letter dated 6 June 2023 and 25 July 2023, stating that in relation to the said seizure, a show cause notice has to be issued within the time specified under the provisions of Customs Act 1962. It was also recorded that after issuance of the show cause notice, the competent adjudication authority would decide the matter based on the submissions made by the owner of the seized goods. It was recorded that the said letter was issued with the approval of the competent authority. The signatory of the said letter is again Mr. Manish Kumar, Senior Intelligence Officer (SIO/D-Cell). For convenience, we extract the contents of the letter which reads thus:-
"Date 11 August 2023 To,
1) Shri Kapil Kumar Parekh 51/7, Shobhna building, Kiran Kawre Page 2 of 5
-------------------------
September 20, 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 02:02:00 ::: 1-WP-11660-2023.odt Sion Main Road, Sion West, Mumbai-22.
2) M/s Choksi Arvind Jewellers 105-107, Zaveri Bazr, Shaikh Memon Street, Mumbai 400002.
Subject: Gold consisting of 24 KT Gold Bars of net weight 741.140 grams and 22 KT Gold Coins of net weight 864.410 grams- reg.
Ref: Your letter dated 05.06.2023 and reminder letter dated 25.07.2023.
With reference to your above-mentioned letters, it is informed that the show cause notice has to be issued within the time specified under provisions of the Customs Act, 1962. Further, after the issuance of show cause notice, the competent adjudication authority decides the matter based on the submissions made by the owner of the seized goods.
2. This issues with the approval of competent authority.
Yours Sincerely (Manish Kumar) Senior Intelligence Officer"
(emphasis supplied)
4. With an apprehension that the respondents are likely to sell the goods, this petition was filed on 11 September 2023 and urgently moved before us, praying that the seizure memo dated 12 May 2023 issued by respondent No.4 be held illegal and be quashed and set aside, and for unconditional release of the said gold as seized by the respondent.
5. Learned counsel for the petitioner has contended that this is a case of blatant, arbitrary and illegal action on the part of the respondent Nos. 2 Kiran Kawre Page 3 of 5
-------------------------
September 20, 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 02:02:00 ::: 1-WP-11660-2023.odt to 4 of having exercising the power of search and seizure merely on suspicion and by which the stock in trade / gold from the petitioner's shop has been seized and was not being released despite repeated letters of the petitioner's.
6. On 11 September 2023 a praecipe came to be moved in the present proceedings seeking urgent orders on the ground that the petitioner has serious apprehension that the seized gold would be disposed of by the respondent without giving an opportunity of hearing to the petitioner.
7. Accordingly, we had granted circulation of the matter. The proceedings were served on the respondents on 12 September 2023.
8. Today, learned counsel for the respondents, on instructions, submits that the seized gold has already been disposed of by the respondents on 1 September 2023 i.e. prior to the filing of this petition which came to be filed on 11 September 2023 and before the petitioner could seek circulation of the present proceedings.
9. In the aforesaid circumstances, as urged on behalf of the petitioner, the following issues arise for our consideration :-
(i) whether the action of the respondents to sell the gold as seized by the petitioner, is legal and valid and more particularly taking into consideration the letter dated 11 August 2023 addressed by Mr.Manish Kumar, Senior Intelligence Officer of the Directorate of Revenue Kiran Kawre Page 4 of 5
-------------------------
September 20, 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 02:02:00 ::: 1-WP-11660-2023.odt Intelligence to the petitioner which refers to issuance of a show cause notice in dealing with the seized goods;
(ii) under what provisions of law and / or any notification goods which are not perishable, an action for sale can be justified;
(iii) if such an action of sale is held to be illegal, what should be the course of action, the law would mandate to be taken against the concerned officers so as to compensate the petitioner for the loss.
10. We accordingly direct the respondents and more particularly, the officers who were dealing with the matter i.e. respondent No.4 - Manish Kumar as also respondent No.2 - Additional Directorate (General) to place on record a reply affidavit.
11. Let both the affidavits be placed on record on or before the adjourned date of hearing so that the parties can be heard and further appropriate orders can be passed.
12. Stand over to 4 October 2023 (HOB).
[JITENDRA JAIN, J.] [G. S. KULKARNI, J.] Kiran Kawre Page 5 of 5 ------------------------- September 20, 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 02:02:00 :::