Kerala High Court
Mohammed Ayyoob vs Inspector Of Customs (Preventive ... on 22 May, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941
WP(C).No. 13888 of 2019
PETITIONER:
MOHAMMED AYYOOB,
AGED 23 YEARS
S/O. ABDULLA, RAMLA MANZIL, NAYANARMOOLA, MUTTATHODI
P.O, KASARGOD 671 123.
BY ADVS.
SRI.S.KABEER
SRI.P.E.SAJAL
RESPONDENTS:
1 INSPECTOR OF CUSTOMS (PREVENTIVE OFFICER)
AIR INTELLIGENCE UNIT, OFFICE OF THE JOINT
COMMISSIONER OF CUSTOMS, COCHIN INTERNATIONAL
AIRPORT, NEDUMBASSERY., COCHIN 683585.
2 THE SUPERINTENDENT OF CUSTOMS,
OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS,
COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, COCHIN
683585
3 THE DEPUTY COMMISSIONER OF CUSTOMS,
OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS,
COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, COCHIN
683585
SMT. I SHEELA DEVI-SENIOR SC FOR CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2019, ALONG WITH WP(C).13886/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941
WP(C).No. 13886 of 2019
PETITIONER:
SIDIQUL AKBAR,
AGED 23 YEARS
S/O. ZUHARA, N.A COMPOUND,PADINHARMOOLA, VIDYANAGAR
P.O, KASARGOD 671 123
BY ADVS.
SRI.S.KABEER
SRI.P.E.SAJAL
RESPONDENTS:
1 INSPECTOR OF CUSTOMS(PREVENTIVE OFFICER)
AIR INTELLIGENCE UNIT, OFFICE OF THE JOINT
COMMISSIONER OF CUSTOMS, COCHIN INTERNATIONAL
AIRPORT, NEDUMBASSERY, COCHIN 683585.
2 THE SUPEREINTENDENT OF CUSTOMS OFFICE
OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS,
COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, COCHIN
683585.
3 THE DEPUTY COMMISSIONER OF CUSTOMS ,
OFFICE OF CUSTOMS, COCHIN INTERNATIONAL AIRPORT,
NEDUMBASSERY, COCHIN 683585.
SMT. I SHEELA DEVI-SENIOR SC FOR CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2019, ALONG WITH WP(C).13888/2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019
3
JUDGMENT
[ WP(C) 13888/2019 ,WP(C).13886/2019 ] These two writ petitions are being considered together because of the analogous nature of the pleadings and because the reliefs sought for being virtually identical.
2. The pleadings on record show that the petitioners in these two cases were intercepted by the 1st and 2nd respondents, who are the competent Air-Customs Officers, on suspicion that they were carrying foreign currency unauthorizedly. It is on record that about $ 10,000 each were recovered from the possession of the petitioners, which were not declared by them validly and that respondents 1 and 2, therefore, initiated action as per law.
3. The petitioners allege that even though respondents 1 and 2 may be legally competent to initiate action under the Customs Act, they have now illegally seized and retained their passports without any legally justified reason or jurisdiction and therefore, that they had approached the 3rd respondent with a representation requiring that the same be released to them. The petitioners say that the WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019 4 amounts found from their custody can be explained by them through valid documents; but that if their passports are illegally detained in the manner as it is presently done, their lives would be destroyed because their employment abroad would stand terminated. The petitioners, therefore, pray that the respondents 1st and 2nd be directed to return their passports to them, on the specific legal contention that they have no jurisdiction to retain the same.
4. Smt. Sheela Devi I, the learned Senior Standing Counsel for Customs submits that subsequent to the interception of the petitioners and the discovery of unauthorised amounts from their possession, Ext.P1 order in both cases were issued against them, imposing a penalty of Rs.1,75,000/- under the provisions of Section 114 of the Customs Act, by the Assistant Commissioner, Air Customs, Cochin. She adds that, if the petitioners are willing to deposit the afore mentioned penalty, the 1 st and 2nd respondents would return their passports to them forthwith.
5. In response to the submissions of Smt. Sheela Devi I, Sri.P.E. Sajal, the learned counsel for the petitioners, submits that his WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019 5 clients intend to initiate available legal recourse against Ext.P1 since they are not guilty for the imputations made against them; and adds that in any event of the matter, as long as the Customs Authorities are unable to show their competence to retain passports in this fashion, this Court may be pleased to direct the said Authorities to release them forthwith.
6. When I hear Sri. P E Sajal and test his submissions against those made by Smt. Sheela Devi I, I must say that I find, prima facie, some force in what he says. This is because, even if the petitioners are guilty of the allegations levelled against them by the Customs and even if they are liable to pay the amounts shown in Ext.P1 as penalty, the question remains as to whether either the 1 st or the 2nd respondents have the forensic competence to detain or retain passports when passengers are intercepted during international travel. This is an issue that certainly should gain the attention of the Competent Authority, since I do not propose to state affirmatively on it at this point of time.
7. I am, therefore, of the view that the competent WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019 6 jurisdictional Authority must consider this aspect immediately, after hearing the petitioners, so that a decision, as to whether the retention of the passports by respondents 1 and 2 is legal or otherwise, can be entered into by the said Authority.
8. Keeping this in mind, I asked Smt. Sheela Devi I, the learned Senior Standing Counsel for Customs, as to the Competent Authority who can take a decision in this regard and she suggests that if the petitioners present themselves before the 2 nd respondent- Superintendent of Customs, Cochin International Airport, on a particular day, then they can be heard and an apposite decision taken whether to return the passports to them or to issue an order, denying it on valid reasons. Sri P.E. Sajal, learned counsel for the petitioners also affirm that this is a course that can be considered and he says that his clients is willing to appear before the said Authority any day.
9. In the afore circumstances, I order these writ petitions and direct the petitioners to mark appearance at 11 a.m on 24/05/2019 in the Office of the 2nd respondent-Superintendent of WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019 7 Customs, Cochin International Airport; in which event, the said Authority will hear them and decide whether the passports can be released to them and if not, shall issue an order specifically stating why it cannot be done.
10. It is clarified that the 2 nd respondent must take a decision as afore on 24/05/2019 itself and he will either release the passports to the petitioners or issue the order refusing to do so, on the same day itself, before the close of the working hours, so as to enable the petitioners to take further re-course, available to them in law, without any delay.
These writ petitions are thus ordered.
SD/-
DEVAN RAMACHANDRAN
Nsd JUDGE
//TRUE COPY//
PA TO JUDGE
WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019 8 APPENDIX OF WP(C) 13888/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 14/05/2019 ISSUED BY 1ST AND 2ND RESPONDENTS EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 11/12/2014 IN WPC NO. 32496 OF 2014.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 17/05/2019 BEFORE THE 3RD RESPONDENT. WP(C).No. 13888 of 2019 & WP(C).No. 13886 of 2019 9 APPENDIX OF WP(C) 13886/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 14/05/2019 ISSUED BY 1ST AND 2ND RESPONDENTS.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 11/12/2014 IN WPC NO.32496 OF 2014.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 17/05/2019 BEFORE THE 3RD RESPONDENT.