JUDGMENT [ENTITY], J.
(1) Two interesting questions arise in this writ petition : (i) Can the [ENTITY], respondent No 6 charge the petitioner demurrage on baggage, which is kept in its custody by the Customs Authority, who erroneously did not permit the petitioner owner to take it away without payment of duty? And if demurrage is chargeable, then did the Chairman of respondent No. 6, in the facts and circumstances of the case, apply his mind properly in not waiving the said charges wholly ? (ii) If one of the three packets containing the petitioner's computer (which was admittedly in the custody of the [ENTITY], respondent No 6) is misplaced, can a mandamus issue directing respondent No. 6 and/or respondent 4 and 5 (the Customs Authorities) to trace the missing packet within a specified period and release/deliver it to the petitioner, failing which give the petitioner equivalent compatible items as contained therein and/or money to purchase the same, in the peculiar facts of this case ?
(2) The basic facts in the case are admitted. The petitioner an Indian citizen, is a qualified architect. He studied and Worked abroad for a number of years and returned to India on 21st March, 1986 on a transfer of residence intending to permanently settle here. On arrival at Palam Airport, Delhi, be claimed and was granted the benefits of Transfer of Residence under the [ACT] (hereinafter referred to as the Residence Rules.) Subsequently, certain other personal and household effects belonging to the petitioner arrived in Delhi and on 20th August, 1986 he again claimed and was allowed the benefit under [SECTION] of the Transfer Rules.
(3) Before returning to India, the petitioner had purchased a personal computer on 25th August. 1985. The said computer arrived at Palam Airport in three packets on 19th July, 1986. The petitioner was informed about the arrival of the computer on 21st July. 1986. On 29th July 1986 the petitioner claimed transfer of residence benefit under [SECTION] of the Residence Rules in respect of the personal computer being a professional equipment, and filed a baggage declaration form. On 25th July, 1986 when the petitioner filed the said form, the three packets containing the said computer were brought, by an official of respondent No. 6, to the Superintendent, Air Customs for examination. The examination took place in the presence of the petitioner, but the Superintendent did not permit the petitioner to clear the same without payment of duty. On 28th July, 1986 the three packets were again examined by the Assistant Collector, Air Customs, but he also did not allow their clearance without payment of duty. Consequently. the said computer contained in three packets was detained/retained by the Customs Authorities, (4) The petitioner then filed an appeal, which was dismissed on 29th September, 1986 by the Collector of Customs (Appeals). Thereafter he filed a revision petition before the Central Government and the said petition was dismissed on 24th February, 1987.
(5) On 25th May, 1987, the petitioner filed the present writ petition challenging, inter alia, the order of the Central Government dated 24th February, 1987. On 14th July, 1987, the Court directed notice to show cause to issue as to why the writ petition be not admitted. Sub-sequently; the respondents appeared and sought time to file replies. On 15th October, 1987, Mr. [ENTITY] appearing for respondents 1 to 5 i.e. the Union of India and the Customs Authorities made a statement that the Central Government was reconsidering the order dated 24th February, 1987 and sought an adjournment.
(6) On 10th November, 1987, the Central Government pasted an order holding that the petitioner was entitled to the benefits of duty free import under [SECTION] of the Residence Rules with respect to the computer i.e. professional equipment, and permitted its clearance in terms thereof. As a result of this order, the controversy in the writ petition arrowed down to prayers (d) and (f) pertaining to warehouse/demurrage charges and prayer (g) any other appropriate relief which the petitioner is found entitled.
(7) But, when the petitioner went to collect his computer, which was in three packets, after the abovementioned order dated 10th November, 1987, he learned that one of the packets was not traceable. Consequently, on 11th January, 1988, this Court directed respondent No. 6 to trace out the said packet and given the petitioner inspection of all the three packets on 12th January, 1988. On 14th January, 1988 counsel for respondent No. 6 prayed for further time to trace out the third packet. On 25th January, 1988, Ms. [ENTITY], Legal Officer of respondent No. 6 appeared and said that the petitioner had been granted inspection of two packets on 15th January, 1988, but the third packet was still not traceable and efforts to find it were being made. On 3rd February, 1988. Ms. Garg again appeared and stated that the third packet was still not traceable but efforts to find it were continuing. On 25th February, 1988, Mr. [ENTITY], Cargo Superintendent of respondent No. 6 appeared and stated that the third packet had not yet been traced and an information had been lodged with the police in January, 1988. However, he added that respondent No. 6 was still hopeful of finding the packet.
(8) The petitioner informed the Court that his professional work was being hampered and he needed the computer for his work. He stated that the missing packet contained the printers etc. and consequently if he was given the two packets, that were with respondent No. 6, he could carry out his work at least partially.
(9) On 25th February, 198 8 we directed respondent No. 6 to release the two packets available with them to the petitioner, without payment of handling charges and/or demurrage and without prejudice to the rights and contentions of parties on this aspect. On 12th March, 1988 the two packets were released to the petitioner.
(10) On 16th May, 1988, counsel for respondent No. 8 stated that the third packet is not traceable. Thereafter, we permitted the petitioner to file an affidavit indicating, inter alia, the costs of the items in the third packet. Respondent No. 6 was permitted to file a reply to the said affidavit.
(11) On 11th August, 1988, we issued [SECTION] and directed the petition to be heard.
(12) During the course of hearing, on 23rd January, 1989, respondent No. 6 filed an application being [CASE NUMBER] to amend the affidavit sworn by Mr. [ENTITY] on 10th August, 1988. In the said affidavit, it had been stated that "Respondent No. 6 have waived demurrage charges" to the tune of Rs. 39,840.00 being 80 per cent of the demurrage chargeable for the period 19th July, 1986 to 2nd March, 1988. It was averred, inter alia, in the application that the above statement had been made in advertently and under a bona fide mistake as neither any application for waiver had been made by the petitioner nor any detention certificate produced nor any order recorded or made by respondent No. 6. Consequently. it was prayed that respondent No. 6 be permitted to substitute the words "can waive" instead of "have waived".
(13) After this application was filed, a copy having been served on counsel for the petitioner earlier, both counsel agreed that without prejudice to their rights and contentions, the petitioner should file an application to the Chairman, [ENTITY], for waiver. Consequently, the petitioner filed an application dated 2nd February. 1989 addressed to the Chairman, International, Airports Authority of India, Delhi praying for waiver of hundred per cent of the demurrage. The petitioner also made an application to the Customs Authorities turn issue of a detention certificate. The Customs Authorities issued a detention certificate for the period 25th July, 1986 to 2nd March, 1988. On or about 14th February, 1989, the Chairman disposed of the application.
(14) On 21st February, 1989, respondent No. 6 filed another affidavit setting out the order of the Chairman of respondent No, 6 granting waiver of 80 per cent of demurrage charges only. The order reads as follow : "Considered. 80% of demurrage charges be waived as this is a T.R. appeal case. 100 % has been waived on the untraceable package. un trace ability of one package is no ground for waiver of 100% on other packages. I is entitled for charges for keeping goods in custody and incurring expenses thereon."
(15) In view of the said affidavit, counsel for the petitioner said that he did not wish to file a reply to [CASE NUMBER] and consequently, we permitted the amendments as prayed for, to be made so that the position as on 10th August, 1988 is correctly recorded.
(16) The main contention of Mr. [ENTITY], learned counsel for the petitioner was that on a clear reading of the statute, rules and regulations, demurrage is not chargeable on "baggage". In the alternative be argued that even assuming that demurrage is chargeable, then this was a fit and deserving case for the Chairman to have waived the demurrage charges wholly.
(17) Mr. [ENTITY], learned counsel for respondent No. 6, however, contended that on a true construction of the various provisions of the [ACT] the [ACT]. The [ENTITY] (Storage & Processing) Regulations, 1980 (hereinafter referred to as "the Regulations 1980"). [ACT]. [ACT]. and the [ACT], the word "baggages" as referred to in [SECTION] of the Regulations 1980 must be held to be limited in its meaning and context to include only those goods, which are neither delivered by the carrier to the [ENTITY] nor come into its custody nor are stored or processed by it but are carried away by the passenger. He submitted that the word "cargo" as defined in the said regulation 2(b) must take within its scope and ambit all goods articles which come into the custody of the [ENTITY].
(18) In order to appreciate the rival contentions, it is necessary to examine the various provisions and notifications.
(19) Admittedly the computer comprising of three packets was brought into India under the [ACT] read with the [ACT]. It was imported under [SECTION] of the Residence Rules which permits the import, free of duty, of such equipment etc. as is ordinarily required by the technologist in his profession. [SECTION] of the said Rules deals with personal and household effects whereas [SECTION] deals with professional equipments etc. The Baggage Rules deal with both accompanied and unaccompanied baggage. Both these sets of Rules have been made by the Central Government in exercise of the powers under [SECTION] of the [ACT]. In neither of them is "baggage" defined, but [SECTION] of the [ACT], which is the definition section defines "baggage" as follows: "(3). "baggage" includes unaccompanied baggage but does not include motor vehicles."
(20) [SECTION] of the [ACT] provides that the Board may make regulations providing for the custody, examination, assessment to duty and clearance of baggage. It is also admitted that prior to the regulations made by the [ENTITY] charges were levied according to the [CASE NUMBER].
(21) Notice No. 27/76 dated 23rd December, 1976 has been issued by the Central Excise and Customs Collectorate, New Delhi, apparently under [SECTION] In this public notice which deals with godown rent and other charges in respect of detained packages, air cargo and all other goods, it is clearly specified ai [SECTION] that "no godown rent will be charged for the period for which the delay was on account of customs".
(22) Item 9 reads as follows : "The Assistant Collector of Customs in bona fida case of hardship may waive godown rent for storage up to 2 months, the Depute Collector up to 6 months and Additional Collector or Collector for any period provided they are satisfied that the importer/passenger could not clear the articles for reasons beyond his control. Application for the waiver shall be made by the Importer/Passenger in writing."
(23) Another Customs Public Notice being notice No. 30/86 was issued by the Collector of Customs on 30th April, 1986 It provided, inter alia, that the specific limits of the Customs Area were the whole of the "existing area constituting the Indira Gandhi International Airport, New Delhi including domestic arrival and departure area. Cargo Terminal New International Terminal Complex (Ctnitc for short) and the entire premises of Central Warehousing Corporation Ltd. (CWC for short) located at Gurga on Road, New Delhi, excluding M/s. IAA's Import Cargo Warehouse (monkey farm)".
(24) The said notice further approved M/s. [ENTITY] as the custodians of cargo under [SECTION] of the [ACT] and that cargo shall be stored in M/s. [ENTITY]'s Ctnitc subject to the certain conditions, inter alia, that the cargo shall be subject to the control of customs, and that in case of goods detained/seized etc. by Customs, the warehousing/storage charges shall be calculated by M/s. [ENTITY] for the period due minus the charges for the period of detention at the instance of Customs as certified by the Assistant Collector of Customs It also provided that the custodian shall be held responsible for any loss, pilferage and damage caused to the goods kept in their custody.
(25) On 23rd October, 1980, the [ENTITY] issued a notification under [SECTION] of the [ACT] with the prior approval of the Central Government and made the Regulations 1980 pertaining to storing and processing of goods.
(26) "CARGO" has been defined therein in [SECTION] and reads : "Cargo" means any property carried on an aircraft other than mail, stores and baggages.
(27) [SECTION] refers to demurrage and reads : "demurrage" means the rate or amount payable to the airport by a shipper or consignee or carrier for not removing the cargo within the time allowed.
(28) The word "consignee" has also been defined in [SECTION]. Consignee means the importer or his agent to whom the cargo tendered for air carriage is to be delivered.
(29) Regulation 4 provides for levy of charges which may include terminal charge, storage charge, handling charge, demurrage etc. [SECTION] deals with the scale of charges and provides that the charges shall be so fixed that they will ensure an economic return on the investment made and generate revenue for further development of facilities, and discourage storage "beyond the reasonable time necessary for processing".
(30) [SECTION] provides for waiver of charges. It reads : "(1) The Chairman may in his discretion for reasons to be recorded waive charges in deserving cases. (2) The Chairman may delegate his powers to Director of Cargo and Airport General Manager by issue of directive specifying the circumstances and the limits up to which financial powers for waiver of charges would be exercised."
(31) Regulation 8 provides for care of cargo and while dealing with import cargo says : "Cargo will be stored in the International Air Cargo Complex under the control and supervision of Customs authorities". The Authority will be "the custodian of the import cargo delivered to it" by the carriers.
(32) As above indicated, by virtue of [SECTION] "mail stores and baggages" have been excluded from the ambit of cargo. But baggage has not been defined separately in the Regulations 1980 nor in the [ACT].
(33) From a plain reading of the various provisions above indicated, it is clear that the [ENTITY] is the custodian of the goods as appointed by the Customs authorities under [SECTION] of the [ACT]. Further, since demurrage is chargeable on cargo and "cargo" has been specifically defined to exclude baggage, by the abovementioned Regulations 1980 issued by the [ENTITY], demurrage is not chargeable on baggage. This is apparent from the fact that in view of [SECTION] demurrage is the rate or amount payable to the airport for not removing cargo within the time allowed and baggage having been excluded from the definition of cargo by [SECTION], demurrage cannot be chargeable on baggage.
(34) Counsel for respondent No. 6 sought to urge that despite the definition of cargo and the plain meaning thereof, cargo must be given an extended meaning and baggage a limited meaning so as to subserve the object of the Regulations 1980. He contended that only that baggage which is carried away immediately by the passenger when be leavesthe Airport is not cargo and any baggage that is detained/retained or left at the airport and stored or comes into the custody of respondent No. 6 must be treated as cargo and demurrage charges are leviable.
(35) In view of the clear definition of cargo as indicated in [SECTION] of the Regulations 1980 excluding "baggages" the above argument of learned counsel for respondent No. 6 is not tenable.
(36) Mr. [ENTITY] referred to cargo as understood in the airways cargo tariff to include unaccompanied baggage and sought to urge that unaccompanied baggage is cargo. He quoted from airways cargo tariff : "Cargo" Equivalent to the term goods, means anything carried or to be carried in an aircraft, other than mail or other property carried under the terms of an international postal convention or baggage (incl. personal effects accompanying a passenger) or the property of the carrier; provided that unaccompanied baggage moving under an Awb is cargo."
(37) We are not really concerned with the Airways Cargo Tariff in this case. What we are concerned with is whether the [ENTITY] is entitled to charge demurrage on unaccompanied baggage in terms of the Regulations issued by it.
(38) Mr. [ENTITY] did not forcefully press the submission that unaccompanied baggage is cargo even though accompanied baggage may not be. This is because clearly even in a case where the baggage accompanies the passenger, it can be detained by customs and come into the custody of [ENTITY]. Apart from this. [SECTION] excluding baggages from the definition of cargo, uses the expression "baggages" and does not limit it or prefix it with the word "accompanied" and [SECTION] of the [ACT] which defines baggage says it includes unaccompanied baggage, but not motor vehicles. Mr. [ENTITY] also contended that if it is held that there is no provision made by the [ENTITY] for charging demurrage on baggage then respondent No. 6 is entitled not to deliver the goods until storage charges are paid the expenditure has been incurred and services rendered for storing the goods. This contention is not tenable in the facts of this case.
(39) [SECTION] of the [ACT] permits the [ENTITY] with the previous approval of the Central Government, to charge fees or rents "for the use and enjoyment by persons of facilities and other services provided by the Authority at any airport, Airport or airstrip". This section permits the international Airports Authority of India to charge fees or rent for such use and enjoyment. But the international Airports Authority of India has made the Regulations 1980 under [SECTION] of the [ACT] and has excluded baggages, stores and mails from the definition of cargo in [SECTION] and has only made provision for charging demurrage on cargo.l (40) It would, therefore, appear to us that it has not made any provision for charging demurrage on baggages, stores and mails in the said Regulations 1980 nor has any other provision been pointed out to us by which demurrage or charges has been sought to be charged on baggage. It is therefore, apparent from the clear language of the said regulations that baggage has been expressly excluded from the definition of cargo and no demurrage is chargeable on "baggages".) Further, it is not the petitioner who kept his computer stored with the [ENTITY] and used any facility but the said computer was detained in the Customs Area by the Customs Authorities. Demurrage as indicated in [SECTION] of Regulations 1980 means the rate or amount payable to the airport "for not removing the cargo within the time allowed". In the present case. the admitted facts are that it was the customs authorities who erroneously did not allow the petitioner to remove the baggage without payment of duty and once they have given the out of charge certificate to the petitioner, then respondent No. 6 must deliver the goods as demurrage is not chargeable on baggage.
(41) [SECTION] of the [ACT] make special provisions for baggage [SECTION] provides for the declaration by the owner of baggage for the purposes of clearance. [SECTION] provides for the determination of duty and tariff valuation in respect of baggage. [SECTION] provides for the proper officer subject to rules passing bona fide baggage free of duty. [SECTION] provides that the Central Government may make rules for the purpose of carrying out the provisions of this section, in particular, regarding the minimum period for which any article has been used or maximum value of individual articles, etc. and the conditions to the fulfillled subject to which baggage may be passed free of duty. Different rules may be made for different classes of persons. [SECTION] gives the Board power to make regulations with regard to, inter alia, the custody, examination, assessment of duty and clearance of baggage.
(42) [SECTION] of the [ACT] refers to clearance of imported goods and exports goods. [SECTION] of the said Act specifically provides that the provision of this Chapter shall not apply to (a) baggage and (b) goods imported or be exported by post.
(43) [SECTION] provides that the provisions of this Chapter shall not apply to (a) baggage, (b) goods imported by post, and (c) stores. Reading the [ACT] with [ACT] etc., it is clear that the [ENTITY] has clearly not made any provision for charging demurrage under its Act and Regulations on baggages.
(44) In any case in the facts and circumstances of this case. it is apparent that the goods had been detained on 25th July, 1986 by the Customs Authorities and the [ENTITY] is holding the goods as their custodian in the Customs area.
(45) The alternate argument of Mr.[ENTITY] is that even if demurrage is chargeable on baggage from the petitioner, in view of the peculiar facts of the case and the delay having occurred for no fault of the petitioner and since "one of the three" packets containing the entire computer is untraced, the Chairman of the [ENTITY] should have wholly waived the demurrage.
(46) There is no dispute that the Chairman has power under [SECTION] to waive hundred per cent of the demurrage in deserving cases. The Chairman does not appear to have applied his mind to the fact that the personal computer which was part of the professional equipment of the petitioner on transfer of residence was contained in three packets. Since one of the three packets of the said computer was untraceable, the computer in fact was not fully functional as admittedly the untraceable packet contained two printers and the connecting cables and other accessories. Thus, it is not a case of un trace ability of one packet delinked from the other packets, e.g. reams of paper or bags of cement. In the present case, the packet which is untraceable is not fully independent of the packets on which 80 per cent demurrage has been waived. Consequently, it is in this context that the un trace ability of one packet had to be examined. In refusing to grant hundred per cent waiver, it appears to us that the Chairman did not apply his mind to this aspect of the matter. Normally, we would have directed that the matter be examined afresh by the Chairman after fully applying his mind to the facts as indicated above, but in view of our opinion above expressed that demurrage is not chargeable on baggage it is not necessary to do so.
(47) With regard to the second question, about issuing of a mandamus to trace the misplaced packet etc. it is clear that this was not the subject matter of the writ petition as filed nor could it have been as the packet was admittedly misplaced subsequetly. The main contention in the writ petition pertained to the petitioner not being allowed the benefit of [SECTION] of the Residence Rules As Above noticed, this grievance was over as a result of the order passed on reconsideration by the Central Government on 10th November, 1987. But paragraph 7 of the petition and the reply thereto which relates to the question of demurrage has some bearing on this question. It reads "That the said computer has been wrongly and illegally kept detained ever since its arrival in India in the warehouse of respondent No. 6 at the International Cargo Terminal of the Indira Gandhi Airport, New Delhi at the instance of respondent No 5. The petitioner submits that he is not liable for the payment of warehouse charges or demurrage, if any, for the detention of the said computer in the warehouse by respondent No. 6. The petitioner at this stage has no recollection whatsoever of or is not aware of his ever instructing any official of respondent No. 6 to retain the said computer in the warehouse. Respondent No. 5 is the [ENTITY] New Delhi. No. affidavit in reply to the writ petition has been filed by respondents I to 5. Respondent No. 6 filed an affidavit affirmed by Mr. [ENTITY]. Assistant Director Cargo on 5th October, 1987 and denied the averments made in paragraph 7. However, he submitted that "respondent No. 6 is a custodian within the meaning and for the purposes of [SECTION] of the [ACT] and keeps the goods in its cargo complex".
(48) The petitioner filed a rejoinder-affidavit on 8th January, 1988. He reiterated the averments made in paragraph 7 of the petition and further averred in paragraph 8 of the said affidavit that he had "learnt to his dismay that one of the three packets in which the computer was imported is untraceable."
(49) What happened thereafter has been set out above resulting in the order dated 25th Februrary, 1988 directing respondent No. 6 to release the two packets available with them, the petitioner without payment of handling charges and/or demurrage and without prejudice to the rights and contentions of parties.
(50) On 27th April. 1988, respondent No. 6 filed another affidavit affirmed by Mr. [ENTITY] on 30th March, 1988 and indicated the steps taken to try and trace out the said packet. He also annexed the letter dated 12th January, 1988 written to the Station House Officer of Indira Gandhi Airport Terminal-11 to file a first information report regarding the fact that one of the three packets which had arrived on 19th July, 1986 by Ai 110 was untraceable and this was noticed on 21st December, 1987.
(51) On 16th May. 1988, Mr. [ENTITY] stated in Court that the third packet is not traceable. The petitioner prayed for time to file an affidavit, indicating, inter alia, the costs of the time in the third packet. Respondent No. 6 was given an opportunity to file a reply to the said affidavit. The petitioner filed the affidavit on 14th July, 1988 affirmed on the same date and indicated that the third packet contained connecting cables and other accessories and two printers being Epson model RX-60-P80RA and Brother model DX-15-XL. It is also asserted in the said affidavit that the said models "are not readily available in India". But the price of the nearest equivalent printers available in India compatible with the computer imported by the petitioner were furnished. These were Epson (80 Column X 150 CPS) LX-800 for Rs. 12.000.00 and Iqp Printer Citoh (132 Col. X 40 CPS) for Rs. 35,000.00 as per quotations annexed. He also asserted that no entries had been made in the relevant registers and the goods were lying in topsy turvy condition and respondent No. 6 did not know where the packet was kept.
(52) Respondent No. 6 filed an affidavit affirmed again by Mr. [ENTITY] on 10th August, 1988 admitting that one of three packets "consisting of Epson L.Q. Printer Brother Line Printer and Accessories Cables is not traceable". He did not dispute the replacement cost and/or the quotations filed by the petitioner. However, respondent No. 6 challenged its liability to pay damages to the petitioner for various reasons and submitted further that the question of damage, being a mixed question of laws and fact could not be determined in writ jurisdiction, "more particularly whether the same to be based on the cost of the loss sustained by the petitioner" or is to be "equal to the replacement cost of the goods lost by the petitioners . He also asserted that "due and proper care for the goods of the petitioner as a prudent person" had been taken as indicated in his earlier affidavit dated 30th March, 1988. On 28th September, 1988, respondent No. 6 filed another affidavit affirmed again by Mr. [ENTITY] 27th September, 1988, giving details of security staff etc. in order to try and establish that due and proper care of the goods of the petitioner had been taken.
(53) From the admitted facts it is apparent that all three packets containing the petitioner's computer arrived in India on 19th July. 1986 and were intact but were not released by the Customs and were in the custody of the [ENTITY]. On 25th May, 1987 the present writ petition was filed. It was only on 21st December, 1987 that it was noticed that one of the three packets was found to be not traceable. This occurred while the writ petition was pending in Court and consequently, we are of the opinion that the subsequent facts can be taken note of and the relief moulded accordingly.
(54) Mr. [ENTITY] strenuously submitted that a mandamus to trace out the packet and if not traceable to replace the items therein either by way of nearest compatible equivalent or cash cannot be issued as it would require certain factual determination. He further submitted that the question whether the petitioner is entitled to replacement cost or actual cost of the untraced packet is a mixed question of law and fact; as is the question of liability and the determination of the extent of liability of the Carrier/Customs authorities/respondent No 6. He contended that respondent No. 6 has taken due care of the goods, and, therefore cannot be foisted with any liability without a trial and in any case these are matters pertaining to the area of tort and/or contract and cannot be determined in writ proceedings.
(55) As above noticed, respondents 1 to 5 have not filed any reply. However, Mr. [ENTITY], learned counsel appearing for them has adopted the arguments of respondent No. 6 except that he contended that respondents 1 to 5 are not liable in any way. that respondent No. 6 being the custodian of the goods should be held responsible for any loss, pilferage or damage caused to the goods.
(56) It is clear from the facts mentioned above that the carrier had delivered the petitioner's goods at New Delhi on 19th July, 1986. Admittedly, the goods were intact when inspected by the Customs on 25th July, 1986 and again on 28th July, 1986 and consequently the question of the carrier being responsible after 19th July 1986 or in any case after 25th July. 1986 does not arise.
(57) In [PRECEDENT], , the Supreme Court was dealing with a case where 19 out of 58 bales of woollen rags were found to be not traceable. In that case as in the present there was dispute that all 58 bales had arrived and the Customs Collector had directed confiscation with an option to clear the goods on payment of redemption fine of Rs. 50.000.00 . The partly appealed to the Central Board of Excise and Customs, the Tribunal and ultimately, the matter went to the Supreme Court. The Supreme Court directed waiver of the redemption fine and delivery to be given on payment of duty. But when the party went to collect the goods 19 bales were not trace- able. The Supreme Court noticed that a situation had now arisen where the order of the Tribunal as modified by the order of the Court for the return of goods could not be fully given effect to. It found that the Customs and its approved custodian were statutorily liable to account for the goods. After noticing [SECTION] of the [ACT] and other provisions it opined that : "In view of these provisions in the Act. there can be little scope to dispute that until the goods are cleared for home consumption, the scheme of the Act requires the goods to remain in the hands of the customs authorities and obviously the statutory liability to account for the goods would be of the authorities under the Act charged with the responsibility of keeping the goods."
(58) Mr. Justice [ENTITY] speaking for himself and Chief Justice [ENTITY] observed that they agreed with the conclusion of Mr. Justice [ENTITY] that the Customs Authorities were "liable for the loss or damage to the goods". However, they did not concur with the conclusion of Mr. Justice [ENTITY] that "under no circumstances can the Board of Trustees" (Calcutta Port Trust) be held responsible for the loss or destruction of the imported goods; nor did they endorse the direction given that the appellant may take appropriate proceedings for determination of the damage (money value of the imported goods) and for recovery of the same in collateral proceedings.
(59) Consequently, after noticing the allegations and contentions of the appellants and the Customs authorities, and the Calcutta Port Trust's total denial of liability, they observed that the matters raised required "factual consideration and would warrant reception of evidence" and directed the Tribunal to give a reasonable opportunity to the appellants and the two respondents (Customs and the Calcutta Port Trust) and to adjudicate on the question whether the Customs Authorities were totally liable or the liability was to be shared by the Calcutta Port Trust and further how the appellants were to be compensated.They further directed that in case the goods are not finally traceable, the Tribunal "would to well to examine and decide" within three months "what amount of compensation in lieu of the goods should be payable to the appellants"?.
(60) What emerges from this decision is that the Supreme Court did not relegate the appellants to seek a remedy by way of a suit or other collateral proceedings but sent the matter back to the Tribunal to dispose it of within three months, when it found that evidence was necessary.
(61) From the facts in the case the Supreme Court, it appears that that there was a dispute as to whether the bales after they arrived and were confiscated by the Collector of Customs under [SECTION] and [SECTION] had been handed over the custody of the Calcutta Part Trust. Further it was also in dispute whether the 39 bales which were said to be available were independent bales or had been made after taking out rags from other bales. It is in these circumstances that the Supreme Court observed that, "this proceeding before us is thus not appropriate for looking into this part of the grievance".
(62) In the present case there is no dispute that all three packets containing the computer arrived on 19th July, 1986 and were brought by an official of respondent No. 6 to be inspected by the superintendent Air Cargo and the petitioner on 25th July, 1986; the Superintendent did not permit their clearance without payment of duty; that they were kept in the custody of respondent No. 6. [ENTITY], the custodian approved by the Customs Authority; that they were again brought out on 28th July, 1986 to be inspected by the Assistant Collector, Customs and were again detained/ retained by the Customs authorities; that the packet lost contained Epson and Brother printers and connecting cables etc; that the printers etc. were part of the three packets containing the computer; that this packet though admittedly in the custody of respondent No. 6 is not traceable, that the date of non-traceability as mentioned in the letter of [ENTITY] to lodge a F.I.R. is 21st December, 1987; that the packet became untraceable while the matter was pending in this Court, but after the Central Government's order dated 10th November, 1987 thereby partly frustrating that order; that the models of the printers as imported by the petitioner are available and the nearest equivalents compatible with the computer cost approximately Rs. 47,000.00 (Rs. 12.000.00 plus Rs. 35.000.00 ).
(63) Consequently, there is no dispute as to who had custody of the packet, what were its contents and its replacement value. That there is a statutory liability to account for the goods has been settled by the Supreme Court. Respondent No. 6 is clearly holding the goods on behalf of the Customs authorities under [SECTION] of the [ACT]. The Customs authorities were holding the goods as they did not release the goods without payment of Customs duty. This detention was erroneous in view of the sudsequent order of the Central Government dated 10th November, 19a7. The Customs authorities and/or its custodians are, therefore, under a statutory duty to release the goods to the petitioner.
(64) It appears to us that we need not go into questions of contract and tort and due care etc., because here respondent No. 6 was admittedly holding the goods as custodian of the Customs authorities who did not release the goods to the petitioner without payment of duty. The goods were detained under the provisions of the [ACT] and the rules and regulations made there under and consequently, the Customs authorities and their custodian, respondent No. 6 detained them under a statutory provision, though erroneously as subsequently held.
(65) In [PRECEDENT], the Supreme Court noticed that the State Government had seized vehicle pursuant to the power under the [ACT]. Mr. Justice [ENTITY] speaking for the Court observed that "the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed. The order of the Customs Officer was not final as it was subject to an appeal and if the appellate authority found that there was no good ground for the exercise of that power, the property could no longer be retained and had under the Act to be returned to the owner. That being the position and the property being liable to be returned there was not only a statutory obligation to return but until the order of confiscation became final an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take". Consequently, the Supreme Court held that the High Court was right in confirming the decree passed by the trial court on the basis that there was an obligation on the State Government cither to return the said vehicles or in the alternative to pay their value.
(66) In the present case the petitioner is admittedly entitled to all the three packets of his computer in view of the order of the Central Government of 10th November, 1987 and the out of charge order issued and a mandamus directing respondent No. 6 and the Customs authorities to trace the third packet and release/deliver it to the petitioner without payment of duty or demurrage can issue. It is well settled that the High Court is entitled to exercise its judicial discretion under [SECTION] to give effective relief especially when a party is claiming to be aggrived by the action of a public body or authority and it need not relegate a party to seek "relief by a somewhat lengthy, dilatory and expensive process by a civil suit" merely because a question of fact is raised. See : [PRECEDENT], .
(67) In the present case, most of the salient facts are not in dispute as above noticed. Further, the three packets were part of the whole computer and the two packets of the computer released to the petitioner is not fully functional without the third untraceable packet. Though the computer is f or use in the petitioner's professional work, the petitioner is not claiming any damage or loss for work having been hampered etc. but is only asking for the third packet to be traced out from the tipsy survey goods stored by respondent No. 6 and delivered to him. The third packet became untraceable during the pendency of the writ petition. The untraceable packet was never taken out of the Customs zone and remained in the control of the Customs while in the custody of its approved custodian, [ENTITY].
(68) Consequently, in order to provide effective relief to the petitioner in these proceedings and taking a cue from the decisions of the Supreme Court and in particular the decision in [PRECEDENT]. (supra) as there is no need for "reception of evidence", we are of the view that we ought to issue a mandamus to trace the packet and if not traced, to replace the items therein by the nearest compatible equivalents or else their value.
(69) There is no dispute in ts case on the relevant facts and it would be very unfortunate if we could not mould the relief in the peculiar facts of this case when the petitioner through no fault of his has been deprived of his baggage despite having got the order of the Central Government dated 10th November, 1987 in his favor. Admittedly, respondent No. 6 is the approved custodian of respondents 4 and 5 under [SECTION] the [ACT] and holds the goods subject to the control of Customs as indicated in Public Notice No. 30/86 above noticed. Consequently, they are jointly and severally statutorily accountable for the goods having been "charged with the responsibility of keeping the goods".
(70) We, therefore, issue a mandamus to respondents 4 to 6 to trace out the third packet of the computer containing the printers Epson model RX-60-P80RA and Brother Model DX15-XL and the connecting cables and packet to the petitioner without payment of duty or demurrage failing which deliver the nearest equivalents thereto compatible with the computer and/or the value thereof within three months.
(71) For the reasons outlined above, we allow the writ petition with costs. Counsel's fee Rs. 2.000.00.