IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16678 of 2010 MD. MAZID @ MD. TUFANI S/O LATE MD. JAAN R/O DALLU TOLA, WARD NO. 18, P.S.- FARBISGANJ, DISTT.- ARARIA, BIHAR …. PETITIONER Versus 1. THE UNION OF INDIA THROUGH COMMISSIONER CUSTOMS, CENTRAL REVENUE BUILDING, BIRCHAND PATEL PATH, PATNA 2. THE SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE, SUB REGIONAL UNIT, 1ST FLOOR, CUSTOM OFFICE BUILDING, MUZAFFARPUR, BIHAR 3. THE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE SUB REGIONAL UNIT, 1ST FLOOR, CUSTOM OFFICE BUILDING, MUZAFFARPUR, BIHAR … RESPONDENTS ---------- For the Petitioner : Mr. Prabhat Ranjan, Advocate For the Respondents : Mrs. Archana Minakshi, Advocate --------- O R D E R 08/ 20.05.2011 This writ petition has been filed by the petitioner challenging Seizure Memo dated 19.09.2010 (Annexure 6) prepared by the Intelligence Officer, Directorate of Revenue Intelligence, Sub Regional Unit, Muzaffarpur (respondent no.3) in connection with Department of Revenue Intelligence (D.R.I.) Case No. 02/2010, by which 464 Jute bags, totally weighing 27420 kgs. of betel nuts along with 45 numbers of old and used bicycles and one try cycle as well as a weighing machine and tarpaulin were seized for alleged violation of Notification no. 9/96- Cus(NT) dated 22.01.1996 issued under section 11 of the Customs Act, 1962 (hereinafter referred to as `the Act’ for the sake of brevity ), read with section 3(2) of the Foreign Trade (Div. & Reg.) Act, 1992 as well as sections 7, 46 & 47 of the Act. It is claimed by the petitioner that the said seizure was illegal, beyond jurisdiction and in extreme derogation of the 2 provisions of the Act and hence imposition of heavy cost was sought upon the respondents for resorting to such illegal seizure causing irreparable loss to the petitioner. 2. Learned counsel for the petitioner stated that the petitioner was the President of Him Sagar Upbhokta Bhandar Swablambi Sahkari Samiti Limited ( hereinafter referred to as `the Samiti’ for the sake of brevity ) at Farbishganj in the district of Araria, which had been registered by the District Co-operative Officer, Kishanganj/Araria on 06.07.2007 (Annexure 1) bearing registration no. BR-050303 OTH 55/2007 as per the Certificate of Registration issued by the said authority. It was also stated that the petitioner’s Samiti had been duly registered under the provision of section 7(1) and section 7(2) of the Central Sales Act, 1956 as a retailer for the resale of Kirana Goods, Food grains, Supari, Poly bags, Soap etc. vide Registration no. 10441827192 with effect from 16.07.2007 vide Certificate of Registration issued by the Deputy Sales Tax Commissioner, Farbishganj Circle, Farbishganj on 26.07.2007 (Annexure 2). The petitioner had also been issued the Certificate of Importer Exporter Code (IEC) with IEC no. 2108000330 by the Foreign Trade Development Officer dated 13.05.2008 (Annexure 3) for export and import of the articles mentioned therein. 3. It was also claimed by the petitioner that his Samiti applied for permission to trade in the articles seized by the Customs Department so that the said articles are available to the 3 members of the Samiti and after verification of its credentials etc., the Assistant Commissioner, Customs, Preventive, Customs Headquarter, Patna permitted the petitioner’s Samiti to lift the seized confiscated goods on the basis of 10% rebate vide order no. 532428 dated 30.07.2007 (Annexure 4). Thereafter, the petitioner through his Samiti entered into an agreement with the District Co- operative Federation Ltd. for purchase of 26100 kgs. of confiscated betel nuts in the month of July, 2009 vide Invoice no. 21 dated 06.07.2009. 4. However, as claimed by the petitioner, the said sale could not materialize even after the payment made by the petitioner, due to which the petitioner had to lodge a criminal case against the Kanpur firm at Araria. It is further claimed that after the mediation and table talks, Kanpur firm agreed to release the betel nuts, for which it had already received payment from the petitioner and the said betel nuts was received by the petitioner’s Samiti in August, 2010, regarding which an information was immediately sent by the petitioner on 31.08.2010 (Annexure 5) to the Deputy Commissioner, Customs, Farbishganj Division with respect to 26100 kgs. of betel nuts received by the petitioner’s firm from Kanpur firm, which was stored in the premises of Sri Bhanwar Lal Parakh in Ward No.3, which was taken on rent by the petitioner. 5. Learned counsel for the petitioner further submits that inspite of the aforesaid facts and communications, the members of the Department of Revenue Intelligence (D.R.I. ), Sub-Regional 4 Unit, Muzaffarpur along with the members of the Saharsa Seema Bal, raided the godown of the petitioner on 18.09.2010 and ransacked the same creating terror of power and took possession of betel nuts stored in the godown along with other articles and without making any proper Seizure Memo at the godown took away the seized articles on different trucks to the local Custom’s office and prepared the Seizure Memo in that office on 19.09.2010 (Annexure 6) initiating D.R.I. Case No. 02 of 2010. It is also claimed that the aforesaid Memo of Seizure is not the correct description of the articles seized as lesser quantities of articles have been shown therein. 6. Learned counsel for the petitioner argued that section 110 of the Act specifically provided procedure with respect to seizure of goods, which were liable to be confiscated,. but neither the legal procedure was adopted by the authorities nor the goods concerned were liable to be confiscated as there was no bar to the trade in betel nuts etc. and hence the seizure was not valid at all. 7. Learned counsel for the petitioner also argued that before confiscation of goods etc., show cause had to be issued under section 124 of the Act, but no such notice had ever been served upon the petitioner, who could have taken steps in that regard only after receiving such notice. Furthermore, since the petitioner was authorized to deal with such goods under the Certificates of Registration (Annexures 1,2 & 3), issued by District Co-operative 5 Officer, Deputy Sales Tax Commissioner and Foreign Trade Development Officer, the respondents had no authority to take the impugned steps and hence the petitioner challenged the very jurisdiction of the respondents to take such steps. In the said circumstances, it was further argued that there is no question for the petitioner to submit to the procedure of section 124 of the Act. It was also stated that only after six months of the filing of the writ petition and after the writ case was heard in part on 07.03.2011 that the respondents issued notice on 09.03.2011 only to circumvent the legal consequences of non-issuance of any such notice earlier. 8. On the other hand, learned counsel for the respondents vehemently challenged the claims raised by the petitioner and submitted that letter of Senior Intelligence Officer, D.R.I., Regional Unit, Muzaffarpur dated 06.01.2011 (Annexure `C’) clearly showed that during the course of investigation Shri Rajendra Kumar Tewary, Secretary of M/s District Co-operative Federation Ltd., Kanpur, tendered his statement under section 108 of the Act that it had sold 26100 kgs. of betel nuts (confiscated) to M/s Himsagar Upbhokta Bhandar Swalambi Sahkarita Samiti Ltd. vide Tax Invoice no.21 dated 06.07.2009 and the petitioner on behalf of the said Samiti received the same from the godown of M/s District Co-operative Federation Limited, Kanpur on the same day i.e. 06.07.2009 vide receipt issued by the Federation to the petitioner on the pad of the Samiti. 9. Learned counsel for the respondents further argued 6 that a detailed show-cause notice under section 124 of the Act was issued by the authority to the petitioner on 09.03.2011, which covers up the smuggling activities of the petitioner and hence proper remedy for the petitioner is to file a representation under section 124 (b)&(c) of the Act before the statutory authority, before whom the confiscation proceeding was initiated and only thereafter final order can be passed by the said authority under section 125 of the Act. 10. Learned counsel for the respondents also stated that against such final orders appeals are provided before the Commissioner under section 128 of the Act and against the appellate order of the Commissioner, a further appeal before the Appellate Tribunal was provided under section 129 of the Act. Hence he averred that the petitioner had sufficient, efficacious and adequate remedy for redressal of his grievance and hence there was no occasion for this Court to interfere into the matter and this writ petition is fit to be dismissed. 11. From the aforesaid arguments raised on behalf of the parties as well as from the materials on record, it is quite apparent that the petitioner has only challenged the seizure of his goods and not the confiscation proceeding, which has been initiated in the meantime. But a valid seizure being a sine qua non of the confiscation proceeding, the outcome of this writ petition is bound to affect the confiscation proceeding also. Section 110 of the Act provides for the power and procedure with respect to seizure of goods and the condition is that the officer concerned has reasons to 7 believe that any goods are liable to confiscation under the Act and only then he may seize the goods. Hence the main issue to be decided here is as to whether the seizing officer had any reasonable belief that the goods of the petitioner, which were seized, were liable to confiscation under the said provision. 12. In the instant case, admittedly, the items seized were betel nuts, old and used bicycles and one try cycle as well as a weighing machine and tarpaulin, regarding which it has been specifically stated on affidavit by the petitioner that such goods were not liable to be confiscated nor there was any bar to trade in betel nuts as it is a non-notified item. This claim of the petitioner could not be validly denied by the respondents nor any material could be produced by them in that regard. Hence the only valid reason for such seizure can be that it was of foreign origin but the onus to prove the same was squarely upon the Custom authorities, but they have miserably failed to prove the same. Hence it cannot be legally presumed that the seized betel nuts were of foreign origin. Reference in this regard may be made to a decision of the Division Bench of this Court in case of Commissioner, Customs Department, Government of India, Patna vs. Dwarika Prasad Agrawal, reported in 2009 (2) P.L.J.R. 858. 13. In absence of any valid denial of the claim of the petitioner and also in view of the certificates issued by various authorities, namely, District Co-operative Officer, Kishanganj, Deputy Sales Tax Commissioner, Farbishganj and Foreign Trade 8 Development Officer, Patna as well as the admitted tax invoice dated 06.07.2009, showing sale of betel nuts to the petitioner by M/s District Co-operative Federation Limited, Kanpur, it is apparent that the officer concerned had absolutely no reason to believe that the goods in question were liable to confiscation and hence were seized. It may be a case of suspicion but certainly it cannot be a case of reason to believe, which has to be based on some valid materials and reasonableness, which is condition precedent for taking any step under section 110 of the Act. In this regard, reference may be made to a decision of a Division Bench of this Court in case of Angou Golmei vrs. Union of India and others, reported in 1994(1) P.L.J.R. 800. 14. In the aforesaid facts and circumstances, the condition precedent of exercise of power under section 110 of the Act being absent, the impugned Seizure Memo dated 19.09.2010 (Annexure 6) cannot be held to be legal and proper. Accordingly, this writ petition is allowed and the said Seizure Memo is quashed and the respondents are directed to ensure that the betel nuts in question along with other seized articles are released in favour of the petitioner immediately on proper verification and /or furnishing adequate securities to the satisfaction of the officer concerned, but no cash or Bank-guarantee. However, the said release will be subject to the final decision taken in the confiscation proceeding. MPS/ ( S. N. Hussain, J. )