IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 Crl.MC.No. 3788 of 2010(A) -------------------------------------- [CMP.NO.777/2010 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM, CRIME NO.65/2009 OF EXCISE RANGE, ERNAKULAM] .................... PETITIONER/CLAIMANT: ------------------------------------ ASSISTANT COMMISSIONER OF CUSTOMS (IMPORT AND BOND), OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGDON ISLAND, KOCHI-682 009. BY ADV. SRI.JOHN VARGHESE,S.C. RESPONDENTS/COMPAINANTS: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING CIRCLE INSPECTOR OF EXCISE, ERNAKULAM EXCISE CIRCLE OFFICE. 2. THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM. *ADDL R3 IMPLEADED: 3. CANA TRADERS, 16/1152 B, 1ST FLOOR, BABY JESELLERY BUILDING, THOPPUMPADY, KOCHI – 682 005, REPRESENTED BY IT'S MANAGING PARTNER VARKEY GEORGE. *ADDL. R3 IMPLEADED AS PER ORDER DATED 05/10/10 IN CRL.M.A. NO.6271/10 IN CRL.M.C. NO.3788/10. R1 & R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD, ADDL.R3 BY ADV. SMT.A.SREEKALA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3788 OF 2010 =========================== Dated this the 15th day of November,2010 ORDER Assistant Commissioner of Customs, Kochi filed C.M.P.777/2010 in Crime 65/2009 of Excise Range, Ernakulam under section 451 of Code of Criminal Procedure for interim custody of 1360 litres of foreign made foreign liquor seized by the Excise Inspector, Ernakulam near south railway station on 25.11.2009. By Annexure A19 order, learned Magistrate dismissed the petition. Petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A19 order and to get interim custody of the liquor. 2. Standing Counsel appearing for the petitioner, learned Public Prosecutor and the learned counsel appearing for third respondent who got themselves impleaded were heard. Crl.M.C.3788/2010 2 3. Chapter IX of Customs Act 1967 deals with Warehousing. Under section 57, any warehousing station, the Assistant Commissioner of Customs or Deputy Commissioner of Customs, may appoint public warehouses wherein dutiable goods may be deposited. Under section 58, at any warehousing station, the Assistant Commissioner of Customs or Deputy Commissioner of Customs may license private warehouses wherein dutiable goods imported by or on behalf of the licensee, or any other imported goods in respect of which facilities for deposit in a public warehouse are not available, may be deposited. Sub section (1) of Section 59 provides that the importer of any goods specified in sub section (1) of Section 61, which have been entered for warehousing and assessed to duty under section 17 or section 18 shall execute a bond binding himself in a sum equal to twice the amount of the duty assessed on such goods- (a) to observe all the provisions of the Act and the rules and regulations in respect of such goods (b) to pay on or before a Crl.M.C.3788/2010 3 date specified in a notice of demand-(i) all duties; and interest, if any, payable under sub section (2) of section 61; (ii) rent and charges claimable on account of such goods under the Act, together with interest on the same from the date so specified and (c) to discharge all penalties incurred for violation of the provisions of the Act and the rules and regulations in respect of such goods. Section 60 provides that when the provisions of Section 59 have been complied, proper officer may make an order permitting deposit of goods in a warehouse. Under section 61, any warehoused goods may be left in the warehouse, in which they are deposited, or in any warehouse to which they may be removed. Section 62 provides that all warehoused goods shall be subject to the control of the proper officer and no person shall enter a warehouse or remove any goods therefrom without the permission of the proper officer. Section 64 deals with the right of the owner to deal with warehoused goods. Section 67 provides for removal of goods from one Crl.M.C.3788/2010 4 warehouse to another. Under the said section, the owner of any warehoused goods may, with the permission of the proper officer, remove them from one warehouse to another subject to such conditions as may be prescribed for the due arrival of the warehoused goods at the warehouse to which removal is permitted. 4. Therefore when section 58 and 59 of Customs Act enables the importer of any goods to deposit imported dutiable goods on executing necessary bond binding him as provided therein, section 67 enables the owner of such goods to remove the goods from one warehouse to another. Annexure R3(a) to R3(o) the certificates of registration and the form of application for transfer of goods from one warehouse to another, establish that request was made for transfer of the foreign liquor so deposited in Warehouse, New Delhi to bonded Warehouse at Kochi. Annexure A16 the communication sent by the Cochin Air Cargo Clearing House to the Assistant Commissioner of Customs establish that Crl.M.C.3788/2010 5 two shipments will be arriving from Bonded Warehouse, New Delhi to be deposited in CWC Warehouse, W.Island, Cochin by train on 25.11.2009 and the importer is M/s.CANA Traders, Thoppumpady, Cochin who have obtained necessary permission from Assistant Commissioner, Import Department. The Asst. Commissioner of Customs was requested to appoint necessary officers for escorting the shipment from Ernakulam Railway Station to CWC Warehouse, W.Island between 2.00 p.m. and 5 p.m. on 25.11.2009. It is the case of the petitioner that after the consignments reached Ernakulam South Railway Station and was to be shifted to CWC Warehouse, W.Island, Cochin, they were seized by the Excise Authorities. 5. The argument of the learned Public Prosecutor is that there is violation of sub rule 3A of Rule 13 of Foreign Liquor Rules and as no foreign made foreign liquor can be purchased from the Customs Bonded Warehouse before payment of the duty as provided therein, an offence has been Crl.M.C.3788/2010 6 committed and therefore interim custody of the liquor cannot be granted. Rule 13 deals with licenses for possession, use or sale of foreign liquor. It provides that licences for the possession and sale of foreign liquor or for possession or use of foreign liquor shall be of the descriptions and in the forms appended to the rule mentioned thereafter. Rule 3A provides that notwithstanding anything to the contrary in the rules, hotels having not less than three star classification and possessing a licence in form FL 3 are permitted to purchase foreign made foreign liquor direct from the Customs Bonded Warehouse, on payment of an additional annual rental of Rs.20,000/- (rupees twenty thousand only) and an application to the Excise Commissioner for that purpose. 6. The foreign made foreign liquor seized in this case were all imported to India Annexure 1 to 15 establish that as provided under the Customs Act, they were originally deposited in Customs Crl.M.C.3788/2010 7 Bonded Warehouse, New Delhi. As provided under section 67, the foreign made foreign liquor so deposited at the Bonded Warehouse, Delhi are being transported, to be deposited at CWC Warehouse, W.Island, Kochi. The Customs officials are entitled to transfer the foreign liquor so deposited in one Bonded Warehouse to another Bonded Warehouse. Excise Officials are not entitled to seize such foreign liquor, while it is in the custody of the Customs Officials either in the Bonded Warehouse or while transferring from one Bonded Warehouse to another Bonded Warehouse. Exactly that was what transpired in this case. In such circumstances, Assistant Commissioner of Customs is entitled to get interim custody of the foreign made foreign liquor seized in Crime 65/2009 of Excise Range, Ernakulam as sought for in C.M.P.777/2009. But at the same time if the said foreign liquor is to be delivered to the third respondent or to any FL 3 licensee, it can only be subject to the compliance with the provisions of Crl.M.C.3788/2010 8 Foreign Liquor Rules and the Kerala Abkari Act. It is made clear that interim custody granted to the petitioner does not enable the Customs Officials to violate the provisions of the Abkari Act or the Foreign Liquor Rules. Petition is allowed. Annexure A19 order is set aside. CMP 777/2010 stands allowed. Judicial First Class Magistrate II, Ernakulam is directed to release the goods to the petitioner on executing necessary bond on interim custody as sought for. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006