IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8709 of 2009 BIRENDRA KUMAR AGRAWAL,Son of Sri Bhagwati Prasad Agrawal, Resident of Basopatti, P.S. Basopatti, District-Madhubani ---------------------------- Petitioner Versus 1. THE UNION OF INDIA through the Home Ministry, Govt. of India, New Delhi 2. The State of Bihar 3. Officer Incharge, Harlakhi Police Station, Madhubani 4. Sena Nayak Karyalaya, Shastra Sima Bal, Jainagar, Madhubani ------------------------ Respondents ----------- For the Petitioner : M/S N.K.Agrawal, Sr.Advocate, D.N.Tiwari, Advocate For the State : Mr. Dhananjay Kumar, A.C. to G.P.12 For the Union of India : Mr. Kumar Priya Ranjan ( C.G.C.) ------------- 05 15-10-2009 Heard the learned counsel for the petitioner and the State as well as Union of India. 2. The petitioner was apprehended by the authorities of the S.S.B. at Village-Piprawan, Police Station-Harlakhi in the district of Madhubani and from his custody Rs. 29, 80,000 Nepali currency was recovered and seized, details of the currency has been indicated in the seizure list, which is contained in Annexure-1 to this application. 3. This writ application has been filed for a direction to the authorities to release the seized currency to the petitioner. 4. The Respondent State has filed its counter affidavit. Learned Counsel for the Union of India was allowed time to file counter affidavit earlier but the same has not been filed and Sri Kumar Priya Ranjan, learned counsel for the Union of India prays for further time to file counter affidavit. 5. I am not inclined to do so as under Order no.4 dated 2 8.9.2009 three weeks’ time was granted by this Court, as sought for by the counsel for the Union, for filing counter affidavit but the authorities of the Union of India have not availed such opportunity. In the circumstances request for further time is refused. 6. During hearing the learned counsel for the Union of India submitted that seizure of Nepali currency from the petitioner has been made under the provisions contained in Section 113 (B) of the Customs Act,1962 .For ready reference the provisions contained in Section 113(B) is quoted hereunder: “113. Confiscation of goods attempted to be improperly exported , etc:- The following export goods shall be liable to confiscation: (a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods: (b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under Cl.(c) of Sec.7 for the export of such goods.” 7. Learned counsel for the Union with reference to sub section (b) of Section 113 of the Customs Act submitted that as the petitioner was found crossing the Nepal Boarder through a route other than a route specified in the notification issued under Clause- (C )of Section 7 for the export of such goods, namely the currency in possession of the petitioner was seized by the S.S.B. authorities. 8. The learned counsel for the Union of India in this connection has further referred to the seized goods which has been defined under sub-section (22)(d) of Section 2 of the Act which is also 3 quoted herein below: “2. Definitions- In this act, unless the context otherwise requires --- X X (22) “good” includes- (a) vessels, aircraft and vehicles; (b) stores: ( c ) baggage; (d) currency and negotiable instruments; and (e ) any other kind of movable property;” 9. Learned counsel for the Union with reference to the aforesaid provisions further submitted that currency is included within the definition of goods and petitioner was found in possession Nepali currency while crossing the Nepal Boarder through a route not specified under the Notification, the seizure was effected. 10. Learned counsel for the petitioner in reply submitted with reference to the provisions contained in Clause (8) of the Foreign Exchange Management ( Export and Import of Currency) Regulation,2000, as contained in Annexure-4 that possession of, taking out and bringing in any currency of Nepal and Bhutan is not an offence, rather is permissible to take out or bringing in Nepali currency within the territory of India. For ready reference the provisions contained in clause (8) of the said Regulation,2000 is quoted here:- 8. Export and Import of currency to or from Nepal and Bhutan:- Notwithstanding anything contained in these regulations, a person may- (i) take or send out of India to Nepal or Bhutan, currency notes of Government of India and Reserve Bank of India notes(other than notes of denominations of above Rs.100 in 4 either case); (ii) Bring into India from Nepal or Bhutan, currency notes of Government of India and Reserve Bank of India notes ( other than notes of denominations of above Rs.100 in either case): (iii) Take out of India to Nepal or Bhutan , or bring into India from Nepal or Bhutan, currency notes being the currency of Nepal or Bhutan. 11. Having heard the learned counsel for the petitioner, the State and the Union of India as also having considered the aforesaid provisions quoted herein above, this Court is of the view that the possession of Nepali currency by the petitioner is authorized in terms of Clause(8) of the Regulations and he was found crossing the Nepal Boarder through a route which is not specified by the authorities under the notification however such overt act will not authorize the S.S.B. authorities to seize the currency, as the petitioner was not found committing any offence. Under the circumstances, I direct the release of the seized currency notes to the petitioner. The authorities are however at liberty to take any proceeding against the petitioner in accordance with law. Let this order be communicated to the Collector, Madhubani through Fax at the cost of the petitioner and the Collector should forward this order to the Officer Incharge of Harlakhi Police Station, where the seized currency notes are kept in the Malkhana for compliance. NKS/- ( V.N.Sinha, J)