IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13875 of 2008 Birendra Thakur, son of Ram Shristha Thakur, resident of village- Ramnagar, P.S.-Riga, District-Sitamarhi. …… Petitioner. VERSUS 1. The Union of India through Commissioner of Customs, Bihar, Revenue Building, Birchand Patel Marg, Patna. 2. The Assistant Commissioner of Customs, Muzaffarpur Division, Muzaffarpur. 3. The Inspector of Custom (P) Circle, Sitamarhi. …… Respondents. ----------- Advocate for the Petitioner : Mr. Purnendu Singh. Advocate for the Respondents: Mr. Sudhir Singh, Asst. S.G. -------- 08 02.04.2009 The writ petition was filed by the petitioner, who is a resident of village Ramnagar in the district of Sitamarhi challenging the seizure of Mahua wood in the shape of Kari & Patti (Sawn timber) by the Customs Preventive Division, Muzaffarpur. The Customs officials have filed counter affidavit, rejoinder to which has also been filed, and reply to the rejoinder by the Customs officials. With consent of parties this writ petition is being disposed of at this stage itself. The facts of the case are within a very narrow compass. Petitioner alleges that for his personal purpose he had purchased some Mahua timber and on his own truck after getting permit for timer transit transporting it to his village at Ramnagar in the district of Sitamarhi. While the truck was standing outside his house on the road, officers from the Customs Department came and wrongly seized the same with wrong intentions. The petitioner challenges the validity of seizure. On the other hand, the stand of the Customs Department is that they had secret information that some truck with Nepali Mahua 2 (timber) was likely to be illegally imported into Indian territory and accordingly in the night of 10.07.2008 they found a truck coming towards Sitamarhi. When they tried to stop the driver, to check the contents thereof, the driver shouted that the truck was empty and the truck fled away. Then there was hot pursuit given by the Customs officials and after some distance of about 25 Kms. from the check point they found the truck abandoned near village road of Ramnagar (the village of the petitioner). The driver and the cleaner disappeared in the village and because of night and rain could not be located. On inspecting the truck they found wood cut into pieces, which was later, got identified by local carpenter to be Mahua of Nepali origin, as such, the truck bearing Registration No. BR1G 3792 along with alleged Nepali timber loaded thereon was seized on the “reason to believe” that the timber was of Nepali origin and was being imported into India illegally in violation of the provisions of the Customs Act and Foreign Trade (D&R Act), 1992, read with notifications issued under the Customs Act. The timber was estimated to be about 200 cft, valued at about Rs. 74,000/-. The seizure was made in terms of Section 110 of the Customs Act, 1962. The seizure report is contained in Annexure-2. The first thing on reading seizure report (Annexure-2) that strikes this Court is that it is at about 11.30 P.M. on 10.07.2008 that the vehicle was chased and ultimately seized at Ramnagar, but the seizure report is signed dated 14.07.2008. In the seizure memo, the signature of the seizing officer, that is the Inspector, Customs Preventive Division, Sitamarhi, the signature is dated 14.07.2008, 3 whereas the witnesses’ signature is dated 11.07.2008. The seizure memo is drawn up at 2.30 P.M. on 11.07.2008 at Sitamarhi and the date and time of seizure is shown as 2.30 P.M. on 11.07.2008 and not as stated in the detailed report. Petitioner’s submission is simple. He submits that in terms of Section 110 of the Customs Act the power to effect seizure is preceded by “reason to believe” that any goods are liable to be confiscated under the Act are involved. Thus, it was for the Customs Authorities to establish that they had prior “reason to believe” that the wood of Nepali origin and was illegally being brought into India. “Reason to believe” it is submitted with reference to the Act has a well known connotation which is the only safeguard available to a person as against otherwise unguided power of seizure of goods conferred on the Customs Authorities. The safeguard has to be strictly followed. How a person could identify any wood to be of Nepali origin is not known and if that be so how could there be a bona fide reason to believe in that respect is not known. Further, it is submitted that so far as timber from Nepal is concerned, there is no quantitative or qualitative restriction on import thereof in India. There is no customs duty and the importation has to be freely allowed in terms of the Indo-Nepal Trade Treaty. In reply thereto, the respondents submit that as recorded in the seizure report itself they had secret information about illegal smuggling of Mahua wood into India from Nepal. On closure scrutiny of the report by this Court all that it discloses is that a truck of unknown description was likely to come into Indian territory with Nepali wood. 4 Neither the truck number nor its description nor its destination is recorded. How the Customs Authorities asserted it to be Nepali wood is also not disclosed? At this stage, it may also be noted that so far as timber is concerned, under the Customs Act it is not a “prohibited good” in respect of which the onus is on the person found on the possession thereof to establish, it is lawful importation. The onus, thus, is on the Customs to establish its illegal importation and that is to be preceded with establishment of its foreign origin. Unfortunately, on this fact the Customs Authorities have failed to discharge the onus, rather, their stand is just the other way around and they have attempted to falsify the defences, as sought to be put by the petitioner. Merely, because, the defence is not corroborated, it does not mean that a person is guilty, as noted above. It was obligatory on part of the Customs Department first to establish “reason to believe” to assume jurisdiction in the matter and then to establish that it was Nepali wood. On the facts, it is clear that Customs Department has been unable to establish any part from what is stated in the seizure report, which itself does not inspire confidence. In fairness to the respondents, it may be noted that subsequently realizing that while drawing up the document a vital mistake had been committed which falsified the Customs’ case. A clarification was issued by the seizing officer that he had noted the date in signature wrongly in stead of 11.07.2008, he had noted 14.07.2008. I may only mention that the said date is not at one place, the said date 14.07.2008 as noted at several 5 different places but appearance has been given that seizure was in fact on 11.07.2008 in the afternoon, whereas, the report itself says it was in the night of 10th and 11th July 2008. This clearly shows that the report as drawn up is not reliable, but this Court does not intend to rely only on this aspect of the matter. As noted above, the only safeguard that is available to a person against indiscriminate seizure which is a serious intrusion into the rights of individuals, a safeguard has been provided in the expression “reason to believe”. What is the legal concept of this expression has been repeatedly dealt by this Court in relation to Customs Act itself. Reference may be made to a judgment in the case of Angou Golmei Vs. Smt. Vizovolie Chakhasang & Another since reported in 1994 (1) PLJR 800. There in that case the Division Bench of this Court reviewed a large number of earlier cases in this regards including an earlier Division Bench judgment of this Court in the case of Bawa Gopal Das Bedi & sons and others Vs. Union of India & others Since Reported in AIR 1982 Patna 152, wherein, it was held that the power of seizure cannot be used as a roving fishing enquiry. “Reason to believe” is not the same as “reason to suspect” because if such an interpretation was given then no citizen would be safe and any property could be seized. Then, we have the case of Yogendra Prasad Vs. The Union of India & Others since reported in 2004 (4) 4 PLJR 675, wherein Aftam Alam, J. as his Lordship then was, dealt with a similar situation. Again, this Court referred to the expression “reason to believe” which must exist prior to seizure and is not a thing that is 6 acquired after the seizure that is when the explanations of the person are not found to be correct. Reason to believe is a condition precedent in such matter. It has again been re-examined in detail in a recent decision of this Court in the case R.G. Holdings Private Limited Vs. The State of Bihar & Another since reported in 2008 (2) PLJR 538, though, with respect to the provisions of seizure, as contained under the Motor Vehicles Act, where the same expression “reason to believe” is used. In the present case, in my view, on the facts as noted above, there is no prior reason to believe nor there is any material to justify, even prima facie, the allegation that the timber, in question, is of Nepali origin. The condition precedent to assume jurisdiction under Section 110 of Customs Act completely missing. In fairness to the learned counsel for the Customs Department, who produced the Indo-Nepal Trade Treaty, it must be said that a reading of the Indo-Nepal Trade Treaty clearly shows that so far as timber of Nepali origin is concerned, the importation thereof is free from quantitative or qualitative restriction and is not liable to any duty of Customs on importation into India. Such being the provision, one wonders what is the sense in alleging smuggling into India. No taxes or duties are being evaded, nothing that was prohibited is being done, the importation being free. Confronted with this situation, the learned counsel for the Customs Department then submits that in fact the Customs Department had found the vehicle abandoned with timber thereon and, as such, for safe custody they had seized the same. Apart from being 7 contrary to the reports drawn up by the concerned authorities showing curiously how in spite of hot pursuit the driver and others managed to park the vehicle and escape. The power to deal with abandoned vehicle is to be found in Section 127 of the Motor Vehicles Act and can only be exercised by a Police Officer or a Motor Vehicle Authority especially empowered in this regards. The Customs Authorities cannot seize and detain abandoned vehicle. That was desperate argument. Here, I may also take note of a position in law. The power to seize in various enactments is for the purposes of enforcement of the Act. They cannot be used in any indiscriminate manner or in any manner they like or for any purpose. I cannot do better then quote from the decision of the Apex Court in the case of The Collector (District magistrate), Allahabad and another Vs. Raja Ram Jaiswal since reported in AIR 1985 Supreme Court 1622 and in particular paragraph 26 thereof, “Where power is conferred to achieve a purpose the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context „in good faith‟ means „for legitimate reasons‟. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be 8 exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill- will or motive”. As a last attempt, the learned counsel for the respondents submits that the petitioner was at a liberty to move the Customs Authorities and face the proceedings before it to seek the release and the remedy under Article 226 was not the appropriate remedy. Five decades back a similar objection was raised before the Constitution Bench of the Apex Court in the case of Wazir Chand & Another Vs. The State of Himachal Pradesh & others since reported in AIR 1954 Supreme Court 415. In this connection, I may quote paragraph 8 from the reports :- “Where the police in India seized goods in possession of the petitioner in India, at the instance Police of Jammu and Kashmir, and the seizure was not under any authority of law, inasmuch as they were not under orders of any magistrate nor were they under any of the sections 51, 95, 98 and 165 of the Cr. P.C., since no report of any offence committed by the petitioner was made to the Police in India and 9 the Indian Police were not authorised to make any investigation and the whole affair was a hole–and-corner affair between the officers of the Kashmir Police and the Indian Police, the seizure of the goods from the possession of the petitioner amounted to an infringement of his fundamental rights both under Article 19 and Article 31 and relief should be granted to him under Article 226”. Thus, in my view, the very foundation of seizure being without jurisdiction. The seizure cannot be sustained. The result is, as held by the Apex Court in the case of Smt. Kusum Lata Singhal Vs. Commissioner of Income Tax, Rajasthan since reported in (1990) 4 Supreme Court Cases 1998. Wherein in paragraph 8 their Lordships held thus :- “….Our attention was also drawn to the observations of this Court in CCT v. Ramkishan Shrikishan Jhaver in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking, that would be so. This proposition is unexceptional but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this case…..” 10 In that case, the Court refused to release, as there was serious controversy amongst various claimants, as to the ownership of the valuables, which was subject matter of the seizure. In the present case, there is no such dispute. The truck belonged to the petitioner, the timber is claimed by the petitioner himself. The timber was seized from the petitioner’s truck and petitioner claims the same. On this point, I may also notice that petitioner is the resident of village Ramnagar from where the truck with the timber was seized. Under such circumstances, I have no option but to hold that truck and timber were wrongly seized without authority of law and thus both are liable to be returned to the petitioner on proper accounting, as per the seizure memo itself by the respondents. It should be done, if already not done, within a period of one month from today. With the aforesaid observations and directions, the writ petition is, thus, allowed. Trivedi/ (Navaniti Prasad Singh, J.)