Binod Kumar Roy, J. - (1.) The prayer of the petitioner is to direct the respondent i.e., the State of U.P. and the Union of India to release his Maruti Car. No. DDC 5513 in his favour by issuing a writ, order or direction in the nature of mandamus, which on his statement (as contained in Annexure 4) was purchased by him for Rs. 66,000/- in the year 1988 from Dr. Arun Singhal of Samli.
(2.) Firstly the facts pleaded by the petitioner :-- His aforementioned Car was intercepted at 7.45 p.m. of 3rd January, 1989 at Nanuata on Delhi Saharanpur Road by the Customs and Central Excise Officers of Saharanpur Division on suspicion that some persons were carrying contraband gold in it. Four persons, namely, Ashok Kumar Agarwal son of Keshav Ram, Sunil Kumar son of Rameshwar Prasad, Sanjiv Kumar Jain son of Vakil Chandra Jain and Kishore Kumar, the driver of the vehicle, were said to be seated in the vehicle. Even though the petitioner was not said to be present in his vehicle yet proceedings were initiated against him. Show cause notices under Section 115, of the Customs Act, 1962 and under Section 72 of the Gold (Control) Act, 1968 were issued to show cause why the vehicle should not be confiscated for carrying contraband gold. Show cause notice were also issued under Sections 112 and 117 of the Customs Act, 1962 and under Sections 74 and 75 of the Gold (Control) Act as to why a penalty be not imposed upon him and the four persons aforesaid by the Collector, Customs and Central Excise, Meerut. All of them submitted their replies to the show cause notices. Vide his order dated 8th January, 1991, the Collector, Customs and Central Excise, Meerut directed confiscation of (a) 6 Gold biscuits of Foreign origin belonging to Sanjeev Kumar under Section 111(d) of the Customs Act and Section 71 of the Gold (Control) Act, directing release of Bank Draft No. 506710, dated 3rd January, 1989 of Rs. 66,018/- in his favour, (b) 4.044 Kgs. of silver ornaments whose ownership was claimed by Ashok Kumar Agarwal under Section 119 of the Customs Act and Section 71(2) of the Gold (Control) Act, however, permitting him to redeem the confiscated goods on payment of fine of Rs. 15,000/- in lieu of confiscation, (c) of one gold biscuit of Chinese origin and 10 Ginnis claimed by Ashok Kumar under Section 11 (d) of the Customs Act and under Section 71 of the Gold (Control) Act, directing release of 4 Churis and one Kangan to him and cash of Rs. 4550/- and Rs. 1,80,000/- in favour of Subhash Chandra. He imposed a personal penalty of Rs, 50,000/- under Section 112(b)(i) of the Customs Act and Rs. 10,000/- under Sections 74 and 75 of the Gold (Control) Act. He also imposed a personal penalty of Rs. 5,000/- on Kishore Kumar under Section 112(b)(i) of the Customs Act and Rs. 1,000/- under Sections 34 and 75 of the Gold (Control) Act. He also directed confiscation of the vehicle under Section 115(2) of the Customs Act and Section 72 of the Gold (Control) Act. The petitioner went up in appeal under Sections 129A (1) of the Customs Act and under Section 68 of the Gold (Control) Act before the CEGAT. The appeal of the petitioner was dismissed by the Tribunal vide its order dated 13-10-1995 (copy appended as Annexure-1) holding that the petitioner had lent his vehicle to Sanjeev Kumar for the day in order to bring his mother. So far as Kishore Kumar was concerned, who was the driver of the vehicle, his plea that the goods were kept under his seat when he had gone for tea and buy cigarette was not accepted and a finding was recorded that only the driver and the owner (that is to say the petitioner) knew about those boxes who could have informed the other occupants about the same confirming order of confiscation of the car. A copy of the said order was furnished to the petitioner on 30-12-1996, who after seeking legal advice is moving this writ petition and thus the slight delay, if any, in its filing may kindly be condoned. The authorities should have returned the vehicle in the interest of justice in view of the clear finding of the Tribunal that the petitioner had no knowledge or complicity in the transport of contraband gold. There was no evidence by way of statement by Kishore Kumar (his statement appended as Annexure-3) or of any other person to the effect that the contraband gold has been placed in the specially constructed boxes below the driver's seat. There was no reason for disbelieving the version of Kishore Kumar that he had gone away to buy cigarettes and to take tea when someone placed the contraband items in the boxes below his seat. It was nobody's case that any part of contraband gold, etc., belonged to the petitioner or Kishore Kumar, which was seized from the vehicle and the occupants. Admittedly, Sanjeev Kumar was a friend and neighbour of the petitioner (copy of the statement of the petitioner appended as Annexure-4) who had been on the vehicle several times and it could be very naturally expected that he knew about the boxes constructed under the driver's seat and the front side seat which was quite conspicuous in which the driver kept tools, blankets and dresses, etc., when he was sent out for a number of days. Sanjiv Kumar during interrogation gave the name of Anju Kumar, as the person for whom he was carrying gold, and if the petitioner or the driver were in any manner his accomplices he would have disclosed their names also in his statement. Since the vehicle of the petitioner was being used as a private Taxi its absolute confiscation was illegal inasmuch as no opportunity had been given to the petitioner under Section 115(2) Proviso of the Customs Act for its release on payment of fine. The action of seizure was misconceived as neither of Clauses (a) to (e) of Sub-section (1) of Section 115 of the Customs Act were applicable. No rule prescribing precaution to be taken have been prescribed under Section 115 (2) of the Customs Act for transport of such occupants or goods. Nanauta does not fall within the custom area as defined under Section 2 (ii) of the Customs Act. In any case the vehicle remained seized for the last eight years the petitioner has suffered adequate punishment and it would be expedient in the interest of justice to release the vehicle also on this ground.
(3.) The respondents filed a counter-affidavit serving its copy of Sri Amar Saran, learned Counsel for the petitioner, on 1-8-1997 which was sworn by the Assistant Commissioner, Central Excise, Division Saharanpur. 3.1 The Counter Affidavit states, inter alia, following facts :-( i) While searching the persons as well as the Maruti Car Silver ornaments. Gold Bar and Currency were found concealed in secret cavity fitted under its front seats. Some Indian Currency was also recovered from the another front seat concealed in the secret iron box fitted under front seat from it. Some gold biscuits and ornaments and cash, etc., were also recovered from the custody of Ashok Kumar Agrawal and Sunil Kumar. The search was taken in presence of all the occupants of the Car as well as two independent witnesses. (ii) As the car was used in smuggling of contraband foreign marked gold concealed in specially built cavity specially got manufactured by the Driver with the consent of the petitioner in the said car where the contraband gold and other goods were kept within the knowledge and consent of the driver, the vehicle was also seized under Section 115(2) of the Customs Act, 1962. (iii) It is important to mention that the original manufacturer of the vehicle do not provide such secret boxes in the vehicle and thus those secret chambers were got manufactured by the Driver with the consent of the petitioner as it is disclosed by him in his statement dated 6-2-1989 to provide extra safety to the smuggler. (iv) The petitioner approached the Chief Judicial Magistrate, Saharanpur for release of the vehicle but his request was not acceded. He also made request to the Collector, Central Excise, Meerut for provisional release of the said car but his request was turned down vide order dated 10th April, 1989 which was intimated to him. (v) Show cause notices dated 12th May, 1989 were issued by the Assistant Collector, Central Excise, Saharanpur. (vi) The matter was adjudged by the Collector, Central Excise, Meerut (copy appended as Annexure C.A-II) and the Maruti car was confiscated after considering all the facts. The Appeal filed by the petitioner before CEGAT, New Delhi against the order of the Collector was dismissed confirming the order of confiscation. Against the order of the Appellate Tribunal the petitioner sought for rectification which plea was considered and rejected vide order dated 15-10-1996 (copy appended as Annexure CA-IV). (vii) The seizure of the vehicle was made under reasonable belief that the same has been used for smuggling and carrying of contraband gold. The seizure and confiscation of the vehicle was strictly as per the provisions' of the Customs Act. (viii) The vehicle is registered as a private car and it was used as a private taxi and its confiscation was made after giving proper opportunity to the petitioner. (ix) Anurag Kumar in his statement had denied that the contraband gold was being carried to him. (x) There is no question of Custom Area as under Section 115(2) of the Act, it is clear that any conveyance or animal used as means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation. (xi) The grounds mentioned have got no force and the writ petition deserves to be dismissed. (xii) The writ petition was filed after one and half years of the passing of the final order dated 19-10-1995 and thus there is abnormal delay in its filing.;