- (1.) This application has been moved by the petitioner for interim relief. The respondents Nos. 1 to 4 have not appeared even though they were called upon to file an affidavit in opposition to this application. They have neither filed any affidavit in opposition despite several opportunities given to them, nor appeared before this Court to contest this application. On three earlier occasions the matter was taken up for consideration but each time, practically after the hearing had been concluded, someone or the other came up and appeared for the respondents Nos. 1 to 4 seeking time to obtain instructions from his client. On the last date of hearing Mr. Law appeared once again and sought for a last and final opportunity to obtain instruction from his client and to report the same to the Court today. Unfortunately, today again, none appeared for the respondent Nos. 1 to 4.
(2.) This application has been filed by the writ petitioner in the pending Writ Application No. 2963 of 1993. The petitioner's contention is that he imported 25 M.T. of Glycerine from Bangladesh under an Open General Licence. According to the petitioner this importation is valid and strictly in accordance with law. However, respondents Nos. 1 to 4 after the goods were kept at Bonded Warehouse at Jagatdal District, 24 Parganas, seized the goods and kept the same in the Warehouse. The petitioner states that an amount of Rs. 5,64,377.31.00 (sic) has been paid by him as Customs Duty for the import of the goods and further a sum of Rs. 2,492/- as interest was calculated up to 9-1- 1990. The petitioner's contention is that the same goods i.e., Glycerine imported by others similarly placed have been released by the Customs Department but in case of the petitioner the goods had been detained without any legal reason whatsoever.
(3.) Had the respondents Nos. 1 to 4 filed an affidavit in opposition to this application, the Court would have been in a position to understand the stand taken by them, as to why the goods, imported under the Open General Licence, have been obtained. However because the respondents have chosen not to even appear in the case or to contest this application, I feel that the petitioner cannot be denied the relief, especially when he even at this stage has succeeded to establish a prima facie case that he is entitled to the release of the goods. I accordingly allow this application and direct that the goods be released in favour of the petitioner on the following conditions :- (1) The petitioner shall pay the Warehousing charges till the date of release of the goods. The payment made in respect of Warehousing charges by the petitioner shall be subject to the final outcome of the Writ application and shall also be without prejudice to the rights and contentions of the parties with regard to the petitioner's ultimate liability for payment of these charges. (2) The goods shall be released by the respondents within one week from the date the petitioner pays Warehousing charges. The respondent No. 5 shall calculate the Warehousing charges and intimate the same to the petitioner within one week from today in writing. (3) In the event, in releasing the goods, the respondent No. 5 faces any difficulty, it shall be at liberty to take assistance from the local police, since it is stated that the goods are lying at present in a Warehouse which is within a factory premises which is at present stated to be under lock-out and that while taking the goods out of this factory, some resistance may be offered by the workers or others. (4) Within one week from today the petitioner shall communicate this order in writing to the respondent Nos. 1 to 4. (5) The respondents Nos. 1 to 4 shall ensure that before the goods are released in favour of the petitioner, they will draw samples from the goods for being tested in the National Test House, Alipore, Calcutta, to find out whether the goods conform to the documents for import and whether the goods suffered any quality deterioration or not. The report of the test so conducted, will be produced before this Court in due course. If however, despite the communication of this order, and despite this direction, Respondents Nos. 1 to 4 fail to draw the samples, the goods shall none-the-less be released. In that event, appropriate inference can be drawn by the Court at appropriate stage of the proceedings.;