Mohammad Kaleem Vs Commissioner of Customs (Delhi High Court)
Summary: The Delhi High Court, in Mohammad Kaleem Vs Commissioner of Customs, disposed of a writ petition seeking quashing of criminal prosecution under Section 135 of the Customs Act, 1962, concerning the seizure of 816.2 grams of gold brought into India by an international passenger. Justice Sachin Datta held that, since the criminal complaint remained pending before the Chief Judicial Magistrate (CJM), Patiala House Courts, New Delhi, the petitioner must seek discharge before that court rather than obtain such relief directly through the writ petition. The Court granted liberty to file an appropriate application for discharge and/or release of the surety and fixed deposit receipt (FDR), directing the CJM to consider and decide it in accordance with law as expeditiously as possible.
The petitioner arrived at Terminal-3 of Indira Gandhi International Airport, New Delhi, from Riyadh on 14 March 2018. According to him, after collecting his checked-in baggage, he proceeded to the Red Channel and declared that he was carrying gold weighing 816.2 grams. During the examination of his baggage and personal search, Customs officers recovered seven gold bars weighing 816.2 grams from the pockets of his trousers. The gold was seized and the petitioner was arrested. He was released on bail on the same day after furnishing a bail bond and an FDR.
Following a show cause notice dated 10 September 2018, the Joint Commissioner of Customs passed an adjudication order on 20 February 2019, denying the petitioner the free allowance, directing absolute confiscation of the gold and imposing a penalty of ₹4,60,000. However, the Commissioner of Customs (Appeals) subsequently held that the petitioner was an eligible passenger and recorded that his declaration of the gold stood established. Consequently, the appellate authority permitted redemption of the gold and reduced the penalty to ₹2,32,000. Despite this appellate relief, Complaint No. CT-1108/2021 under Section 135 of the Customs Act continued before the CJM.
Invoking Article 226 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner sought quashing of the criminal complaint and release of the surety/FDR furnished when bail was granted. His counsel submitted that the Customs show cause notice itself acknowledged that he had approached the Red Channel and declared the gold. It was argued that there was neither concealment nor any attempt to evade customs duty. Reliance was also placed on the appellate authority’s findings recognising his eligibility as a passenger and allowing redemption of the seized gold.
The High Court noted that the criminal complaint remained pending before the competent Magistrate. It observed that the substantive relief sought by the petitioner was discharge from the prosecution and that he was therefore required to approach the CJM with an appropriate application. The Court did not adjudicate the merits of the allegations, the effect of the appellate customs order on criminal liability or the petitioner’s claim that the gold had been properly declared. Instead, it disposed of the writ petition with liberty to appear before the CJM on the next hearing date and seek discharge and/or release of the surety/FDR. The CJM was directed to decide the application expeditiously in accordance with law, with all contentions of both parties expressly left open. Thus, the judgment does not terminate the prosecution but preserves the petitioner’s opportunity to seek appropriate relief before the trial court.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The petitioner invokes Article 226 of the Constitution of India, read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and prays for quashing of Complaint No. CT-1108/2021, titled as ‘Customs vs. Mohammad Kaleem’ under Section 135 of the Customs Act, 1962, pending before the learned Chief Judicial Magistrate (CJM), Patiala House Courts, New Delhi. He also seeks release of the surety/FDR furnished by him at the time of the grant of bail.
2. The factual conspectus is that on 14.03.2018, the petitioner arrived at Terminal-3, IGI Airport, New Delhi, from Riyadh. It is the case of the petitioner that, after collecting his checked-in baggage, he proceeded to the Red Channel and declared before the proper officer posted there that he was carrying gold weighing 816.2 grams. Upon detailed examination of his baggage and personal search, seven (07) gold bars collectively weighing 816.2 grams were recovered from the pockets of the trousers worn by him. The gold was seized, and the petitioner was arrested. He was released on bail on the same day on furnishing a bail bond and an FDR.
3. A Show Cause Notice dated 10.09.2018 came to be issued to the petitioner. Upon adjudication, vide order dated 20.02.2019, the Joint Commissioner of Customs denied the petitioner the free allowance, ordered absolute confiscation of the gold recovered from him and imposed a penalty of Rs. 4,60,000/- upon him.
4. In appeal, the Commissioner of Customs (Appeals), held him to be an eligible passenger and further recorded that it stood established that the gold had been declared by him. Accordingly, redemption was allowed and the penalty imposed was reduced to Rs. 2,32,000/-.
5. Learned counsel for the petitioner submits that the Show Cause Notice itself records that the petitioner walked up to the Red Channel and declared the gold. He submits that there was no concealment, nor any attempt to evade customs duty.
6. It is also pointed out that the appellate authority found him to be an eligible passenger and allowed redemption of the gold.
7. It is noticed that the complaint, being Complaint No. CT-1108/2021 titled “Customs vs. Mohammad Kaleem” under Section 135 of the Customs Act, 1962, is still pending before the learned CJM, Patiala House Courts, New Delhi, as stated by the petitioner himself.
8. What the petitioner seeks in substance is a discharge. For the said purpose, it is incumbent on the petitioner to move the learned CJM.
9. Accordingly, the writ petition is disposed of with liberty to the petitioner to appear before the learned CJM on the next date of hearing and move an appropriate application seeking discharge and/or release of surety/FDR. The same shall necessarily be considered and decided by the learned CJM in accordance with law, as expeditiously as possible. All contentions of the parties are left open.
