Case Law Details

Case Name : Birendra Kumar Singh Vs The Union Of India (Patana High Court)
Appeal Number : Miscellaneous Jurisdiction Case No.5609 of 2011
Date of Judgement/Order : 06/09/2012
Related Assessment Year :
Courts : All High Courts (3783) Patna High Court (12)

 This petition has been filed by the petitioner for initiating a proceeding of contempt against the opposite parties for their deliberate and willful non-compliance and violation of order dated 14.11.2011, by which this Court allowed C.W.J.C. No. 12197 of 2011 filed by the petitioner & another and quashed the impugned seizure  and detention dated 02.06.2011 of the betel nuts and the truck on which it was loaded and the authorities were directed to release the truck and the betel nuts loaded thereon immediately after receipt/production of a copy of that order.

From the scheme of the procedure of the  seizure, investigation and confiscation as provided under the Act, it is quite apparent that there is no scope for continuance of the investigation after the seizure and detention of the goods had been quashed by the court of law after considering the merits or otherwise of the claim of the respective parties based on their pleadings and materials. Hence the plea raised on behalf of the opposite parties with respect to investigation and confiscation is absolutely frivolous and ridiculous, to say the least, and had obviously been raised by their counsel merely to save them from the punishment of contempt, which they have clearly committed and continued committing it merely to punish the petitioner for his fault of approaching this Court.

It is also apparent from the claim of the opposite parties that they had tried to justify their action and simultaneously they had tendered unqualified apology. This double faced stance of the opposite parties is against the settled principle of law in such matters. The facts of this case clearly show that the Assistant/Deputy Commissioner, Customs (Prevention) Division, Forbisganj, District Kishanganj (opposite party no.3) has orchestrated the things and misconstrued the provisions of law to the detriment of the petitioner merely with the purpose to overreach the order of this Court dated 14.11.2011 passed in   C.W.J.C. No. 12197 of 2011. The said officer being a senior officer should have known his limits and jurisdiction and crossing those limits and jurisdiction in such a manner knowing full well the facts of this case as well as the specific order/direction of this Court and its repercussions, is clearly a gross contempt, which he has committed as has been proved beyond any semblance of doubt.

 In these circumstances, this Court has no option but to hold the above named contemner guilty of contempt and punish him with simple imprisonment of three months, which must start within 30 days from the date of passing of this order and also with fine of Rs.2,000.00 (Rupees two thousand only), which must be paid within 30 days from today in favour of Patna High Court Legal Aid Society and receipt must be filed within the said period, failing which, imprisonment of the contemner shall be extended by one month more. The contemner must surrender before the Police within 30 days from today.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Jurisdiction Case No.5609 of 2011

Birendra Kumar Singh

Versus

1. The Union Of India Through Commissioner Of Customs, Central Revenue Building, Birchand Patel Path, Patna, Bihar, Namely Sri Ajay Dixit, Fathers Name Not Known

2. The Deputy Commissioner Customs ( P ) Customs Head Quarter, Centra Revenue, Building, Patna, Bihar, Namely Sri Manish Kumar Jha, Father’S Name Not Known

3. The Deputy Commissioner Customs ( P ) Division, Farbisganj, District Kishanganj, Bihar Sri Shiv Shankar, Fathers Name Not Known

4. The Superintendent Customs ( P ) Division, Farbishganj, District Kishanganj, Bihar, Mr. Rajesh Kumar, son of not known

5. The Inspector Customs ( Preventive ) Cum Seizing Officer, Circle Kishanganj, District Kishanganj, Bihar, Namely Sri Amarnath, Father’S Name Not Known

 O R D E R

06-09-2012

1. This petition has been filed by the petitioner for initiating a proceeding of contempt against the opposite parties for their deliberate and willful non-compliance and violation of order dated 14.11.2011, by which this Court allowed C.W.J.C. No. 12197 of 2011 filed by the petitioner & another and quashed the impugned seizure  and detention dated 02.06.2011 of the betel nuts and the truck on which it was loaded and the authorities were directed to release the truck and the betel nuts loaded thereon immediately after receipt/production of a copy of that order.

2. It is not in dispute that the truck in question had registration no. UP-63 H-0025 and 15,960 kgs. of betel nuts, contained in 266 bags, was loaded on the truck in question and was seized on 30.05.2011 from Kishangung ‘0’ Mile by the Kishangung Custom Office  alleging that betel nuts was smuggled article and was being transported.

3. Against the said seizure, C.W.J.C. No. 12197 of 2011 was filed by the petitioner Birendra Kumar Singh, who is a Transporter along with Sri Sai Trading Company, Patna, who was the owner of the said consignment of betel nuts, which it had booked with the petitioner at Gauhati for being delivered to M/s Maa Padmawati Traders, Nagpur after observing all the  necessary formalities and preparation of relevant documents and after payment of requisite fee at the Check-Posts.

4. The said writ petition was heard at length and after considering the respective claims of the parties and the materials on record, it was held that in the facts and circumstances of the case as well as in view of absence of any material to show that the goods were smuggled goods and were of any third country origin, the respondent-authorities should not have detained the truck and betel nuts loaded on it nor they should have seized the same, which acts were clearly violative of well-settled principle of law. Accordingly, the said writ petition was allowed by this Court vide order dated 14.11.2011 (Annexure 1) and the impugned order of detention and seizure of betel nuts and the truck on which it was loaded, was quashed and the authorities were directed to release the truck and betel nuts loaded thereon immediately after receipt/production of a copy of that order.

5. Learned counsel for the petitioner stated that the aforesaid order of this Court was communicated to the opposite parties along with an application on 19.11.2011 (Annexure 2) for immediate compliance of the said order of this Court. However, the opposite parties, instead of complying the said order of this Court and releasing the goods in favour of the petitioner, issued show cause notice on 18.11.2011 under section 124 of the Customs Act, 1962 (hereinafter referred to as `the Act’ for the sake of  brevity) initiating confiscation proceeding inspite of the fact that the seizure itself was quashed by this Court vide order dated 14.11.2011 in the presence of learned counsel for the opposite parties. In the said circumstances, this contempt petition was filed by the petitioner on 13.12.2011.

6. Learned counsel for the petitioner submitted that the aforesaid show cause notice dated 18.11.2011 was challenged by him in C.W.J.C. No. 22316 of 2011 and after hearing the parties the said show cause notice was  stayed by an interim order of this Court dated 08.02.2012 and as per the claim of the petitioner, the said order of stay has not been challenged till date by the opposite parties, but inspite of that the opposite parties issued another letter dated 09.02.2012, directing the petitioner to immediately file show cause as per notice dated 18.11.2011, failing which ex parte order would be passed in the confiscation proceeding.

7. Learned counsel for the petitioner averred that due to the aforesaid development the petitioner served letter dated 13.02.20 12 on the opposite parties giving details of the aforesaid facts and orders of the High Court, but no heed was paid to it by the opposite parties and hence the petitioner again served letter dated 21.05.2012 on opposite parties for release of goods in view of order of stay dated 08.02.2012 passed by this Court in C.W.J.C. No. 22316 of 2011, but instead of releasing the goods the opposite parties again sent letter dated 04.06.2012 to the petitioner reiterating the directions in the notice dated  18.11.2011.

8. Learned counsel for the petitioner claimed that it is not a case of ignorance as claimed by the opposite parties rather they have shown by their conduct that they are intentionally violating the orders of the High Court. It was also claimed that against order dated 14.11.2011 passed in C.W.J.C. No. 12197 of 2011 the opposite parties had filed L.P.A. No. 131 of 2012 on 06.02.2012 and in that appeal a Division Bench of this Court passed order dated 25.04.2012 condoning the delay, directing issuance of notice to the respondents and staying the implementation and execution of order dated 14.11.2011 passed in C.W.J.C. No. 12197 of 2011.

9. It was asserted by learned counsel for the petitioner that it is apparent from the records that on the said date i.e. 25.04.2012 the opposite parties did not produce order dated 08.02.2012 passed in C.W.J.C. No. 22316 of 2011 before the Division Bench and concealed such a relevant fact only to obtain the interim order and,  thereafter, by their acts, the opposite parties are dilly dallying the matter to prevent any final decision in L.P.A. No. 131 of 2012 as well as C.W.J.C. No. 22316 of 2011.

10. Learned counsel for the petitioner argued that on 14.06.2012, the opposite parties sent a letter to the petitioner asking him to take the truck/goods on depositing 100% cash security plus a Bond for the 100% value of the said articles. It was further argued that in other cases, no such orders are being passed by the opposite parties even if there was no intervention by the High Court and only Bond of 25% was required, but in the instant case where there was a specific order of release passed by the High Court declaring the seizure to be illegal, there was no requirement of Bond also. Thus, he submitted that malice in law and malice on facts are apparent, which proves that contempt has been committed by the opposite parties.

11. On the other hand, learned counsel for the opposite parties stated that orders dated 09.02.2012 and  04.06.2012 passed by opposite party-authorities cannot be challenged in this M.J.C. case and if the petitioner is aggrieved by those orders, he can challenge it in a separate writ petition. He further stated that the Commissioner has been given authority under section 110 of the Act to pass such order as he was required to look into the relevant facts and circumstances of each case.

12. Learned counsel for the opposite parties submitted that the order of the High Court dated 14.11.2011 passed in C.W.J.C. No. 12197 of 2011 was communicated to the Department on 15.11.2011, but it came to the knowledge of the authorities in the Head Office of the Customs Department on 17.11.2011 and hence on 18.11.2011 the Divisional Officer, Forbesganj had no information about the aforesaid order of this Court dated 14.11.2011 and as such show cause dated 18.11.2011 was inadvertently issued under section 124 of the Act.

13. Learned counsel for the opposite parties averred that two actions had taken place when the truck in question was found loaded with the consignment of betel nuts, the first being seizure and the second being investigation, out of which the seizure was quashed by this Court vide order dated 14.11.2011  passed in C.W.J.C. No. 12197 of 2011, but investigation continued and notice dated 18.11.2011 was only with respect to investigation under section 124 of the Act by Forebesganj Divisional Office and hence it was rightly issued and there was no question of any violation of the orders of this Court.

14. Learned counsel for the opposite parties asserted that the notices dated 09.02.2012 and 04.06.2012 for personal hearing were sent to the petitioner by the Superintendent at Head Office due to inadvertent misunderstanding of opinion of the Advocate in the light of order dated 25.04.2012 passed in L.P.A. No. 131 of 2012, but immediately after realizing that the same were flauting the order of this Court, the authorities recalled the said notices on 13.02.2012 and 13.06.2012, respectively. Hence he argued that neither there was any malice nor there was any intentional disobedience or violation of the order of this Court. However, the opposite parties tendered their unqualified apologies for any omission or commission on their part.

15. Considering the arguments of learned counsel for the parties and the materials on record, it is quite apparent that notices of personal hearing dated 09.02.2012 and 04.06.2012 have already been recalled by the authorities on 13.02.2012 and 13.06.2012, respectively and hence no case of contempt remains with respect  to the issuance of the said notices. However, the matter remains with respect to the show cause notice dated 18.11.2011 issued by the opposite parties to the petitioner under section 124 of the Act after order dated 14.11.2011 was passed by this Court in C.W.J.C. No. 12917 of 2011 quashing the order of detention and seizure of the betel nuts and the truck and the authorities were directed to release the truck and betel nuts loaded thereon immediately.

16. From the submissions of the opposite parties it is quite apparent that the aforesaid order of the High Court dated 14.11.2011 was communicated by the petitioner on 15.11.2011 and it also came to the knowledge of the authorities in the Head Office of the Customs Department on 17.11.2011 and hence opposite party-authorities should have complied the said order by releasing the truck and betel nuts loaded thereon immediately after the receipt/production of a copy of the said order and there was no occasion for them to demand 100% cash security and 100% Bond for the said release, specially when no such direction was given in the said order of the High Court and that too after about seven months i.e. vide letter dated 14.06.2012.

17. So far the show cause notice dated 18.11.2011 sent by the opposite parties is concerned, it is quite apparent that the same had been stayed vide order dated 08.02.2012 passed in C.W.J.C.  No. 22316 of 2011 filed by the petitioner and there is no material on record to show that the said order had ever been challenged or was ever interfered with. Hence there was no occasion for the said authorities to wait till April, 2012 for complying the said order of this Court dated 14.11.2011 passed in C.W.J.C. No. 12197 of 2011, by which the seizure and detention of the articles was quashed and immediate release of goods was directed, and then demanding security and bond for the release, although no such direction was given by this Court.

18. It is, thus, clear from the records that till date the opposite parties are giving effect to the show cause notice dated 18.11.2011 and are not releasing the goods, which is in direct confrontation with the judicial order of this Court dated 14.11.2011 passed in C.W.J.C. No. 12197 of 2011, which remained in force at least till 25.04.2012 when order of stay was passed in L.P.A. No. 131 of 2012 i.e. for more than five months, although the direction was for immediate release of goods. However, in any view of the matter order of the Assistant Commissioner, Customs dated 18.11.2011 was clearly in the teeth of and in violation of the said order dated 14.11.2011 passed by this Court.

19. Furthermore, from the scheme of the procedure of the  seizure, investigation and confiscation as provided under the Act, it is quite apparent that there is no scope for continuance of the investigation after the seizure and detention of the goods had been quashed by the court of law after considering the merits or otherwise of the claim of the respective parties based on their pleadings and materials. Hence the plea raised on behalf of the opposite parties with respect to investigation and confiscation is absolutely frivolous and ridiculous, to say the least, and had obviously been raised by their counsel merely to save them from the punishment of contempt, which they have clearly committed and continued committing it merely to punish the petitioner for his fault of approaching this Court.

20. It is also apparent from the claim of the opposite parties that they had tried to justify their action and simultaneously they had tendered unqualified apology. This double faced stance of the opposite parties is against the settled principle of law in such matters. The facts of this case clearly show that the Assistant/Deputy Commissioner, Customs (Prevention) Division, Forbisganj, District Kishanganj (opposite party no.3) has orchestrated the things and misconstrued the provisions of law to the detriment of the petitioner merely with the purpose to overreach the order of this Court dated 14.11.2011 passed in   C.W.J.C. No. 12197 of 2011. The said officer being a senior officer should have known his limits and jurisdiction and crossing those limits and jurisdiction in such a manner knowing full well the facts of this case as well as the specific order/direction of this Court and its repercussions, is clearly a gross contempt, which he has committed as has been proved beyond any semblance of doubt.

21. In these circumstances, this Court has no option but to hold the above named contemner guilty of contempt and punish him with simple imprisonment of three months, which must start within 30 days from the date of passing of this order and also with fine of Rs.2,000.00 (Rupees two thousand only), which must be paid within 30 days from today in favour of Patna High Court Legal Aid Society and receipt must be filed within the said period, failing which, imprisonment of the contemner shall be extended by one month more. The contemner must surrender before the Police within 30 days from today.

22. Registrar General of this Court is directed to take immediate consequential steps with respect to the above order and send a copy of this order to Senior Superintendent of Police, Patna, for taking immediate action in that regard for compliance of the order of this Court by taking all necessary coercive steps against the above named contemner if he fails to surrender within one month of this order.

23. Before parting with this order, this Court considers it incumbent on the facts as noted above that this order be placed before the Central Board of Excise & Customs, Delhi, constituted by the Central Government under the Boards of Revenue Act, 1962, for considering the proprieties of prosecuting the above named contemner under the provisions of the relevant Statute as this Court is afraid that the said act of the contemner may also come within the purview of corrupt practices.

24. With the aforesaid directions/observations, this M.J.C. case is disposed of. Let copies of this order be sent to the Central Board of Excise & Customs, Delhi and the Commissioner of Customs, Central Revenue Building, Birchand Patel Path, Patna, Bihar for its compliance without undue delay.

More Under Custom Duty

Posted Under

Category : Custom Duty (6692)
Type : Judiciary (10235)
Tags : high court judgments (4088)

Leave a Reply

Your email address will not be published. Required fields are marked *