Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 WP(C) NO. 13330 OF 2024 PETITIONER:
MOHAMED JABIR, AGED 31 YEARS, S/O. MOHAMED MUSTHAFA POTTACHOLA, POTTACHOLA HOUSE, EZHUR, TIRUR P.O., MALAPPURAM, PIN – 676101 BY ADVS.
ANUPAMA SUBRAMANIAN K.R.SRIPATHI RESPONDENTS:
1 THE COMMISSIONER OF CUSTOMS, OFFICE OF THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, GST BHAVAN, MANACHIRA, CALICUT, PIN - 673001 2 THE SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE DIVISION, 7TH FLOOR, MANANCHIRA ROAD, KOZHIKODE, PIN - 673001 3 THE STATION HOUSE OFFICER, KARIPPUR POLICE STATION, KARIPPUR P.O., MALAPPURAM DISTRICT, PIN – 673638 BY ADVS.
SRI.SREELAL N.WARRIAR, SC SRI.SREEJITH V.S., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT Dated this the 5th day of April, 2024 On 16.02.2024, the petitioner herein was travelling to his native place from Ras Al Khaimah in Air India Express bearing No.IX-332. Upon arrival, the 3rd respondent intercepted the petitioner herein and seized gold from him on the allegation that the said gold was illicit.
The 3rd respondent herein also seized the Passport of the petitioner bearing No.V5202442. The work VISA of the petitioner is due to expire on 11.04.2024 and the petitioner has to travel abroad before the said date for the purpose of his VISA renewal. The Passport of the petitioner has to be released for a short time in order to facilitate the renewal of work permit/VISA.
2.
The 2nd respondent filed an objection and submitted that a case has been registered against the petitioner under Section 102 CrPC on 16.02.2024 by the
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Karipur Police. The Inspector of Police, Karipur Police Station, as per his letter dated 16.02.2024 has reported that the petitioner was intercepted in front of the international arrival building, on his arrival from Ras Al-Khaimah (UAE) by Air India Express flight IX332, and as a result of further questioning and personal search, four capsule shaped gold in compound form, totally weighing 1160.7 gram were recovered, which were secreted inside his rectum.
3.
The said 1160.7 gram gold compound was then melted with the help of a certified goldsmith and as a result of melting process; gold of 24 carat purity weighing 1,099 gram was extracted in the shape of a lump. The value of the said 1,099 gram gold was ascertained to be ₹69,12,710/-.
The Karipur Police seized the said 1099 gram gold and the Passport of the petitioner under Section 102 CrPC. The seized gold was then produced before the Court of Judicial First Class Magistrate-1, Manjeri by the Karipur Police in accordance with Form 151A as item No.384/24 of JFCM-I, Manjeri.
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4.
Subsequently, the Karipur Police handed over the seizure report along with the Passport (No.V5202442) of the petitioner to this office on 11.03.2024 for initiating further proceedings under Customs Act, 1962. Though seizure report along with the said Passport was handed over to Customs Department by the 3rd respondent, unless the seizure is done under Customs Act this office cannot proceed with the investigation. The seizure done by the Karipur Police (Respondent No.3) is as per IPC but not under Customs Act.
5.
Hence, to proceed further with the investigation of the said 1099 gram gold which is under the custody of Court of Judicial First Class Magistrate-1, Manjeri, the Customs Preventive Division, Calicut had applied for release of the seized gold before the Court of Judicial First Class Magistrate-1, Manjeri under Section 451 CrPC by the Investigating Officer, Customs Preventive Division, Calicut.
It was also submitted before the Court of Judicial First Class Magistrate-1, that proceedings under Customs Act can be
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initiated only after receipt of the gold from Court and the Passport of the petitioner has been handed over to Customs by the Police.
6.
The 2nd respondent submitted that there are strong reasons to believe that this seized gold is of foreign origin which has been smuggled into India in violation to the provisions of Customs Act, 1962 and hence liable for confiscation under the provisions of Customs Act. Since the market value of the seized gold is above ₹50 lakh the petitioner is liable to be prosecuted under Section 135 of the Customs Act, 1962.
7.
The 2nd respondent further submitted that for initiating further proceedings under the Customs Act, the recovered gold has to be seized under Section 110 of the Customs Act, 1962, by Customs. If the Passport is released to the petitioner at this stage, he may leave India immediately after receiving the Passport. Absence of the petitioner would obstruct further actions like recording of statements, arrest, case investigation, issuing of notice etc.,
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which are the basic and mandatory proceedings under the Customs Act. If the Passport is released to the petitioner prematurely, the investigation will be stalled. As per the interim relief prayer by the petitioner, he requires his Passport to travel before 11.04.2024 for renewal of his work Visa.
8.
The 2nd respondent submitted that though release of the Passport to the petitioner may be detrimental to the case proceedings, this Court may pass appropriate orders as deemed fit for the interim release of the Passport to the petitioner, for a short term with conditions, to travel for the purpose of renewal of his work Visa.
9.
Standing Counsel entered appearance on behalf of the 1st respondent and submitted that the Passport can be handed over to the petitioner for the limited purpose of renewal of Visa/residence permit provided the petitioner shall deposit the Passport back after the short duration.
Taking into consideration the facts and circumstances of the case, the writ petition is disposed of
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directing that if the petitioner makes an application for handing over of Passport, the respondents shall handover the Passport for a period of 40 days on condition that the petitioner shall redeposit the Passport immediately after the stipulated 40 days period. The respondents also will be at liberty to impose additional conditions, if any, warranted in the facts of the case.
Sd/- N. NAGARESH JUDGE SR
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APPENDIX OF WP(C) 13330/2024 PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE TICKET OF THE PETITIONER DATED 16.02.2024.
Exhibit P2 A TRUE COPY OF THE RESIDENT AND IDENTITY CARD OF THE PETITIONER HEREIN CITING THE EXPIRY DATE AS 11.04.2024.