Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 10TH DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 WP(C) NO. 18439 OF 2023 PETITIONER:
ASEEM N., AGED 39 YEARS S/O NAZARUDHEEN, PULIYARAVILAKATHU VEEDU, NELLANAD, THIRUVANANTHAPURAM., PIN – 695606 BY ADV LATHEESH SEBASTIAN RESPONDENTS:
1 JOINT COMMISSIONER OF CUSTOMS (PREVENTIVE), CATHOLIC CENTRE, BROADWAY, ERNAKULAM – 682031.
2 ASSISTANT COMMISSIONER OF CUSTOMS, CUSTOMS PREVENTIVE DIVISION, GST BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM, PIN – 695001 3 STATION HOUSE OFFICER, VENJARAMOODU POLICE STATION, THIRUVANANTHAPURAM, PIN – 695606 BY ADVS.
SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE RAJESH. K.RAJU OTHER PRESENT:
SR GP SRI GOPINATHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.18439/2023 -:2:- Dated this the 10th day of August,2023 J U D G M E N T The writ petition is filed, inter alia, to direct the respondents 1 & 2 to return the petitioner’s mobile phones within a time period fixed by this Court.
2.
The petitioner’s case is that, he is working abroad since 2008. On 19.10.2022, after he returned from Sharjah, the officials of the second respondent inspected his house and alleged that he had smuggled gold. There was an altercation between the petitioner’s friends and the officers of the respondents. The third respondent had registered Crime No.1340/2022. The respondents 1 & 2 seized certain articles from the petitioner’s residence, including two of his i-phones(mobile phones). The second respondent had issued Ext P2 show cause notice under Section 124 of
W.P.(C)No.18439/2023 -:3:- the Customs Act,1962(in short,’Act’), wherein the details of the I-phones are conspicuously absent in the list of confiscated items. Consequent to the judgment passed by this Court in W.P.(C)No.13360/2023, the petitioner's passport has been returned to him. Under Section 110(2) of the Act, if the respondents do not issue a notice under Section 124 of the Act, they are legally obliged to unconditionally return the seized articles. As the seizure was on 19.10.2022 and the time period of six months has lapsed, the respondents 1 & 2 are bound to return the petitioner's mobile phones.
Hence, the writ petition.
3.
The respondents 1 & 2 have filed a statement, through their Standing Counsel, denying the allegations in the writ petition. It is contended that the petitioner’s friends had assaulted the officials of the respondents 1 & 2. The involvement of the petitioner
W.P.(C)No.18439/2023 -:4:- in the matter, can only ascertained after the verification of the call details from the seized mobile phones and the investigation is completed. The investigation is at its nascent stage. Moreover, the first proviso to Section 110(2) of the Act confers power on the Principal Commissioner of Customs, to extend the time period of confiscation by a further period of six months. Hence, the writ petition may be dismissed.
4.
Heard; Latheesh Sebastian, the learned counsel appearing for the petitioner, Sri. Rajesh.
K.Raju, the learned counsel appearing for the respondents 1&2 and Sri. Gopinathan, the learned Senior Government Pleader appearing for the third respondent.
5.
Section 110(1) of the Act empowers the proper officer, who has reason to believe that any goods are liable to be confiscated to seize such goods.
W.P.(C)No.18439/2023 -:5:- It is apposite to extract Section 110(2) of the Customs Act,1962, which reads as follows:
“(2)Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they we seized:
PROVIDED that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend such period to a further period not exceeding six months and inform the person from whom such goods were seized before the expiry of the period so specified:
PROVIDED FURTHER that where any order for provisional release of the seized goods has been passed under section 110A, the specified period of six months shall not apply.” 6.
A reading of the above provision undoubtedly establishes that the seized goods have to be returned to the person from whose possession they were seized within six months from the date of seizure. True, the proviso confers power on the Principal Commissioner, to extend the period of six months by a further period of six months.
W.P.(C)No.18439/2023 -:6:- 7.
Admittedly, the mobile phones were seized from the petitioner on 19.10.2022. The six months’ period has lapsed on 19.04.2023.
8.
Indisputably, the Principal Commissioner of Customs has not extended the time period as postulated under the proviso to Section 110(2) of the Act.
9.
In the above legal and factual analysis, I am of the definite view that the continued detention of the mobile phones by the respondents is illegal and untenable. Therefore, the respondents are to be directed to forthwith return the mobile phones to the petitioner.
Resultantly, I order the writ petition as follows:
The respondents are directed to return the petitioner's mobile phones to him, in accordance with law, within a period of one week from the date of receipt of a certified
W.P.(C)No.18439/2023 -:7:- copy of this judgment.
Sd/- C.S.DIAS,JUDGE DST/10.08.23 //True copy// P.A.To Judge
W.P.(C)No.18439/2023 -:8:- APPENDIX PETITIONER EXHIBITS EXHIBITP1 TRUE COPY OF THE CITIZEN COPY OF THE FIR IN CRIME NO 1340/2022 OF VENJARAMOODU POLICE STATION EXHIBITP2 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 04.04.2023 RESPONDENT ANNEXURES ANNEXURE 1 A TRUE COPY OF THE SHOW CAUSE NOTICE NO.1/2023-24-CUS DATED 4/4/2023 ISSUED TO PETITIONER BY THE 2ND RESPONDENT ANNEXURE 2 A TRUE COPY OF THE SEIZURE MEMO NO.OR NO.02/2022-23/CP
AND
NU-1/TVM
DATED 20/10/2022 OF THE SUPERINTENDENT OF CUSTOMS,CUSTOMS PREVENTIVE AND NARCOTICS UNIT-1,THIRUVANANATHAPURAM