Disposed

M/S.Plus Max Duty Free (Private) Limited v. the Union of India

Kerala HC21 Dec 2018WP(C)/21063/2018

Case brief

AI extract

What is this about?

Suspension of a special warehouse licence and closure of airport duty-free shops were challenged during a customs investigation. The Court set aside both orders and directed immediate reopening under departmental supervision. Finding investigative bias, it directed another officer to complete the investigation using the material already gathered.

What did the court decide?

Exts.P18 and P19 set aside; immediate supervised reopening directed; remaining investigation and consequential measures entrusted to another officer using existing material.

M/S.Plus Max Duty Free (Private) Limited Vs the Union of… — Customs and Excise | Kerala HC (2018)

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C.R.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940

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WP(C).No. 21063 of 2018

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PETITIONER/S:

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M/S.PLUS MAX DUTY FREE (PRIVATE) LIMITED HAVING REGISTERED OFFICE AT NO. 86/18, ROYAL COMPLEX, SANKARI ROAD, SEETHARAMAPALAYAM, THIRUCHENGODU, NAMAKKAL, TAMIL NADU - 637 209, REP.BY ITS AUTHORIZED SIGANTORY, MR. SARAVANAN SUBRAMANI.

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BY ADVS. SRI.SATISH PRASANNEN (SENIOR) SRI.C.P.MOHAMMED NIAS SRI.K.M.D.MUHILAN SRI.SUBHANG P.NAIR

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RESPONDENT/S:

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1 THE UNION OF INDIA

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REP. BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, NEW DELHI - 110 001.

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2 THE AIRPORTS AUTHORITY OF INDIA RAJIV GANDHI BHAWAN, SAFDARJUNG AIRPORT, BLOCK - A, NEW DELHI - 110 003.

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3 THE AIRPORTS AUTHORITY OF INDIA REGIONAL HEAD QUARTERS-SOUTHERN REGION, CHENNAI AIRPORT, CHENNAI - 600 027.

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4 THE AIRPORTS AUTHORITY OF INDIA TRIVANDRUM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM - 695 008.

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5 THE CHIEF COMMISSIONER OF CUSTOMS THIRUVANANTHAPURAM ZONE, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, ERNAKULAM - 682 018.

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6 MR. SUMIT KUMAR THE COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR,

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W.P.(C) No.21063/2018

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CATHOLIC CENTER, BROADWAY, COCHIN, ERNAKULAM - 682 031.

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7 MR. VIVEK VASUDEVAN NAIR THE SUPERINTENDENT OF CUSTOMS, 5TH FLOOR, CATHOLIC CENTER, BROADWAY, COCHIN, ERNAKULAM - 682 031.

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8 THE SUPERINTENDENT OF CUSTOMS AIR INTELLIGENCE UNIT, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM - 695 024.

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9 SUPERINTENDENT BOND AIR CUSTOMS, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM - 695 024.

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10 THE COMMISSIONER OF CUSTOMS (PREVENTIVE) 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN, ERNAKULAM 682 031

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11 THE DEPUTY COMMISSIONER OF CUSTOMS, AIR CUSTOMS, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM 695 024.

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12 STATION HOUSE OFFICER, VALIYATHURA POLICE STATION, THIRUVANANTHAPURAM

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R10 & R11 ARE IMPLEADED AS PER ORDER DATED 31.07.2018 IN I.A. 13830/2018

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R12 IMPLEADED SUO MOTU VIDE ORDER DATED 18.09.2018

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BY ADVS.

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SRI.JAISHANKAR V.NAIR, CGC SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR CUSTOMS,COCHIN COMMISSIONERATE SRI.V.SANTHARAM

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SRI.SASTHAMANGALAM AJITHKUMAR PP FOR CUSTOMSCOCHIN COMMISSIONERATE

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OTHER PRESENT:

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SRI SREELAL N. WARRIER, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

Introduction :

In a global tender, a Company from foreign shores secures a contract. That contract is to run a complex of duty-free shops in an International Airport. The Customs Department receives complaints and acts on them. It inspects the warehouse and duty-free shop, summons records, checks records, suspects malpractice, complains to several investigating agencies, hands down press briefings and, then, suspends the Company’s license.

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The Company complains of harassment, of injury, and of infamy. It accuses the Customs officials of violating the law and procedure. So it approaches a departmental superior. That authority orders the business restoration; yet the officers on the field. As a result, the Company comes to Court. The Airport Authority laments wanton waste. It claims to have been caught in the cross fire between the Customs and the Company. It shows huge loss to the exchequer. Thus, the questions to be answered are these:

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(1) Balanced between the departmental necessity and public

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interest, is the business banishment the only just measure available pending the investigation?

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(2) Have the officials been biased—acting in bad faith?

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(3) In an administrative set up, can an official in the lower rung ignore a directive from the higher rung, on any assumed notion—say, that he acted quasi-judicially but the directive is administrative?

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Facts :

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Petitioner Plux Max Duty Free (Pvt.) Ltd., (“the Company”), operates the Duty-Free Shop at Thiruvananthapuram International Airport. It claims to have registered itself as a Special Purpose Vehicle for setting up duty-free shops, among other places, in Trivandrum International Airport. The Company contracted with Airport Authority of India (“AAI”) to develop, operate, and maintain duty-free outlets at the Trivandrum International Airport.

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After the initial tender in December 2015, the Company was given the Letter of Intent on 06.01.2016. Because of the litigation initiated by the previous licensee, the Company, however, could

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commence its operation only in September 2017. Thus, it ran the dutyfree shop in the Airport since then—till recently.

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In fact, from September to December 2017, the Company

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ran the duty-free shop, it seems, without an incident. Then, in December, acting on what appears to be an anonymous complaint, the Commissioner of Customs (Preventive), the sixth respondent, (shown eo nominee) began to inquire into the Company’s alleged irregularities. As part of his inquiry, the Commissioner, in April 2018, summoned the Company’s manager. How the inquiry was conducted or being conducted and how judicial directives were given to preserve fairness in the inquiry and to prevent physical abuse if any, are not, I reckon, germane right now.

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Pending inquiry, the Commissioner, acting under Section 58 B (2) of the Customs Act, 1962 (“the Act”), suspended the Company’s operations—at the special warehouse, which was licensed in August 2017. That was through the Ext.P18 order, dt.19.04.2018. Later, another authority passed the Ext.P19, a consequential order, restraining the Company from carrying on its operations in the duty-free shops at the

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Airport, as well.

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Aggrieved, the Company represented to the higher officials in the Department. Then, the Chief Commissioner of Customs, the fifth respondent, passed the Ext.P21 order, permitting the Company to resume its operations at the Airport. Though the order was issued on 24.07.2018, the Commissioner did not allow the Company to resume its operations. In the meanwhile, the Commissioner has held continual press conferences and declared the Company’s yet-to-be-established guilt to the world. Further, goes the allegation that the Commissioner has also complained about the Company to every conceivable authority.

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In the above backdrop, the Company filed this Writ petition. This Court, per a Single Judge, on 26.06.2018 issued an interim direction: it suspended the Ext.P18 order pending further adjudication. The Customs Department, then, filed an intra-court appeal—WA No.1278 of 2018—questioning the interim order. Through its judgment, dt.06.07.2018, the learned Division Bench relegated the parties to the pending writ petition. It closed the writ appeal, requiring the parties to maintain status quo till the writ petition is disposed of. Under those

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circumstances, I have taken up the main writ petition for disposal.

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Submissions :

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Petitioner’s :

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Sri Satish Prasannen, the learned Senior Counsel, has, to begin with, addressed the threshold issue: the alternative remedy. He has drawn my attention to Section 129A of the Act to contend that the impugned order (Ext.P18) is administrative and, so, does not compel the Company to invoke Section 129A. In the alternative he has also submitted that if the impugned order were to be a quasi-judicial order, it offended the principles of natural justice. The officials, he also maintains, have acted in utter disregard of the Company’s fundamental right under Article 19 (1) (g) of the Constitution. On this proposition, the learned Senior Counsel relies on S.J.S. Business Enterprises (P) Ltd. v. State of Bihar^[1] , ; S. N. GovindaPrabhu v. Additional Sales Tax Officer^[2] , C. Vibin P.V., v. State of Kerala^[3] .

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About the Ext.P21 order passed by the Chief Commissioner,

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Sri Prasannen argues that he is eminently empowered to pass that order.

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1^[] (2004) 7 SCC 166

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2^[] (1985) 59 STC 33

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3^[] AIR 2013 Kerala 67

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As for the Chief Commissioner’s source of power, he draws my attention

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to Section 5 of the Act. According to him the refusal of the Commissioner and others to abide by the Ext.P21 is sheer insubordination. He also asserts that Section 58B of the Act only deals with the suspension of warehouse licence; it does not, then, affect the Duty-Free Shop. Besides, Sri Prasannen has elaborated on the alleged manhandling of the Company’s personnel and also misinformation the Commissioner has allegedly indulged in with frequent press briefings and complaints to every investigating agency across the country. He relies on Texaco, Inc., v. Federal Trade Commission.^[4]

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Sri Prasannen has contended that the Company’s staff have entirely cooperated with the Customs officials, but certain officials, arrayed eo nominee, have been endlessly harassing them; he cites, as a case in point, the incident involving Mr. Madan, its stores manager, who was allegedly assaulted brutally. It has led to his lodging a police complaint, too. The learned Senior Counsel has dwelt on the official bias and prejudging. According to him, the sixth respondent has held numerous press conferences and spread canards only with the sole aim of 4 336 F.2d 754 (D.C. Cir. 1964)

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discrediting, rather vilifying, the Company. He also stresses that the sixth respondent has complained to every investigating agency in India, including the CBI, ED., as if the Company had been indulging in any trans-border crimes.

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In fact, Sri Prasannen has advanced his arguments spanning across a couple of whole days. To avoid repetition, I will address them in my fact-analyses. One constant, invariable theme in Sri Prasannen’s assertion is that the Duty-Free Shop closure is uncalled for. According to him, since December 2017, the Company has been submitting its sales reports to the Customs Officials twice a day, with full details of the sales made, along with a detailed statement explaining the individuals to whom the sales were made. So, their closing the establishment from 19.04.2018 stands denuded of any reason; it is, he stresses, only an act of vengeance and vindictiveness.

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Respondents’ :

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Customs Department :

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Sri Natraj, the learned Addl. Solicitor General (ASG) attacked the writ petition, first, on the grounds of maintainability. For

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this, he presses into service both latches and alternative remedy. According to the learned ASG, the sixth respondent passed an impugned order in April 2018, but the petitioner waited for over two months to file the writ petition. In the alternative, he asserts that the impugned order can be appealed against under Section 129A of the Act. As to the adjudicatory authority's powers, Sri Natraj draws my attention to Section 2(1) of the Act. Then he stresses that the Act is a complete code and an order referred to in Section 2(1) takes in an interim order. To support his contentions, he relies on Raj Kumar Shivhare v. Directorate of Enforcement^[5] .

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Sri Natraj argues that the Company has given license for the warehouse with a particular description as shown in Ext.P5. But the Company surrendered the license to the Airport Authority and has taken another larger extent. So urges the learned ASG that the very subject of dispute has changed. Nothing survives but the writ petition fights over the extent of property already surrendered. Thus, Sri Natraj justifies the suspension of the petitioner's license. For this, he relies on Section 58A and Section 58B.

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5^[] (2010) 4 SCC 772

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One contention the Company raised was that it had no opportunity of defending itself before the sixth respondent passed the impugned order. To meet that contention, Sri Natraj submits that suspension is only an interim measure and it calls for no opportunity of hearing. To drive home his point, he relies on Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia^[6] and South Central Railway v. G. Ratnam^[7] .

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Ext.P19 is the order the Chief Commissioner of Customs passed directing the officials to reopen the duty-free shop complex. As the authorities did not implement that, the learned ASG asserts that, under the scheme of the Act the Chief Commissioner is not an appellate authority to interfere with the impugned order. In that context, he draws my attention to Section 5 of the Act.

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Both the respondents 5 and 6 faced the allegations of mala fides. To meet that allegation, Sri Natraj asserts that an allegation of mala fides required objectives to be fulfilled: specific pleading and particular proof. According to him, neither is present. About the

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6^[] (2004) 2 SCC 65

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7^[] (2007(8) SCC 212

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manner of enquiry, Sri Natraj strenuously contends that the authorities have acted well within their powers. According to him, under Section 108 of the Act, an investigating officer has the power to summon any person. On the other areas of investigation, he refers to Sections 195 and 197 of the Act. About the pending criminal cases against the sixth respondent, Sri Natraj points out that the Company has never sought the Government's sanction though the complaint involves a public servant. About mala fides and the power of the authorities to investigate, the learned ASG relies on these decisions: Punjab Vs. V.K. Khanna and Ors.^[8] , Union of India v W.A.Chadha^[9] , State of Bihar v. P.P. Sharma^[10] , Divine Retreat Centre v. State of Kerala^[11] , Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal^[12] , Gulam Mustafa v. State of Maharashtra^[13] , Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and Ors^[14] .

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8^[] 2001(2) SCC 330

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9^[] 1993 Suppl.(4) SCC 260

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10^[] 1992 Supp (1) SCC 222

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11^[] (2008) 3 SCC 542

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12^[] (2007) 8 SCC 418

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13^[] (1976) 1 SCC 800

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14^[] AIR 2007 SC 38

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In the end, the learned ASG urges this Court to dismiss the writ petition as it is not only pre-mature, but also unsustainable.

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Airport Authority of India’s :

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Sri V. Santharam, the learned Standing Counsel for Airport Authority of India, has complained that because of the rigid, unjustified attitude the Customs authorities have adopted, the public interest has immensely suffered. For many months, the duty-free shop complex remains closed. According to him, besides Airport Authority loosing substantial revenue, many passengers have chosen to land, say, at Cochin International Airport, to use the service of a duty-free shop there and then proceed to Thiruvananthapuram. In other words, as he puts it, the Airport Authority has been caught in the cross fire of egos of the departmental authorities and company representatives.

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About the manner of investigation, first, Sri Santharam clarifies that Airport Authority as Union Government's establishment does not desire to take a stand. Yet it wants to fairly place on record, as it has already done, about what he terms the highhanded approach the Customs authorities have adopted. According to him, on 21.12.2017, the

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Customs officials inspected the duty-free shop complex in the airport. In that context, the security agency found the activities of the Customs authorities recorded in the CC cameras. Thus, he refers to Ext.P10 and presses that the sixth respondent's subordinate officials used physical force against the Company's employees.

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Sri Santharam further submits that the officials of the Airport Authority have all along co-operated with the Customs Department every time they were summoned. The officials of the Airport Authority appeared before the authorities, produced the records and faced the inquiry. Despite all these, the respondent authorities, especially the sixth respondent, have been acting highhandedly and harassing the Airport Authority's employees with no justification. Sri Santharam stresses that the entire investigation the Customs Department has undertaken involves no element of criminality and all the allegations if proved would stand answered with the payment of requisite penalty.

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At this juncture, the learned ASG, a retort, submits that both the Customs Department and the airport authority are the establishments of Union of India, they cannot work at cross purposes,

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nor can they stand before the Court accusing each other. According to him, the Ministry of Law & Ministerial Affairs has given clear directions to all the departments concerned to defend the Government's interest by taking unified stand. Then, Sri Santharam has submitted that the Airport Authority has asserted only with a sense of responsibility. He has also pointed out that a responsible officer of the Airport Authority has filed an affidavit setting out the hostile attitude the Customs officials have adopted in this whole episode.

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Customs Department’s Reply :

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Then, the learned ASG sought the Court's leave to reply, though he represents the respondent Customs Department. Leave granted, he continued the submission. According to him, the Customs authorities have acted in strict statutory compliance. Then he has submitted that this Court may not interfere with an interim order for that falls beyond the adjudicatory ambit of Article 226. In support, he relies on Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd.^[15] , Special Director v. Mohd. Ghulam Ghouse^[16] and Union of India and

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15^[] (2013) 1 SCC 524

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16^[] (2004) 3 SCC 440

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Anr v. Kunisetty Satyanarayana^[17] .

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Company’s Reply :

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Sri Prasannen, in his reply, has submitted that the entire

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proceeding and the Ext.P18 order stand vitiated on the singular ground of bias. According to him, the authorities have acted with the predetermined notion of forcing the Company to close its business. To support his contentions, he relies on Manuelsons Hotels (P) Ltd. v. State of Kerala^[18] , and State of W.B. v. Shivananda Pathak.^[19]

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Discussion :

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I. The Issues & the Parties :

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To remind ourselves, these are the issues to be addressed:

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(1) Balanced between the departmental necessity and public interest, is the business banishment the only just measure available pending the investigation?

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(2) Have the officials been biased—acting in bad faith?

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17^[] AIR 2007 SC 906

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18^[] (2016) 6 SCC 766

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19^[] (1998) 5 SCC 513

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Of the respondents, the first is the Union of India; the second to the fourth are the different tiers of the Airport Authority of India; the fifth is the Chief Commissioner of Customs. The sixth and the seventh respondents are the Customs officials arrayed eo nomine (by name); they are officially arrayed as tenth and eighth respondents: the Commissioner of Customs (Preventive) and the Superintendent of Customs respectively. The ninth respondent is the Superintendent (Bond), the 11th respondent is the Deputy Commissioner of Customs, and the 12th respondent is the Station House Officer.

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II. The Background :

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The Company secured the Ext.P5 special warehouse license from the Customs Department. With that, it has operated the warehouse as well as the Duty-Free Shop. As per the arrangement with Airport Authority, the Company must pay to it a minimum annual guaranteed amount of US 23,50,400 (around INR 1.50 crores per month) as royalty.

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About its conduct, now being investigated, the Company supplies justification. In December 2017, the Company noticed a thirdparty’s unauthorised use of its data, “including the digital records of the

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documents required to be submitted to the Customs Department and other authorities.” On 16.12.2018, it lodged a complaint before the Namakkal Police Station: Crime No.24 of 2017. Through a letter, dt.19.12.2017, it informed of this development to the Superintendent (Bond), the ninth respondent. In the meanwhile, the Commissioner received an anonymous complaint. It alleged that the Company has involved itself in improper sales of duty-free goods at the Airport. So the Superintendent of Customs, the eighth respondent, issued a summons, dt.16.12.2017, under Section 108 of the Act, to one Madhan, the Company’s Local Manager. Madhan did attend the Superintendent’s office on 17.12.2017, when his statement was recorded.

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On 21.12.2017, the Inspector of Customs, in the Superintendent’s presence, inspected the warehouse and duty-free shop. He found that the stock in the warehouse did not tally with that mentioned in the duty-free bond register. The officials inspected the staff’s residential quarters, too. The Company claims that no incriminating material was found, as detailed in the mahazar, dt.21.12.2017. Again, on 21.12.2017, the Superintendent, allegedly on the

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Commissioner’s instructions, asked Madhan to appear before him.

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In this context, the Company alleges that Madhan was pressurised to give a false statement, but he did not yield. So the Superintendent and two other officials “brutally manhandled” him. Of this incident, after examining the CCTV footage, the Central Industrial Security Force (CISF) seems to have submitted “an incident report” on the same day; that is, 21.12.2017. On Madhan’s complaint, Valliathura Police Station has registered Crime No.2248 of 2017, too.

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Then, on 19.04.2018, the Commissioner passed the Ext.P18 order, purportedly under Sec. 58B (2) of the Customs Act, 1962. That order has suspended the Company’s special warehouse license with immediate effect, pending enquiry. The order also restrains the Company from depositing any more goods in the special warehouse during the suspension. Soon thereafter, on 20.04.2018, followed the Ext.P19 order, passed by the Superintendent. That follow-up notice stops all operations in the Duty-Free Shops in the International Airport.

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Aggrieved, the Company complained to the Chief Commissioner of Customs. That authority issued the Ext.P21 order. He

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ordered the Customs officials concerned to let the Company carry on its

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business. But the Commissioner and other officials remained unmoved. As part of the inquiry, it seems, the authorities arrested the Company’s CEO on 02.06.2018. Besides that, the Commissioner has held several press conferences, vilifying the Company and its personnel. He lodged complaints with many Central Investigating Agencies: the Director, Serious Fraud Investigation Office, New Delhi, CBI, ED., to name a few. (a) Earlier Writ Petition :

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With Madhan’s episode, the Company complained to this Court about the official excesses in the name of investigation. On 16.01.2018 this Court in W.P.(C) No. 1641 of 2018 permitted the Company to have a lawyer when its employees would be interrogated by the Customs officials. Then on many dates, in quick succession, the Customs officials summoned the Company's employees and, it seems, recorded their statements. The Company accuses the Commissioner of mala fide conduct; so it has, in this writ petition, brought him on record eo nomine, too.

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(b) Interim Order in this Writ Petition :

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First, in this writ petition, this Court granted a detailed interim order; it suspended the Exts.P18 & P19 orders and asked the Customs Department to allow the Company to operate the Duty-Free Shop. On appeal, in W.A. No.1278 of 2018, a learned Division Bench has remanded the matter for an early disposal. The Duty-Free Shop, thus, remains closed. In this context, the Airport Authority bemoans the loss to the exchequer and the inconvenience the international passengers have been facing because of the Duty-Free Shop closure.

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Against the interim order, dt.26.06.2018, the Department filed W.A No.1278 of 2018. Then, a learned Division Bench, through its judgment dt.06.07.2018, ordered the parties to maintain status quo, and remanded the matter for final adjudication.

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III. The Departmental Defence :

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The Department maintains that it has received numerous complaints from many passengers that they have purchased nothing from the duty-free shop, but the employees at the duty-free shops illegally

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took their details. According to the Department, given the gravity of the allegations the Company faced, it has felt that the Company's action would even amount to breaching the national security. In that context, the Department maintains that the Company’s employees secured the passport details of nearly thirteen thousand international passengers for diverting foreign liquor to the black market. And this has forced the competent authority to suspend the petitioner's warehouse license. As it summarizes the Company's alleged misconduct, and also as it supplies the justification for the authorities to suspend the Company's warehouse license, it pays to extract this portion from the respondent's counter-

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affidavit:

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“Under these circumstances, keeping in mind the gravity of the issue involved and taking note of the violation of the license conditions and rules under the Customs Act, the Competent Authority was forced to suspend the warehouse license of the petitioner. Furthermore, the petitioner-Company has clandestinely obtained passport details for nearly 13,000 international passengers who have travelled to the airport, for diverting foreign liquor to the black market thereby misusing immigration data and further fabricated evidence amounting to breach of National Security.”

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As the record reveals, the Department justifies the license

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suspension broadly on these grounds: (a) prima facie the Company has violated the Special Warehousing License conditions; and (b) it has

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suppressed or manipulated the sales data. So these factors necessitated immediate action to prevent further loss to the exchequer and further manipulation of data or documents. To summarize, I may list out the Department's allegations:

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(i) By storing the goods imported duty-free in a place other than the special warehouse; the Company has violated the license conditions. (ii) The Company has failed to submit mandatory monthly documents as stipulated in the notifications.

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(iii) The Company has failed to maintain documents in digital form. And also failed to submit documents on time, on etude that its computer systems were hacked. But M/s. C-Dac Trivandrum has later falsified that plea.

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(iv) The Company has illegally removed goods from the bonded warehouse without the knowledge of the Bond Officer and other concerned Customs officials.

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(v) The Company has tampered with the Board register.

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(vi) The Company has also tampered with the release application forms.

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IV. The Statutory Scheme :

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Section 2(1) of the Customs Act defines the "adjudicating

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authority" as any authority competent to pass any order or decision under this Act. It of course excludes the Board, the Commissioner (Appeals), and the Appellate Tribunal. Section 5 of the Act broadly sets

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out the powers of the Customs officers. The officers exercise their powers

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subject to the limitations the Board may impose. Subsection (2) mandates that an officer of Customs may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of Customs who is subordinate to him.

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Indeed, Section 58A deals with the licensing of special warehouses. The Principal Commissioner of Customs or Commissioner of Customs may license a special warehouse, in which dutiable goods may be deposited. The licenced warehouse must be “locked by the proper officer and no person shall enter the warehouse or remove any goods therefrom without the permission of the proper officer.”

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And Section 58B of the Act deals with cancellation of licence. If a licensee contravenes any of the provisions of this Act or the rules or regulations or breaches any of the conditions of the licence, the Principal Commissioner of Customs or Commissioner of Customs may cancel the licence granted under section 57 or section 58 or section 58A. But before any licence is cancelled, the licensee shall be given a reasonable opportunity of being heard.

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What assumes importance is the subsection (2). According to it, the Principal Commissioner of Customs or Commissioner of Customs may, without prejudice to any other action that may be taken against the licensee and the goods, “suspend operation of the warehouse during the pendency of an enquiry under sub-section (1).” Subsection (3) sets out the consequences to licence suspension.

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Section 108 empowers the Customs officer to summon persons to give evidence and to produce documents. And Section 129A provides for an appeal to the Appellate Tribunal against, for instance, the decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority.

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V. The Issues in Perspective :

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First, I must set the adjudicatory bounds to the issues now I undertake to discuss. But this writ petition has come before this Court with the departmental action still pending. It is more a complaint what the Department officials are doing, rather than what they have already done. Had it been the latter, that would have given rise to a completed cause of action for the Company to assail. The matter, thus, lies in the

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procedural precincts—not in the substantive sphere. Second, my observations on the allegations and counter allegations, then, should remain confined to the propriety of the procedural measures the Department has undertaken to determine the allegations against the Company. Third, about the alleged excesses of the Department authorities, even a criminal case is pending. On the other hand, about the Company’s alleged malpractices, the Department seems to have alerted the central investigative agencies. The departmental propriety of ringing the alarm bells even before the officials could complete the investigation, though, is not the issue here.

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Then, it follows that all my observations relate to only one issue: Should the warehouse and the duty-free shops in the International Airport remain closed until the departmental investigation or inquiry concludes?

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That said, I acknowledge that adjudication is not an inert intellectual exercise, undertaken in emotionally sterile atmosphere. Indeed, such an adjudication is an ideal, mostly—if not impossibly— unattainable, for the courts, too, deal with the lives and their miseries,

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with the laws and their complexities, with the powers and their perversities. So all the observations are prima facie, and are meant only to dispose of the issues on hand, unaffecting the substantive rights of either party.

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(a) Alternative Remedy :

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It is the threshold issue, so it needs upfront adjudication. Sri Natraj, the learned ASG, asserts that the impugned order can be appealed against under Section 129A of the Act. About the adjudicatory authority's powers, he draws my attention to Section 2(1) of the Act and, then, stresses that the Act is a complete code by itself. Indeed, Section 2(1) defines "adjudicating authority" to mean any authority competent to pass any order or decision under this Act. But that expression does not include the Board, the Commissioner (Appeals), or the Appellate Tribunal.

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And under Section 129A of the Act, any aggrieved person can appeal against a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as “an adjudicating authority.” In Raj Kumar Shivhare, the Supreme Court has

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relied on its earlier Constitution Bench decision in Thansingh Nathmal

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v. Supdt. of Taxes^[20] , also a decision on a fiscal law. Commenting on the High Court’s expansive exercise of jurisdiction under Article 226—subject to of course its self-imposed limitation—Thansingh Nathmal has observed as follows: the High Court does not act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by a statute. “[W]here it is open to the aggrieved petitioner to move another tribunal, or even [the High Court] itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution.”

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Much has been said about the alternative remedy and much more will be said with the passing time. Abundant adjudicatory water keeps flowing under the judicial bridges on this count. No doubt, it is a fertile field of forensic deliberations, the expressions such as “selfimposed limitation” and “normally” remaining ever elastic—and even nebulous. No decision is going to put a seal of finality on this contested

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20^[] AIR 1964 SC 1419

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concept. On the exceptions to the alternative remedy, oft-quoted is the proposition laid down in Whirlpool Corporation v. Registrar of Trade Marks^[21] . Those exceptions are these: (i) when the petitioner’s fundamental rights are affected; (ii) when the principles of natural justice are violated; or (iii) when the impugned proceedings are ultra vires.

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First, the adjudication in this Writ Petition is on remand from the appellate forum: the Division Bench. It has been pending for a while. Second, what constraints the Court under Article 226 of the Constitution is the “Self-Imposed” restriction, not “Other-Imposed” restriction. Putting this self-imposed restriction into a precedential straight-jacket is a paradox, a contradiction in terms. Judicial Review is the basic feature of the Constitution and stands conferred on the High Court, on a par with the Supreme Court—and on a wider-scale, at that. Efficacy is one element that weighs with the Court to decide on this eversimmering issue. Indeed, many are these self-imposed restrictions, the disputed question of fact being one; equally numerous are the exceptions, the public interest being one.

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21^[] (1998) 8 SCC 1

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Duty-Free Shop is one of the chief attractions of the International Airport. In any public-law dispensation, public interest is paramount. Let us see what the Airport Authority—a governmental agency as the Customs Department is a Governmental Department—has to say on this.

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(b) Natural Justice, Prima Facie Case, and Abuse of discretion :

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The Company has relentlessly contended that the Exts.P18 and P19 suffer from the vice of violating the principles of natural justice. It has contended that the Customs authorities ought to have put the Company on notice before they suspended its license. It has also contended that the respondent authorities have no material warranting the licence suspension. Then, it has also contended that the authorities have taken recourse to abuse of discretion.

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In Institute of Chartered Accountants vs LK Ratna & Ors. [22], the issue is whether a member of Institute of Chartered Accountants is entitled to hearing by Council of Institute. That opportunity of hearing was sought after the Disciplinary Committee submitted to the Council a report of its enquiry into the allegations of misconduct

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22^[] 1986 4 SCC 597

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against a member. The Supreme Court has held that failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.

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In Common Cause v. Union of India,^[23] an authority’s conduct in distributing the public largess came to be considered. Then, the Supreme Court has considered "misfeasance in public office", which

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is a specific tort. On facts, it has held that the ingredients of that tort

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were not wholly met in the case. But the Court has observed that even where no recognized tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate, or injurious wrong-doing. There is thus a tort called misfeasance in public office, and that includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury.

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In Manjit Singh Moolsingh Sethi v. Maharashtra Assembly^[24] a Full Bench of the Bombay High Court has underlined the importance of decisional finality of any judicial proceeding and

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23^[] 1999 6 SCC 667 24^[] 2007 (1) CTC 42

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disapproved the pernicious practice of bench hopping or bench hunting. In The Collector (District Magistrate) Allahabad v. Raja Ram Jaiswal,^[25] the issue concerns the Land Acquisition Act and the procedural nittygritty—especially opportunity of hearing.

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The Supreme Court in Bahadursinh Lakhubhai Gohil has stressed the principle of abdication in Administrative Law. According to it, if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires. In G. Ratnam, the Supreme Court reiterated the doctrine of substantial compliance. It has examined what follows on someone’s breaching procedure. If the provision is not mandatory, the alleged violation has to be examined from the stand point of substantial compliance. In other words, the order passed in violation of a procedural mandate can be set aside only if the violation has occasioned prejudice to a party.

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Raj Kumar Shivhare has dealt with the principle of forum non conveniens and the territorial jurisdiction involving the Union Government.

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25^[] 1985 3 SCC 1

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In W.N. Chadha the Supreme Court has discouraged the courts’ making sweeping or conclusionary remarks at the threshold stage, say, of investigation. Courts’ observations should prejudice neither party. A writ petition lies only when a party’s right is infringed. A mere show cause, for instance, infringes the rights of none. In this context, Kunisetty Satyanarayana observes that a High Court should not ordinarily exercise its discretionary jurisdiction under Article 226 to quash a show cause notice. But it also holds that in some very rare and exceptional cases, the High Court can quash a charge sheet or a show cause notice if it has found that to be wholly without jurisdiction or otherwise wholly illegal.

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Regrettably, none of the decisions the Company has relied on comes to its rescue. The Commissioner of Customs does have the statutory power to suspend the license. And it needs no notice to the affected person, much less an opportunity of hearing. But the question is, has that power of suspending license been properly exercised? We will address that in the end.

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The Ext.P18 is the order the Commissioner of Customs

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passed suspending the Company’s licence; the Ext.P21 is the order the Principal Chief Commissioner passed. The Ext.P21 reads:

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“2. The matter has been considered. Instructions have been issued for opening up of the Duty-Free Shops which were closed under the Orders of the Superintendent (Bond), Air Customs, Trivandrum letter C. No.VIII/16/02/2017 dated 20.04.2018, with reference to Order under Section 58(B) of the Customs Act, 1962, by the Commissioner of Customs (PREV), Cochin, issued from file F. VIII/26/20/2017 CCP (Prev.) on 19.04.2018.

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You may contact the local customs formation for further action in this matter.”

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59. The Department has asserted that the Commissioner of

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Customs (Prev.) has acted in his judicial or quasi-judicial capacity. So that order can be interfered with only in appeal—not otherwise. On the other hand, the Company has contended that it is a mere administrative order. Then, the Principal Chief Commissioner is empowered to interfere with that.

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In the first place, the Principal Chief Commissioner has not interdicted the Ext.P18; what he has interfered with is the Ext.P19. It is a well-known proposition of law that a void order compels no compliance;

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its validity can be questioned even collaterally. That said, I must also acknowledge that this proposition has not been fossilized, thus remaining immune from decisional dilution. A Division Bench of this Court in Cochin College v. Ajith Kumar^[26] , has held that “in a country governed by rule of law, if an official of the State is given the liberty to judge for himself the validity or the legality of the orders of his superiors and remain impervious to them until the issue comes before a Court of law, where he can always collaterally challenge the order or directive and justify his disobedience, it is a sure prescription for administrative chaos, if not collapse.” I reckon, at least to the extent of the Duty Free Shops the Ext.P21 binds the authorities.

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(d) The Incompatible Insinuation :

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The Department has levelled grave allegations against the Company and its employees. They were made at the threshold, more as assumptions—however compelling they may have been—than as objective observations based on any concrete material. My examining these allegations may sound paradoxical to the above prefatory statement. But

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the allegations compel a comment or two because abuse of power and

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26^[] 2014 (4) KLJ 1443

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bad faith, too, are in issue. The officials complained to every imaginable investigating agency, besides holding press meets using every conceivable excuse.

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As the Department suspected the Company's conduct, its officials claim to have alerted the Central Investigation Agencies, such as CBI. From the extract it is clear that the Department hurls a specific allegation against the Company: it secured the passport details of nearly 13,000 international passengers for diverting foreign liquor to the black market. I fail to understand how this alleged diversion of liquor into black market breaches the national security. Throughout the counter, the Customs authorities have had a common refrain and a recurring leitmotif. Unfortunately, the Customs Department has employed this expression of 'national security' as a talisman, as if that would ward off any judicial scrutiny of the departmental deeds or misdeeds, as the case may be. It is allegedly a matter of fudging accounts. And that fudging presumes illegal gains as the motive. And that motive translates into diverting foreign liquor clandestinely into open market. I wonder whether that would supply any departmental justification to employ,

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rather indiscriminately hurl, epithets like 'national security', indiscriminately, as if it were an unpierceable armour the Customs Department wears so none could question it. It is not.

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(e) Non-Cooperation of the Company Officials :

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The counter also asserts that some of the Company's superior officials have not turned up till date for giving statements even after repeated reminders. First, it has not provided the details of those superior officials who refused to turn up. Second, those official's failure, if true, to turn up would not be a justifiable factor to suspend the petitioner's license. The suspension of license, I reckon, stands on a different footing. It cannot be an arm-twisting devise to compel somebody's presence or to extract what one desires. For securing any witness, the Department has provisions galore in the Act and the Rules.

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(f) Duty Evasion :

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The Department maintains that the preliminary quantification of the duty evasion made by the petitioner Company through illegal sales amounts to about Rs.6 crore. The investigation also reveals, the Department further asserts, a shortage of foreign currency

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equivalent to Rs.2.2 crores “in the deposits of foreign currency made by the petitioner Company.” According to the Department, it “generates a reasonable doubt” that the Company tried to divert the foreign currency earlier through illegal channels. Thus justifies the Department its order of suspension: “the suspension is to prevent further manipulation and tampering with evidence and to protect Government revenue.” Indeed, the Airport Authority, the real affected party, presents a different picture. Not to be forgotten, the Airport Authority is as much a Governmental agency as the Customs is a Governmental Department.

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I reckon this is the core of the investigation, and the investigation seems to be in the throes of getting completed. So it is inadvisable for the Court to express any opinion—leave alone rule—on that issue.

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To summarize the Company's alleged shortcomings, we may

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list out the Department's allegations:

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(i) By storing the goods imported duty-free in a place other than the special warehouse; the Company has violated the license conditions. (ii) The Company has failed to submit mandatory monthly documents as stipulated in the notifications.

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(iii) The Company has failed to maintain documents in digital form.

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And also failed to submit documents on time, on etude that its computer systems were hacked. But M/s. C-Dac Trivandrum has later falsified that plea.

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(iv) The Company has illegally removed goods from the bonded warehouse without the knowledge of the Bond Officer and other concerned Customs officials.

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(v) The Company has tampered with the Board register.

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(vi) The Company has also tampered with the release application forms.

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(g) Special Warehousing Licence :

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The Department has laid much emphasis on the fact that the petitioner has blatantly violated the special warehouse license conditions. According to it, the Department originally granted a license on 31.08.2017 to the Company for a space measuring 35.89 square metres. But without intimation to the Customs Department, the Company surrendered the warehouse space originally allotted and had allotted another space measuring 154 square metres. The Company, it is alleged, has violated the special warehouse license conditions under Section 58A of the Customs Act, read with Special Warehouse Licensing Regulations 2016 and Special Warehouse (Custody and Handling of Goods) Regulations 2016. According to the Department, the Company’s

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conduct “appears” to attract Sections 72, 112, 114A, 114AA, 117, 132, and 135 of the Customs Act 1962. I may, in this context, observe this allotment was by the Airport Authority. The Department seems bent on making heavy weather of this alleged anomaly.

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The Company presents a different picture. It claims that what it first occupied was a temporary space allotted by the Airport Authority. After getting the letter of allotment dated 13.09.2017 from the same authority for regular warehouse, the Company surrendered the temporary space. It asserts that all this has happened right within the Customs Department’s knowledge and approval, too. To sustain this contention, the Company has placed on record the Space Certificates and Re-warehousing certificates issued by the Customs Department (Exhibit P-31). Airport Authority seems to support the Company’s stand on this issue.

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(h) Data Breach - Falsification :

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The Department has a specific contention against the Company's plea that its systems were hacked and data were breached. According to it, the Company took up that plea only when the Customs

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Department asked the Company to explain its sales reports from 04.09.2017 to 04.12.2017. First, the Department demanded the information from the Company, based on a complaint it received on 12.12.2017. Only then did the Company come with this plea of systemhacking. Even it lodged a complaint about the data breach with the police only on 16.12.2017: Crime No.24 of 2017.

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(i) Raising an Alarm or Crying Wolf ?

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About the information the Department passed on to the

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Central Investigation Agencies, the Department raises a curious plea. It first asserts that it has complained to the authorities concerned about the Company’s illegal and unlawful activities, including those which could cause a national security threat. But it wonders how that confidential letter reached the Company’s hands. Then it concludes that the Company’s securing that confidential letter “clearly shows that the petitioner is stealing information from Central Government Agencies which are established to look into such fraudulent Companies that cause serious national security threat and cause huge loss to the Government exchequer.”

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In paragraph 39 of the counter affidavit, the Department does admit that “only after the initiation of the investigation against them on 21.12.2017 that they have started filing the mandatory documents with the Customs Department.”

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(j) Assault, Harassment, and Counter Assertion :

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Sumit Kumar and Vivek Vasudevan Nair, the sixth and the seventh respondents respectively, faced grave allegations. They are accused of brutally assaulting the Company’s Location Manager. To refute this contention the Department has its defense. And that defense is best described in the Department’s very own notes. For I do not deem it desirable to put any spin of my own on that version:

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“Sri P. Madan, the Location Manager of the licensee, was non cooperative with the investigation, while recording his statement. While seeking clarification with regard to the destruction of invoices, which are to be submitted to the Customs authorities, Sri Madan suddenly became aggressive and hit Sri Vivek V., Superintendent hard on his face and tried to go out of the room and fell on the floor resulting in an injury on the right side of his head. In spite of his injury, Sri Vivek V. offered first aid to Sri Madan so as to enable him to complete his statement. As Sri Vivek V., Superintendent, was taking Sri P. Madan to the Doctor for first aid, some staff of the Duty-Free Shop manhandled him and forcibly took away Sri Madan thereby obstructing the Superintendent from discharging his duty and completing the statement of Sri P. Madan. A written complaint was given to the CISF and to the Airport Director in this regard.”

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These days technology is the Orwellian Big Brother. Facts remain intact; only their interpretation yields to variation. Here, first, the injured Madhan lodged a police complaint. And that complaint soon had its cousin: a complaint by the Department officials. Both crimes have been registered. Besides that, the CISF had captured in its closed-circuit cameras whatever happened on the floor of the international airport. But it could not pry into what had happened in the interrogation room. So these are the issues the police may investigate in the counter crimes: surrounded by the officials and faced with an allegation of violating the law, has Madhan, the Company’s employee, punched the investigating officer in the face? After hitting the investigating officer, has Madhan “tried to go out of the room and fell on the floor resulting in an injury on the right side of his head?” Or have officials brutally assaulted and badly battered Madhan?

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The Airport Authority seems to support the petitioner’s version of the incident. On its part, it too accuses these two officials of harassment. It has, being a governmental agency, even filed a detailed affidavit through its official, setting out the instances of harassment its

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officials have been meted out. To exemplify, it pleads:

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Mr. Vivek V., who is the Superintendent of Customs, the 7^th respondent, being an accused in Crime No. 2248 of 2017 registered by Valiyathura Police Station in connection with the manhandling case was actually removed from the investigation pursuant to my representation Exhibit-R4(l) and accordingly on 09.05.2018 one Mr. Santhosh Kumar was given charge and conducted the enquiry on 09.05.2018 and also subsequently on 18.05.2018, which is evident from Exhibit-R4(i).

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75. In fact, the Airport Authority’s allegations are disturbing,

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casting a shadow on the investigative impartiality and the departmental detachment. Neither seems to be present. It has tellingly placed on record a few more allegations of harassment:

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During the enquiry, I am intimated that Mr. Vivek V., Superintendent of Customs (Preventive) has threatened the officer of being arrested and asked him who is his local advocate and what is the name and mobile number of his wife, his residential address and land marks etc. His attempt was to fish out the evidence by harassing the officer. The enquiry was actually over around 9.10. pm on that day. On the basis of the intimation given by me to the AAI Counsel regarding the harassment being meted out to the said officer, I was intimated that the counsel has made appropriate submission during the course of the arguments in the High Court and I have given to understand that the court has expressed its displeasure over the type of investigation being conducted by the customs officials. I was also intimated that Mr. Vivek V was personally present before the court while the argument was going on. In spite of the submissions made by our counsel before this Hon’ble Court, under the guise of the investigation and enquiry, the officer was detained from morning till 9.10 pm on 04.09.2018. From the report, the details are very clear as to how unfairly the enquiry was conducted and the officer has been harassed for no

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fault of him, that too under an investigation conducted by an officer, 7^th respondent, who is an accused in Crime No. 2248 of 2017 registered by Valiyathura Police Station. These facts are stated in the form of an additional counter affidavit only to bring to the notice of this Hon’ble Court the unfair and illegal manner the investigation is being conducted by the customs officials.

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(italics supplied)

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(k) The Court’s Interim Observations :

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On 31st August 2018, the petitioner’s counsel reminded the

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Court that on remand from the Division Bench, this Bench had already heard the petitioner’s counsel and adjourned the matter only at the respondent’s request. That day too, that is on 31st August, the respondents sought time. But the petitioner’s counsel, then, complained that besides taking adjournments to complete their arguments, the Customs officials had still been persisting with summoning the petitioner’s employees and threatening them. In response, the learned Central Government Counsel assured the Court that “until the matter is heard and decided by this Court, the 6th respondent/10th respondent will not proceed further.”

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Now, we can see the docket order of 18^th September 2018. The learned Standing Counsel for the Airport Authority reminded about the earlier incidents. He told me that once the 6^th respondent

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summoned an Airport Authority’s official for inquiry at Trivandrum. But that day he had come over to Cochin to attend the Court hearing. The official did appear, though. Then, the Department officials asked the summoned official to wait until the 6^th respondent came back. He was let go only late at night.

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In that context, the Court on 18^th September 2018 observed:

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“Informed of that incident, that day, as I recollect, I expressed my displeasure at the Customs Department’s inexplicable attitude; especially of the investigating officer’s. I advised him to adhere to the rule of law. As the investigating officer was here in Kochi, he could have avoided the summoned officer’s waiting fruitlessly at his office. But that was not to be. Despite the Court’s advice, the investigating officer seems to have remained recalcitrant and persisted with his supercilious approach of letting people wait, for he commanded their presence. Hardly a democratic gesture.

¶331

Today too, the learned Central Government Counsel has assured me that the Department will not proceed further. About the specific allegation the airport authority makes—that its official was detained on the last occasion till 9 pm—the learned Central Government Counsel submits that he has no information about that. Already the writ petition seriously alleges—only alleges, though—of physical brutality and abuse of power. Again another avoidable incident of a futile summons and abuse of power, at least prima facie. I rest it at that.

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Then, in the face of severe allegations of assault and abuse, I

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directed the SHO, Valiyanthura PS to place before the Court the case file

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of Crime No.2248 of 2017, in which the 6^th respondent is the accused.

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That material placed, I have watched the CCTV footage, too.

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(l) Bias, Prejudice, Predetermination :

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First, for me it is premature to comment on the CCTV visuals. Let it prejudice neither party. But going by, at least, the Airport Authority’s repeated allegations and affidavit, I must conclude that the allegation of bias, vindictiveness, and abuse of power are not entirely baseless. Premature may be their determination presently. The Company has, in fact, all along complained about premeditated pursuit by these officials. They have complained to every central investigating agency imaginable. True, they justify it. But before they could even go half way through their investigation, they rang the alarm bells, painted a scary picture, even invoked national security. The offence alleged, though, confines to fudging of accounts.

¶340

On the allegations of incessant press briefings, I find not much denial. Nor is there any justification available. I fail to see what drove the officials to hold the press meets, often. There are two factors to be considered: the sixth respondent’s complaint-spree and his press

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propaganda. I reckon he has acted in haste on both counts. True, one needs to be vigilant against crime and the possibility of crime, too. But that exercise must be in good faith. The press may have the right to know, as does a common man. But the officials need not lay bare the information at the door step of the press. One needs to counterbalance the right to disseminate information with the other person’s right to reasonable safeguards from calumny. For drawing conclusions at the preliminary stage of investigation—and spreading that first blush opinion as if it were irrefutable—almost amounts to calumny.

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The Company accuses the Customs officials, especially the 6^th and 7^th respondents, of bias, and confirmation bias at that. “Confirmation bias occurs when a person believes in or searches for evidence to support his or her favored theory while ignoring or excusing dis-confirmatory evidence and is disinclined to change his or her belief once he or she arrives at a conclusion.” Indeed, investigation is a matter of integrity and it must inspire confidence even in the one subjected to that investigation. Here that is lacking. I entirely leave aside the Company’s version. Even going by the Airport Authority’s version, the

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allegations of bias, predetermination, and prejudice are writ large.

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(l1) Mala Fides or Bad Faith :

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Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action, observed the Supreme Court in P.P. Sharma, must be “said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not.” Determining a plea of bad faith involves two questions: (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.

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The Court has further observed that the action taken must, therefore, be proved to have been made in bad faith based on irrelevant considerations. Mere assertion or a vague or bald statement is not enough. Public administration cannot be carried on in a spirit of judicial detachment. There is a wide range of discretionary administrative acts not importing an implied duty to act judicially though the act must be done in good faith to which legal protection will be accorded. But the administrative act de hors judicial flavour does not entail compliance

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with the rule against interest and likelihood of bias.

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When the investigation was subject of the challenge in the court, it would be obvious that the investigator alone is to defend the case; he has to file the counter affidavit and to appear in the proceedings on behalf of the state. No exception should be taken to this course and under no circumstances should it be deduced to be an act in bad faith, holds P.P. Sharma. Malice in law could be inferred from doing of wrongful act intentionally with no just cause, or excuse, or without there being reasonable relation to the purpose of exercising statutory power.

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Bad faith cannot be conflated with colourable exercise of

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power. The former assumes the act intra vires, but to have been performed with malefic mind. On the other hand, the latter asserts, not merely assumes, that the act is ultra vires. The Supreme Court in Gulam Mustafa has observed that striking down any act of mala fide exercise of power is a judicial reserve power exercised legally, but rarely. Charge of bad faith against public bodies and authorities is more easily made than made out.

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In Dhampur Sugar the Supreme Court has held that

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allegations of bad faith are serious and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make ‘fishing’ or roving inquiry. It must be demonstrated by facts. Moreover, the burden of proving bad faith is on the person leveling such allegations and the burden is “very heavy”.

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Divine Retreat Centre deals both with the bad faith and the

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power of courts to change the investigating officer. The Supreme Court, among other things, has examined the scope, content, and the ambit of the inherent power conferred on the High Court under Section 482 of the Code of Criminal Procedure, 1973. It has reiterated the principle that the police have statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate. And the High Court will not use its inherent power to interfere with that power of the police to investigate. The High Court can exercise power under Section 482 of the Code “in relation to a matter pending before a criminal court or where a power is exercised by the Court under the

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Code of Criminal Procedure”. The Court further held that the High Court “cannot issue directions to investigate the case from a particular angle or by a particular agency”.

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Pertinent is the observation in Divine Retreat Centre that

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the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis, more particularly based on complaints or anonymous petitions addressed to a named Judge. Indeed, it goes on to lay down that “it is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person” if it is convinced that the power of investigation has been exercised by an investigating officer in bad faith. About how the element of bad faith has been arrived at, it observes, on facts, that the High Court has merely quoted certain allegations made in the anonymous petition against the appellant and others and proceeded based on those allegations, forming no prima facie opinion regarding those allegations.

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Divine Retreat Centre then serves a caveat that the court

¶371

must be careful to see that a body of persons or a member of the public who approaches the court is acting bona fide and not for personal gain,

¶372

or private motive, or political motivation, or other oblique considerations.

¶373

Muni Suvrat Swami Jain, the Supreme Court, quoting with approval M. I. Builders (P) Ltd. v. Radhey Shyam Sahu,^[27] , has held that judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. “Justice is to be rendered in accordance with the law. Judges are not entitled to exercise the discretion wearing the robes of judicial discretion and pass orders based solely on their personal predictions and peculiar dispositions.”

¶374

While passing interim orders, it is unnecessary to elaborately deal with the merits. Yet it is desirable and proper, according to Mohd. Ghulam Ghouse, for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection.

¶375

Ratnagiri Gas and Power has observed that the law casts a 27^[] (1999) 6 SCC 464

¶376

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heavy burden on the person alleging bad faith to prove it based on the facts either admitted or satisfactorily established—logical inferences deductible from those facts not excluded, though. Mere assertion or a vague or bald statement is not sufficient. An administrative authority, stresses Ratnagiri Gas, must act bona fide and should never act with an improper motive, or ulterior purposes, or against the statute, or by improperly exercising discretion to achieve some ulterior purpose. The action taken must be proved to have been made in bad faith. And the burden of proof lies on the person making the allegations. Indeed, bad faith is the last refuge of a losing litigant, held Ratnagiri Gas. Not always, though.

¶379

Ratnagiri Gas also spells out the procedure. When a person alleges bad faith, he must implead the persons facing that allegation as a party to the proceedings. It is to enable him to answer the charge. Courts have to be slow in drawing conclusions for upholding the allegations of bad faith. Only where the facts lead to inevitable inferences supporting the charge of bad faith should the courts record a finding on that count. But before that, it must also hear the affected person.

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(l2) Bias :

¶383

Bias is a preconceived opinion, or a predisposition, or

¶384

predetermination to decide a case or an issue in a particular manner. It must be to such an extent that it closes the mind to any ‘conviction’. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case, holds the Supreme Court in Shivananda Pathak. Of course, in this case, the Court has dealt with a new species of bias: the judicial obstinacy. Shivananda Pathak says that a court can discover bias by evaluating the facts and circumstances of a case or by applying the tests of “real likelihood of bias” or “reasonable suspicion of bias”.

¶385

Regina v. Secretary of State for Trade needs the facts set out in brief. The first applicant, P, was the controller and managing director of the second applicant Company, K.D.S.B. Ltd., registered as an overseas Company carrying on a business in Great Britain. P had previously been the chairman of a similar Company which had been wound up because of investigations by inspectors duly authorised by the Secretary of State for Trade. Some of the officers involved in that

¶386

W.P.(C) No.21063/2018

¶387

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investigation were similarly authorised, under the relevant statute, to investigate K.D.S.B. Ltd., the present Company. The inspectors served a notice on P, requiring him to produce all accounting records of K.D.S.B. Ltd. They wanted the Company to disclose its financial position. The applicants applied for a judicial review and sought a declaration that the inspection should be carried out fairly.

¶389

In the above factual background, the House of Lords has observed that a Department phrases a notice in too wide terms does not necessarily indicate that the author of the document is biased or capricious. It only indicates that the care which should be exercised has not been exercised in the drawing up of the notice. In that case, the applicants could not prove that the officers were biased, and the applicants had not taken the stand that the notice was drafted carelessly. That the investigators had actively participated in the previous proceedings would not, according to the Court, disqualify them in any way from performing the role they were performing in the present case. There is nothing to be read as a limitation on this power of the officers merely because they have an express power to require explanations in

¶390

W.P.(C) No.21063/2018

¶391

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certain limited circumstances.

¶393

(l3) Shades of Meaning :

¶394

Granted, the learned ASG has laid much emphasis on the principle of mala fides and malice in fact or in law. Given the deleterious consequences that flow from holding an official guilty of mala fides, the Courts have understandably laid stringent stipulations on that count. Making up an allegation of bad faith is easy, but making it out is, almost, next to impossible. For an official enjoys a presumption of acting in good faith. That said, I should also add that bias, prejudice, predetermination, bad faith have shades of meaning.

¶395

Prejudice applies to a conclusion made before evidence is available and typically to an unfavourable preconception marked by suspicion and antipathy. Bias, on the other hand, implies a lack of balance or distortion in one’s judgment owing to a predictable pull in one direction. That pull results out of partiality or prejudice. Predetermination results in a decision before the event actually happens. Mala fides or bad faith is a much stronger expression. It is dishonesty of belief or purpose. Balck’s Law Dictionary (9th Edn.) quotes from

¶396

W.P.(C) No.21063/2018

¶397

¶398

Restatement of Contracts (1981) and says that a complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of bargain, lack of diligence and slacking off, wilful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance. True, that listing out is contract-law specific.

¶399

So every act tainted with bias need not transform into an act of bad faith. Bad faith is malice in fact, but bias can be malice in law. Shorn of motives, an official may doggedly pursue a cause with a notion that crime should have zero tolerance. But often he fails to see the line between what is perceptual and what is factual. That is the problem. For him, an allegation is an affirmation. Thus, at this stage, I am prepared to believe the officials have not suffered from any bad faith. But they are biased, predetermined. In the minds of both the Company and the Airport Authority, the danger of official bias is more than a mere ghost of doubt.

¶400

Under these circumstances, I hold that the investigation

¶401

W.P.(C) No.21063/2018

¶402

¶403

that has so far taken place need not be scuttled. But from now on wards, until the inquiry or investigation concludes, the Chief Commissioner of Customs will entrust the matter to some other official than Mr. Sumit Kumar, the Commissioner of Customs.

¶404

(m) Eo Nomine or By Name - Lack of Denials :

¶405

Both the 6^th and 7^th respondents (that is, officially 10^th and 8^th respondents) have been arrayed by name. They face the allegations of bad faith. One of them is facing criminal prosecution too. They did not not file any counter affidavits—until the arguments were completed. On the day the Company’s counsel had to reply, they both came up with counter affidavits. The Court refused to take them on record. But strangely they are found in the case bundle, but without any docket reference to them. So I have not looked into them.

¶406

In Gayathri Women's Welfare Assn. v. Gowramma^[28] , the Supreme Court has considered at what stage a counter-claim could be filed. It has, in that context, held that a counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the

¶407

28^[] 2011 2 SCC 330

¶408

W.P.(C) No.21063/2018

¶409

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evidence is closed. On facts, the Supreme Court has approved the Trial Court’s rejecting the belatedly filed counter claim. I find no relevance to this judgment here. It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency, observed the Supreme Court in C.S. Rowjee v. State of A.P. [29] , has increased in recent times. In this task, which is thus cast on the courts, it would aid the adjudication if those against whom allegations are made came forward to place before the court either their denials or their version of the matter. So the Court can judge whether those who make allegations of bad faith have discharged their burden of proving it. In the absence of such affidavits or of materials placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer. This is precisely the situation in which we find ourselves in the present case.

¶411

But because of the finding above that it is only a case of bias rather than bad faith, I refrain from drawing an adverse inference against the 6^th and 7^th respondents for their not filing the counter 29^[] AIR 1964 SC 962

¶412

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¶413

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affidavits at an appropriate stage of the proceedings.

¶415

(n) Interim Suspension—is its infliction inevitable ?

¶416

Granted, under Section 2(1) of the Act, the Principal Commissioner could be treated as the "adjudicating authority". Under Section 58A of the Act, he is the licensing authority. And Section 58B of the Act deals with cancellation of licence. Under subsection (2), he can “suspend operation of the warehouse during the pendency of an enquiry under sub-section (1).” Indeed, the statutory position is indisputable.

¶417

But the question is, could the Department have done without suspending the licence? Possessing power does not justify using it—always. Possessing is a matter of statute, but its use is a matter of discretion. And that discretion must be animated by reason and justification. The investigation, it seems, began in December 2017, and license suspension took place in April 2018. Besides a bald assertion, that the Company officials have been uncooperative, I fail to see any other major compelling reason for the authorities to suspend the license. And that allegation of non-cooperation remains unconvincing, for the record presents a different picture.

¶418

W.P.(C) No.21063/2018

¶419

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Besides that, the Airport Authority of India laments the loss of revenue; it asserts that the license suspension, interim though, is entirely avoidable; it could have been done without. It cites numerous complaints from the international passengers about the airport’s inability to provide a basic amenity for them. True, Airport Authority’s contract with the Company does not consider the interim suspension; it may not, in that sense, affect the revenue to be collected from the Company. But here revenue is not the only question. It is much more. It is about the facility to be enjoyed by the commuters.

¶421

I reckon the Customs Department has an efficacious mechanism to impose sufficient checks on the Company to ensure that pending the inquiry, it accounts for every sale transaction. In fact, the Department has not alleged, as I could see, that the Company has been guilty of any malpractice pending investigation. So it is a question of balancing the equities. That apart, the Customs Department has informed the Court during the arguments that almost the entire investigation has been completed. Pitted against an apprehension of the Company’s fudging the account is the public interest: customer

¶422

W.P.(C) No.21063/2018

¶423

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convenience and revenue earning. The public interest must prevail.

¶425

VI. Conclusion :

¶426

I therefore set aside both the Ext.P18 and P19 and direct the Customs Department to allow forthwith the Company to carry on its business operations, of course, under the strict supervision of the departmental officials, as the Chief Commissioner of Customs deems proper.

¶427

Then, in the interest of investigative fairness, the Chief Commissioner of Customs will entrust to some other officer than the 10^th respondent the task of completing the investigation and taking all other consequential measures, but by using the same material so far the Department has gathered.

¶428

I accordingly dispose of the writ petition.

Sd/-

DAMA SESHADRI NAIDU

JUDGE

W.P.(C) No.21063/2018

¶433

¶434

APPENDIX

¶435

PETITIONER'S/S EXHIBITS:

¶436

EXHIBIT P1	A TRUE COPY OF THE LETTER OF INTENT TO AWARD DATED 06.01.2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2	A TRUE COPY OF THE JUDGMENT DATED 12.02.2016 PASSED IN W.P.(C)NO. 861/2016.
EXHIBIT P3	A TRUE COPY OF THE JUDGMENT DATED 22.08.2017 PASSED IN W.A.NO. 354/2016.
EXHIBIT P4	A TRUE COPY OF THE ORDER DATED 31.08.2017 PASSED IN S.L.P.(C) NO. 22346/2017.
EXHIBIT P5	A TRUE COPY OF THE SPECIAL WAREHOUSE LICENSE NO. 01/2017-18 DATED 31.08.2017 ISSUED TO THE PETITIONER.
EXHIBIT P6	A TRUE COPY OF THE CIRCULAR NO. 32/2016 CUSTOMS ISSUED BY THE CBEC DATED 13.07.2016.
EXHIBIT P7	A TRUE COPY OF THE LETTER DATED 19.12.2017 ISSUED BY THE PETITIONER TO THE SUPERINTENDENT (BOND) OFFICE OF THE DEPUTY COMMISSIONER OF CUSTOMS, THIRUVANANTHAPURAM.
EXHIBIT P8	A TRUE COPY OF THE SUMMONS DATED 16.12.2017 ISSUED BY THE 8TH RESPONDENT.
EXHIBIT P9	A TRUE COPY OF THE MAHAZAR DATED 21.12.2017.
EXHIBIT P10	A TRUE COPY OF THE CISF REPORT DATED 29.12.2017.

¶437

W.P.(C) No.21063/2018

¶438

¶439

EXHIBIT P11	A TRUE COPY OF THE SAID COMPLAINT DATED 21.12.2017.
EXHIBIT P11(A)	TRANSLATION OF THE COMPLAINT DATED 21.12.2017.
EXHIBIT P12	A TRUE COPY OF THE INTERIM ORDER DATED 16.01.2018 PASSED IN W.P.(C)NO. 1641/2018.
EXHIBIT P13	A TRUE COPY OF THE REPRESENTATION DATED 28.12.2017 ISSUED BY THE PETITIONER.
EXHIBIT P14	A TRUE COPY OF THE LETTER DATED 16.02.2018 (WITHOUT ENCLOSURES)
EXHIBIT P15	A TRUE COPY OF THE LETTER DATED 01.03.2018 ISSUED BY THE 6TH RESPONDENT.
EXHIBIT P16	A TRUE COPY OF THE LETTER DATED 15.03.2018 (WITHOUT ENCLOSURES) SUBMITTED BY THE PETITIONER.
EXHIBIT P17	A TRUE COPY OF THE REPRESENTATION DATED 09.04.2018.
EXHIBIT P18	A TRUE COPY OF THE 6TH RESPONDENT'S ORDER DATED 19.04.2018.
EXHIBIT P19	A TRUE COPY OF THE 9TH RESPONDENT'S ORDER DATED 20.04.2018.
EXHIBIT P20	A TRUE COPY OF THE REPRESENTATION DATED 23.04.2018 ISSUED BY THE PETITIONER.
EXHIBIT P21	A TRUE COPY OF THE LETTER DATED 27.04.2018 OF THE PRINCIPAL CHIEF COMMISSIONER.
EXHIBIT P22	A TRUE COPY OF THE REPRESENTATION DATED 02.05.2018.
EXHIBIT P23	A TRUE COPY OF THE REPRESENTATION DATED 03.05.2018.
EXHIBIT P24	A TRUE COPY OF THE REPRESENTATION DATED 04.05.2018.

¶440

W.P.(C) No.21063/2018

¶441

¶442

EXHIBIT P25 A TRUE COPY OF THE COMPLAINT DATED 23.04.2018 SUBMITTED BY THE 6TH RESPONDENT.

¶443

EXHIBIT P34 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 13.08.2018

¶444

RESPONDENTS' EXHIBITS

¶445

R1(A) TRUE COPY OF THE CIRCULAR NO.32/2016-CUSTOMS DATED 13.07.2016

¶446

R1(B) TRUE COPY OF THE MAHAZAR DATED 21.12.2017

¶447

R1(C) TRUE COPY OF THE PARAWISE COMMENTS SUBMITTED TO THE CHIEF COMMISSIONER DATED 29.12.2017

¶448

R1(D) TRUE COPY OF THE REMINDER TO THE PETITIONER COMPANY DATED 15.03.2018

¶449

R1(E) TRUE COPY OF THE COMMUNICATION GIVEN BY NOWFAL NAZEER DATED 17.04.2018

¶450

R1(F) TRUE COPY OF THE COMMUNICATION GIVEN BY AARATHY DATED 17.04.2018

¶451

R1(G) TRUE COPY OF THE COMMUNICATION GIVEN BY NITHIN GEORGE PHILIP DATED 18.04.2018

¶452

R1(H) TRUE COPY OF THE COMMUNICATION GIVEN BY MOHAMMED HUSSAIN DATED 18.04.2018

¶453

R1(I) TRUE COPY OF THE COMMUNICATION GIVEN BY SUDHIR SUNDARA RAJ DATED 18.04.2018

¶454

W.P.(C) No.21063/2018

¶455

¶456

R1(J) TRUE COPY OF THE COMMUNICATION GIVEN BY NUJUB ABDUL KAREEM

¶457

R1(K) TRUE COPY OF THE COMMUNICATION GIVEN BY ASWATHY VISHAL

¶458

R1(L) TRUE COPY OF THE COMMUNICATION GIVEN BY HABEESHA FEROSE DATED 04.05.2018

¶459

R1(M) TRUE COPY OF THE COMMUNICATION GIVEN BY LIJU KURIAN MATHEW DATED 05.05.2018

¶460

EXHIBIT R1(N) TRUE COPY OF THE NOTIFICATION NO.69/2016 DATED 14.05.2016

¶461

EXHIBIT R1(O) TRUE COPY OF THE STANDING ORDER NO.03/2017 DATED 23.02.2017 ISSUED BY THE DEPARTMENT TO THE PETITIONER

¶462

EXHIBIT R1(P) TRUE COPY OF THE LETTER FROM PETITIONER DATED 15.09.2017 ADDRESSED TO THE AIRPORT AUTHORITY OF INDIA, TRIVANDRUM AIRPORT

¶463

EXHIBIT P1(Q) TRUE COPY OF THE NOTIFICATION NO.66/2016 DATED 14.05.2016

¶464

R1(P) TRUE COPY OF THE NOTICE DATED 13.08.2018 ISSUED BY THE MINISTRY OF FINANCE

¶465

R2(Q) TRUE COPY OF THE LETTER DATED 16.08.2018 ISSUED BY THE PLUS MAX DUTY FREE PRIVATE LIMITED

¶466

R1(R) TRUE COPY OF THE NOTICE DATED 27.08.2018

¶467

R1(S) TRUE COPY OF THE COMMUNICATION DATED 23.08.2018 ISSUED BY THE EXCISE DIVISION OFFICE

¶468

R4(A) TRUE COPY OF THE COMMUNICATION DATED 22.12.2017 SENT BY THE 4TH RESPONDENT

¶469

W.P.(C) No.21063/2018

¶470

¶471

R4(B) TRUE COPY OF THE COMMUNICATION NO.AAT/COM/3(2)/2017/09 DATED 08.01.2018 SENT BY THE 4TH RESPONDENT

¶472

R4(C) TRUE COPY OF THE COMMUNICATION NO. AAT/COM/3(2)/2017/36 DATED 06.02.2018 SENT BY THE 4TH RESPONDENT

¶473

R4(D) TRUE COPY OF THE COMMUNICATION NO. PMDFPL/APD/TVMPM/CUST/001 DATED 21.04.2018 SENT BY THE PETITIONER TO THE 4TH RESPONDENT

¶474

R4(E) TRUE COPY OF THE COMMUNICATION NO. AAT/COM/2(3)/2018 DATED 21.04.2018

¶475

R4(F) TRUE COPY OF THE COMMUNICATION NO. AAI/SR/M/DFS-TVM DATED 23.04.2018

¶476

R4(G) TRUE COPY OF THE SUMMONS F NO.VIII/26/20/2017/CCP DATED 27.04.2018

¶477

R4(H) TRUE COPY OF THE SUMMONS F NO.VIII/26/20/2017/CCP DATED 03.05.2018

¶478

R4(I) TRUE COPY OF THE SUMMONS F NO.VIII/26/20/2017/CCP DATED 09.05.2018

¶479

R4(J) TRUE COPIES OF TWO COMPLAINTS RECEIVED FROM TWO PASSENGERS

¶480

R4(K) TRUE COPY OF THE SALE FIGURES FROM SEPTEMBER, 2017 TO APRIL 2018 OF THE PETITIONER

¶481

R4(L) TRUE COPY OF THE REPRESENTATION 08.05.2018 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 5TH RESPONDENT

¶482

W.P.(C) No.21063/2018

¶483

¶484

R4(M) TRUE COPY OF THE AUTHORIZATION LETTER NO.AAI/APD/COMML/2018/83 DATED 17.05.2018 ADDRESSED TO THE 5TH RESPONDENT

¶485

R4(N) TRUE COPY OF THE SUMMONS NO.VIII/26/20/2017/CCP DATED 30.08.2018

¶486

R4(O) TRUE COPY OF THE TOUR REPORT SUBMITTED BY MR.K.M. SASIKUMAR, AGM (F&A/COMML) AS TO WHAT HAS HAPPENED ON 04.09.2018

¶487

R4(P) TRUE COPY OF THE SUMMONS NO. O.C. NO./223 DATED 29.06.2018

¶488

R4(Q) TRUE COPY OF THE NEWSPAPER CUTTING OF INDIAN EXPRESS DATED 22.04.2018

¶489

R4(R) TRUE COPY OF THE NEWSPAPER CUTTING OF INDIAN EXPRESS DATED 23.04.2018

¶490

R4(S) TRUE COPY OF THE NEWSPAPER CUTTING OF INDIAN EXPRESS DATED 05.05.2018

¶491

R4(T) TRUE COPY OF THE NEWSPAPER CUTTING OF THE TIMES OF INDIA DATED 23.06.2018

M/S.Plus Max Duty Free (Private) Limited v. the Union of India

Case brief

What is this about?

What did the court decide?

M/S.Plus Max Duty Free (Private) Limited v. the Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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