Dismissed

Muhammed Shafeeque Kunnoor, v. Joint Commissioner of Customs

Kerala HC11 Oct 2019Crl.MC/4855/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition filed under Section 482 Cr.P.C seeking release of seized gold chains. The court held that disputed questions of fact regarding customs duty evasion must be adjudicated by the appropriate civil appellate authority under the Customs Act, not by a criminal court.

What did the court decide?

Petition dismissed; liberty to challenge the confiscation order before the appropriate appellate authority under the Customs Act.

Muhammed Shafeeque Kunnoor, Vs Joint Commissioner of Customs — Customs and Excise | Kerala HC (2019)

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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 R. NARAYANA PISHARADI

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FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941

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Crl.MC.No.4855 OF 2019(F)

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CRL.M.P.NO.2335/19 IN OS 169/2019 DATED 11-06-2019 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM

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PETITIONER/ACCUSED:

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MUHAMMED SHAFEEQUE KUNNOOR, AGED 25 YEARS S/O. ESMAIL KUNNOOR MOIDEEN ESMAIL, KUNNOOR HOUSE, BEACH ROAD, MK WARD P.O., KANNUR CITY, KANNUR-670003.

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BY ADVS. SRI.SHIRAZ ABDULLA SRI.K.ABDUL NASSAR

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RESPONDENT/DE FACTO COMPLAINANT:

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JOINT COMMISSIONER OF CUSTOMS, AIR CUSTOMS, COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY, COCHIN-683111.

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R1 BY SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR CUSTOMS,COCHIN COMMISSIONERATE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.09.2019, THE COURT ON 11.10.2019 PASSED THE FOLLOWING:

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Crl.M.C.No.4855/2019

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R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.4855 of 2019

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Dated this the 11^th day of October, 2019

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O R D E R

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This is an application filed under Section 482 Cr.P.C.

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On 19.04.2019, the petitioner herein, who was employed in Malaysia, reached Cochin Airport by Flight No.AK

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He was intercepted by the customs authorities. On conducting search of his person, the customs officers found that he had concealed three gold chains inside the underwear worn by him. Alleging that he possessed dutiable goods and that he had not declared the goods, the gold chains were seized by the customs authorities. Since the petitioner waived show cause notice, he was heard in person by the Assistant Commissioner, Air Customs. After hearing, it was found by

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him that the petitioner had intentionally concealed the gold chains inside the underwear worn by him to evade customs duty and he ordered confiscation of the gold chains. An amount of Rs.20,000/- was also imposed as penalty on the petitioner.

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Crl.M.C.No.4855/2019

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The petitioner paid the amount of penalty. Thereafter, he filed an application under Section 451 Cr.P.C before the Magistrate's Court concerned for releasing the gold chains to him. As per Annexure-F order, learned Magistrate dismissed the application.

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The petitioner has now approached this Court by filing this application under Section 482 Cr.P.C. The relief prayed for in this application reads as follows:

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"For these and other grounds that may

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be urged at the time of hearing, it is most humbly prayed that this Honourable Court may be pleased to direct the respondent to release the gold chains seized from the petitioner, detained and deposited in the warehouse vide Ref.No.339/19 dtd 19-0419 and allow this criminal miscellaneous case, so as to secure the ends of justice."

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Heard learned counsel for the petitioner and the

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learned Special Public Prosecutor for the Customs and Central Excise.

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Though Annexure-F order passed by the learned Magistrate is challenged in this application, learned counsel for

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the petitioner submitted that he is not challenging that order. He has submitted that the petitioner challenges the legality

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Crl.M.C.No.4855/2019

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and propriety of Annexure-D(2) order dated 19.04.2019 passed by the Assistant Commissioner, Air Customs.

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It is specifically stated in paragraph 4 of the application that the petitioner had declared the gold chains in his possession and that the same was well within the permissible quantity. It is also stated that he was wearing one chain on his neck and that he had kept the other two chains inside the pocket of his trouser. However, Annexure-D(1) seizure report shows that the petitioner had concealed the gold chains inside the underwear worn by him and that he had not declared the goods. Annexure-D(1) seizure report bears the signature of the passenger (the petitioner).

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Annexure-D(2) order states that, during the personal hearing conducted by the Assistant Commissioner, the petitioner had admitted that he had concealed the gold chains inside the underwear worn by him.

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Section 111 of the Customs Act, 1962 (hereinafter

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referred to as 'the Act') deals with various situations under which improperly imported goods are liable to be confiscated. Section 112 of the Act provides for imposition of penalty for improper importation of goods. Section 126 (1) of the Act states that when goods are confiscated under the Act, such

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Crl.M.C.No.4855/2019

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goods shall thereupon vest in the Central Government. When an order of confiscation is passed and when the goods are confiscated, then the goods shall vest in the Central Government and if they are to be restored to the owner, adjudicating authority can do so only under the provisions of Section 125 of the Act which prescribes imposition of fine in lieu of confiscation.

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In this application filed under Section 482 Cr.P.C, this Court cannot adjudicate disputed questions of facts as to whether the petitioner had concealed the gold chains in the underwear worn by him or that he had kept them inside the pocket of his trouser and whether he had declared the goods or not. There is appropriate forum provided under the Act to adjudicate such disputed questions of facts. Section 128(1) of the Act states that any person aggrieved by any decision or order passed under the Act by an officer of customs lower in rank than a Principal Commissioner or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order. The petitioner is at liberty to challenge Annexure-D(2) order before the appellate authority.

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Crl.M.C.No.4855/2019

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In the light of the submission made by the learned counsel for the petitioner that he does not challenge the legality and propriety of Annexure-F order passed by the learned Magistrate, it is also doubtful whether this application filed under Section 482 Cr.P.C is maintainable against Annexure-D(2) order passed by the Assistant Commissioner, Air Customs.

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Consequently, the petition is dismissed. The petitioner is at liberty to challenge Annexure-D(2) order before the appropriate authority under the Act. He is at liberty to raise all his contentions before such authority. It is also made clear that, if the petitioner files any appeal before the authority concerned under the Act, such appeal shall be decided untrammelled by any of the observations contained in this order.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

jsr

Crl.M.C.No.4855/2019

APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A COPY OF THE PASSPORT. ANNEXURE B COPY OF THE PURCHASE BILL. ANNEXURE B(1) COPY OF THE PURCHASE BILL. ANNEXURE C COPY OF THE WEDDING INVITATION. ANNEXURE D COPY OF THE SEIZURE REPORT. ANNEXURE D(1) COPY OF THE SEIZURE RECEIPT. ANNEXURE E COPY OF THE RECEIPT FOR PAYMENT OF PENALTY. ANNEXURE F COPY OF THE ORDER OF ADDITIONAL CHIEF JUDICIAL MAGISTRTE (EO), ERNAKULAM.

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RESPONDENT'S EXHIBITS: NIL

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TRUE COPY

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PS TO JUDGE

Muhammed Shafeeque Kunnoor, v. Joint Commissioner of Customs

Case brief

What is this about?

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Muhammed Shafeeque Kunnoor, v. Joint Commissioner of Customs

Case brief

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What did the court decide?

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