Keshav Kumar vs Union of India

Vakalatnama has been filed by Sri D.K.S. Rathor, Advocate and Sri Ankit Roopanwal, Advocate on behalf of the petitioner-firm after obtaining no objection from Mr. Devesh Vikram, Advocate, which is taken on record.

Heard learned counsel for the petitioner as well as Sri Praveen Kumar, learned counsel holding brief of Sri Krishna Agarwal, learned counsel for the respondents-Customs Department and perused the record.

The instant writ petition of criminal nature under Article 226 of the Constitution of India has been preferred with the prayer to issue writ in the nature of certiorari for quashing the impugned arrest notice dated 6-12-2016 in C. No. VIII(30) Noida Cus./ICD-Dadri/SIIB/Vidhata/43/16/839 under Sections 132, 135(a) of the Customs Act, 1962 issued by the office of Commissioner of Customs, Noida (Annexure-18 to the writ petition).

The case of the petitioner-Firm is that the petitioner is sole proprietor of M/s. Vidhata Overseas having its office at B-106, First Floor, Vikas Tower, PVR Complex, Vikas Puri, New Delhi and is engaged in import and trading of the electronic items. It is submitted that in the ordinary course of business, the petitioner-Firm had placed the order on its foreign supplier M/s. Golden Life HK having its office at Room 29, 4th Floor, Meeco Industrial Building, 53-55 Au Pui Wan Street, Fo Tan, N.T. Hong Kong for import of mobile accessories (charger, earphone, battery, etc.) by invoice dated 10-5-2016. The goods were sent against bill of lading dated 14-5-2016 to the petitioner-Firm and the consignee-Arshiya Northern FTWZ, Khurja was mentioned in the bill of lading from Hong Kong to ICD, Dadri. The goods were sent by the foreign supplier on credit limit of 45 days. The petitioner-Firm, who was the notified party, had placed the order for the purpose of re-export and therefore, the consignee was mentioned as Arshiya Northern FTWZ, Free Trade Warehousing Zone so that the goods could be imported and they would be allowed to re-export without any restrictions. The goods arrived on 2-6-2016 and due to delay from the side of foreign purchaser, initially they could not do any activity regarding transit of goods from Dadri port to Arshiya Free Trade Zone but later on they filed transit bill of entry dated 26-7-2016 for the transit of the goods from Dadri to Arshiya, however due to non-response from the third countries foreign purchaser they dropped the idea to take the delivery of goods. Finally email dated 11-8-2016 was sent by the petitioner and petitioner asked the foreign supplier to recall the goods and as such the petitioner was not concerned with the goods, however the petitioner was asked to receive notice/letter from the Customs Department.

Thereafter, the petitioner preferred a petition before the Delhi High Court for quashing the investigation against the petitioner with reference to bill of lading dated 14-5-2016 initiated by the respondent-Customs Department. The petition was disposed of with the observation that the petitioner shall appear for interrogation on any subsequent dates fixed for that purpose in normal working hours and in case the respondent proceeds to arrest the petitioner, three days prior notice shall be given to the petitioner for that purpose.

The petitioner appeared before the respondent-Customs Department for interrogation and cooperated on the date fixed and adduced certain papers as demanded by the respondent-Customs Department. Subsequently notice dated 6-12-2016 was issued under Section 108 of the Customs Act, 1962 (Annexure-17 to the writ petition) summoning the petitioner to appear on 7-12-2016 at 11:30 hrs. in the office of the Superintendent (SIIB), ICD Dadri, District Gautam Budhha Nagar (U.P.) and asking the petitioner to produce the documents and records mentioned in the Schedule at Serial Nos. 1 to 5. However, simultaneously the notice of arrest dated 6-12-2016 impugned herein (Annexure-18 to the writ petition) was issued to the petitioner in view of the provisions of Section 135(i)(A) read with Section 104 of the Customs Act, 1962, which as submitted by learned counsel for the petitioner, is arbitrary, illegal and the same is liable to be quashed.

Learned counsel appearing for the respondent-Customs Department has vehemently opposed the prayer and submitted that the notice has already been given for appearance and producing the necessary documents but since there was no cooperation from the side of the petitioner and the petitioner failed to produce the necessary document as demanded by the respondent-Customs Department, hence in view of the provisions of Section 135(i)(A) read with Section 104 of the Customs Act, 1962, notice was rightly issued to the petitioner during the investigation of the case for arrest as he was avoiding to give replies and burden was shifted upon some unknown person and as such, no interference is required by this Court.

We have considered the rival submissions and perused the record.

Admittedly when earlier notice was issued to the petitioner and investigation was challenged before the Delhi High Court, the petition was disposed of with the observation and direction that the petitioner will cooperate in the investigation and appear on the date fixed by the authority concerned of the respondent-Customs Department and he will appear for interrogation on any subsequent dates. Liberty was also given to proceed to arrest the petitioner giving three days prior notice, but in the present case summon was issued on 6-12-2016 under Section 108 of the Customs Act, 1962 to the petitioner to appear on the next date i.e. 7th December, 2016 at 11:30 hours and also to produce the documents and records mentioned in the Schedule at Serial Nos. 1 to 5.

It is very surprising that on the same day i.e. 6-12-2016 the notice of arrest was also issued to the petitioner by the office of Superintendent (SIIB), Customs Commissionerate, Noida. As such, notice of arrest suffers from non-application of mind, and appears to be arbitrary and unreasonable and is, therefore, liable to be quashed.

Accordingly, the impugned arrest notice dated 6-12-2016 issued by the office of Commissioner of Customs, Noida (Annexure-18 to the writ petition) is hereby quashed.

Learned counsel for the petitioner on instructions received states that the petitioner undertakes to appear on 5-1-2017 before the authority concerned of the respondent-Customs Department in compliance of the summons/notice dated 6-12-2016 issued by the Superintendent (SIIB), Customs Commissionerate, Noida (Annexure-17 to the writ petition).

Thereafter, the respondent-Customs Department shall have liberty to proceed in accordance with law.

The writ petition stands allowed with the aforesaid observations/directions. No order as to costs.