L.P. Abdul Majeed vs Collector of Central Excise and Customs and Another

In this writ appeal by the petitioner in W.P. No. 7010 of 1992 against the dismissal of the said writ petition, the only question is whether the 2nd

respondent, viz., the Collector of Customs & Central Excise, Tiruchi, has jurisdiction to pass the impugned order dated 30.12.1991. Even in the

writ petition, only the said question was argued and the learned single Judge has held in his order dated 14.7.1995 that the said collector has the

said jurisdiction.

The impugned order, inter alia confiscates to the Government of India, u/s 111(d) of the Customs Act, 1962 and u/s 71(1) of the Gold

(Control) Act, 1968, 650 gold bars seized earlier at Coimbatore from one Nawaz Khan and levies penalty u/s 112(b) of the abovesaid Customs

Act and u/s 74 of the abovesaid Gold (Control) Act, of Rs. 5,00,000/- each, on the abovesaid Nawaz Khan and the appellant Abdul Majeed

herein. No doubt, the said order also levied similar penalties on certain other persons also.

In order to understand the abovesaid jurisdiction question, the following facts may be stated. According to the respondents, pursuant to

smuggling operation, 33 jackets of gold illegally landed at Quilandy (Kerala) and a part of it, viz., 1956 gold biscuits were seized at Irrikkoor,

Cannanore (Kerala) on 25.2.1989 and another quantity of 900 gold biscuits were seized at Vengeri, Calicut on 24.2.1989. In relation to the said

two seizures made in Kerala, the 1st respondent Collector of Central Excise and Customs, Cochin took action under the abovesaid two

enactments against certain persons, including the appellant and apart from confiscating the said seized items, levied penalty of Rs. 20,00,000/- on

the appellant and certain other sums on certain others.

Now, in respect of the abovesaid 650 gold bars seized at Coimbatore, the contention of learned Counsel for the appellant is that the allegation

against him is only that he sold the abovesaid 650 gold bars at Calicut in Kerala to the abovesaid Nawaz Khan and that the said Nawaz Khan only

transported it to Coimbatore, where it was seized. The argument of learned Counsel for the appellant before the learned single Judge as well as

before us is that when the gold seized at Coimbatore was part of the abovesaid gold landed at Quilandy (Kerala) and when the allegation is that

the appellant only sold the same at Calicut, the 2nd respondent, who is the Collector at Trichy, has no jurisdiction to levy penalty thereto by the

abovesaid impugned order on the appellant and that if at all only the Collector at Cochin would have such jurisdiction. He also points out that

already the said Collector at Cochin (1st respondent) had exercised that jurisdiction and, inter alia, levied penalty on the appellant (as stated

above). In this connection, he also relied on Sections 3 and 4 of the Customs Act, 1962 and the relevant notification issued thereunder. According

to him, as per the abovesaid notification, the 2nd respondent at Trichy has no jurisdiction to take the abovesaid action against the appellant, against

whom, the charge is only that he sold the abovesaid 650 gold bars at Calicut in Kerala only.

The learned single Judge, in his order negatived his contention, observing, inter alia as follows:

If the argument of the petitioner is to be accepted, in my opinion it would mean that the 2nd respondent should stop with taking action against the

persons who entered his territorial jurisdiction but refrain from taking action against the person, who dealt with smuggled goods outside his

jurisdiction. In my opinion, there is no such restriction in the Act.

We also have only to uphold the dismissal of the writ petition for the following reasons: Though out of the abovesaid 33 jackets of gold landed

at Quilandy, (Kerala), a portion thereof, viz., the above-referred to 1596 gold biscuits and 900 gold biscuits were seized at two places in Kerala,

as stated above, and inter alia, penalty was levied on the appellant to the extent of Rs. 20,00,000/- in view of his involvement in relation to the said

seizure, another portion of 650 bars of gold, which were sent from Calicut to Coimbatore had been seized at Coimbatore, as stated above and in

relation to the latter portion only the 2nd respondent had taken action against certain persons, including the appellant and abovesaid Nawaz Khan,

who seems to have purchased the same from the appellant at Calicut and transported it to Coimbatore. Paragraph 124 of the impugned order also

specifically states that the abovesaid 650 gold bars, seized at Coimbatore, though may be part of the quantity comprised in the abovesaid 33

jackets of gold landed on the shores of Quilandy, are ""distinct and different"" form the other two seizures made in Kerala, for which persons

involved were penalised by the 1st respondent at Cochin.

Further Section 112(b) of the Customs Act, under which the abovesaid penalty is levied on the appellant, is very wide in its terms. It says as

follows:

Any person, who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping concealing, selling or

purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation u/s 111, shall be

liable�to penalty�.

In view of the abovesaid expression ""any person, who is in any way concerned�"" the appellant can easily be said to come under that expression.

This is more so in the light of the following relevant passage appearing in paragraph 6 of the show cause notice dated 25.8.1989, issued before

passing the impugned order, by the 2nd respondent against the appellant as well as the abovesaid Nawaz Khan and others, which, inter alia,

speaks of the nature of the involvement of the appellant in selling and transporting the said 650 gold bars from Calicut to Coimbatore. The said

paragraph 6 only deals with the abovesaid Nawaz Khan''s statement given before the Superintendent of Central Excise, Headquarters Preventive

Unit, Coimbatore. The relevant portions of the said paragraph 6 runs as follows:

Nawaz Khan�stated that he was owning his house at�Trichur District, Kerala that he was residing at�.Coimbatore�that he came into

contact with one Majid of Calicut (appellant)�that he used to visit Majid''s house near civil station at Kallai (Kerala)�and his house at Beach

where Majid usually stays, that Majid introduced him Atta Bhai�.Sattar�and Asu (Son of Majid), that he knew that these people are engaged

in the smuggling of gold biscuits from foreign countries to India, that he used to purchase from Majid smuggled gold biscuits and had sold it at

Coimbatore and neighbouring places, the he used to get Rs. 200 to 300 as commission per gold biscuit, that on 24.2.1989�he received a call

from Dubai�from Basheer, son of Majid''s maternal aunt, that Basheer told him that he should go to Calicut and help Majid there, that he

phoned to�..Coimbatore and asked his employee�to go to Calicut and contact Majid�that�on the same day he received a call from

Majid that Majid was in trouble and he wanted his help and asked him to go over to Calicut�that Majid informed him that the 7 jackets

(containing 700 gold biscuits) would be given to him after the Friday afternoon�that Majid travelled with him in the Maruti Car�.

The above passage and other contents of the show cause notice certainly would show that the appellant would come within the term ""any person,

who is in any way concerned in carrying�selling�or in any other manner dealing with"" the abovesaid gold bars.

In this connection, we may also point out, as held by the Supreme Court in Ambalal, v. Union of India AIR 1961 SC 264, that the imposition of

penalty under the Customs Act is a guan-criminal proceeding, to which the general principles of criminal jurisprudence applies. Further, the

Supreme Court has also held in K. Satwant Singh Vs. The State of Punjab, in the light of Section 179, Cr. PC, that in the case of

misrepresentation by the accused, in relation to the offence of cheating at Simla and the consequence at Lahore, the offence of cheating by the

accused could have been tried either at Lahore or at Simla and that consequently a person could also have been tried for the abetment of that

offence either at Lahore or at Simla. Likewise, the Supreme Court has also held in Banwari Lal Jhunjhunwala and Others Vs. Union of India

(UOI) and Another, that a Court�trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance

of that conspiracy, irrespective of the fact that any or all the other offence were not committed within its territorial jurisdiction. On the same

analogy, following the abovesaid principles of criminal jurisprudence, in the light of the abovesaid features, it can be certainly concluded that the

2nd respondent has got, jurisdiction to pass the impugned order, levying the abovesaid penalty on the appellant.

The net result is, the writ appeal is not admitted, but dismissed. C.M.A. No. 11389 of 1995, for stay, is consequently dismissed.

Srinivasan, J. and Abdul Hadi, J.

Learned Counsel for the appellant prays for grant of leave to file appeal to the Supreme Court. We have decided the case on the basis of well-

settled principles of law and on the facts and circumstances of this case. In our opinion, there is no substantial question of law and it is not a fit case

to be considered by the Supreme Court. Hence, we reject the prayer for leave.