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Absence of Does Not Mandate Release of :
The has delivered two significant rulings this week, clarifying that the mere absence of a separate under does not automatically entitle a person to of . In separate decisions dated 2 and , a of Justices Anil Khetarpal and Shail Jain held that where the Department claims an was issued within the , or where the petitioner’s own statement waives the need for notice, the matter requires factual examination and cannot be short-circuited through .
The rulings underscore that under the Customs Act must be assessed holistically, and that property rights under cannot be used to bypass ongoing proceedings. Both decisions carry important implications for practitioners dealing with customs seizures and the delicate balance between procedural safeguards and .
The Legal Framework
prescribes that after seizure of goods, the proper officer must issue a under Section 124 within six months (or such extended period as the Commissioner may allow) failing which the goods are liable to be returned. Section 124 itself requires that before any order of confiscation or penalty is passed, the person concerned must be given notice of the grounds on which it is proposed to confiscate the goods or impose a penalty, and must be given an opportunity of making a representation in writing or orally. Notably, the proviso to Section 124 permits the notice and the representation to be oral at the request of the person concerned.
The tension between a literal reading of “notice” and the practical realities of customs enforcement has long been a source of litigation. These two cases squarely raised the question: does the absence of a formal written notice automatically invalidate the seizure and compel release?
Case 1: Gold Bars Seizure – Najir
The first petition was filed by Najir, who was returning from Saudi Arabia when customs officers at Delhi airport seized three gold bars from him, each bearing the marking “1 Ounce Fine Gold 999.9.” The petitioner argued that no under Section 124 was ever issued within the six-month period under Section 110(2), and therefore the seizure had lost its , entitling him to of the gold.
The Department countered by relying on a statement recorded from the petitioner under , wherein he purportedly stated that he did not require a or personal hearing. Customs also pointed to a “” that recorded as the date when an was given. The Department further contended that the petitioner had failed to appear for appraisement, and that disputed questions regarding recovery and concealment could not be resolved in .
The High Court observed that while it was undisputed that no separate written notice had been issued, Section 124 permits oral notice at the request of the person concerned. The Bench held:
“The statutory requirements have to be satisfied in accordance with law. However, whether an was in fact given to the Petitioner, what was communicated to him in the course thereof, and whether the proceedings undertaken on 20.01.2024 constituted sufficient compliance with Section 124, are matters which require examination of the and the circumstances in which the statement came to be recorded.”
The Court declined to decide these factual issues in writ proceedings and relegated the petitioner to the . It also clarified that the recital in the petitioner’s statement that he did not require a could not by itself be treated as conclusive proof of compliance.
Case 2: Gold Chain Seizure – Nahid Zakiya
The second petition was filed by Nahid Zakiya through her SPA holder, seeking return of a 58-gram gold chain detained by customs at Delhi airport. The petitioner claimed that the chain was old and used personal jewellery, thus qualifying as a entitled to duty-free clearance. She also argued that no had been issued within the period under Section 110(2), and that continued retention violated her property rights under .
The Court rejected the reliance on Article 300A, observing:
“Without the relevant factual issues being examined in accordance with law, this Court cannot grant a conclusive declaration in favour of the Petitioner that the article was necessarily entitled to unconditional duty-free clearance as a .”
It noted that property rights are undoubtedly protected, but where competent statutory authorities have initiated action under the Customs law, the Court cannot direct by bypassing the . The claim that the chain was an old personal effect raised factual questions requiring examination. Accordingly, the petition was dismissed.
Oral Notice and
Both judgments emphasize that the inquiry under Section 124 is not a binary test of whether a written notice exists. The proviso to Section 124 expressly allows oral notice, provided it is at the request of the person concerned. However, the Court cautioned that a mere recital in a statement that the person does not require a notice or hearing cannot be taken as conclusive proof of compliance. The actual circumstances – what was communicated, whether the person understood the grounds, and whether a meaningful opportunity was afforded – must be examined on the facts.
This nuanced approach signals that courts will not mechanically order release of just because the Department failed to produce a formal written notice. Instead, the Department may rely on contemporaneous records, oral communications, and statements to demonstrate that the statutory requirements were met in substance.
Article 300A Cannot Override Customs Proceedings
The second ruling also clarifies the limits of Article 300A in the customs context. While the right against deprivation of property except by authority of law is a fundamental right, it does not entitle a person to short-circuit a statutory proceeding that is already underway. As the Court noted, without a clear and undisputed factual foundation, the High Court cannot grant conclusive declarations in .
This principle reinforces that Article 300A is a , not a shortcut to bypass the administrative and established under the Customs Act. Litigants must exhaust statutory remedies before seeking constitutional relief, unless exceptional circumstances warrant interference.
Key Takeaways for Legal Practitioners
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Written notice is not mandatory: The absence of a formal under Section 124 does not automatically render a seizure invalid. Oral notice, if properly given and recorded, can satisfy the statutory requirement.
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Contemporaneous records are critical: Customs officers should maintain detailed proceedings charts and records of oral communications to demonstrate compliance. A bare assertion of oral notice may not suffice; the Court will examine the .
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Waiver by statement may not be conclusive: A statement under Section 108 wherein the person says they do not require a notice or hearing will be scrutinized. The and circumstances of the statement are relevant.
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Article 300A is not a bypass: Constitutional property rights do not entitle a person to of while statutory proceedings are pending. The proper remedy is to participate in the adjudication process.
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Factual disputes belong in statutory forums: The High Court will not decide regarding concealment, bona fide personal effects, or the of statements in . Petitioners must pursue statutory appeals.
Conclusion
The ’s twin rulings strike a careful balance between protecting and enabling customs enforcement. By refusing to treat the absence of a as an automatic ground for release, the Court has affirmed that the Customs Act’s provisions must be read as a whole, and that substance must prevail over form. At the same time, the caution regarding the conclusiveness of waivers in statements ensures that the Department cannot simply rely on boilerplate recitals.
For customs litigation, these judgments provide much-needed clarity: the focus should be on whether the person was actually informed of the grounds and given a , not merely on the form of the notice. As the legal community digests these rulings, one thing is clear – will not derail legitimate customs proceedings, but neither will they be overlooked entirely.
