The court emphasized the need to consider the petitioner's hardship and lack of involvement in the tampering and removal of goods when modifying the provisional release order for the seized vehicle.

JUDGMENT :

Milind N. Jadhav, J.

1. Heard learned counsel for the parties.

2. By the present petition filed under the provisions of Articles 226 and 227 of the Constitution of India, petitioner has prayed for the following reliefs:-

“a. That it is just, equitable and in the interest of justice that this Hon’ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction ordering and directing the Respondents jointly/collectively and their sub-ordinate officers to forthwith:

i. the Respondents to immediately release the Vehicle No.MH-46-1284 so that the petitioner can carry on his business;

ii. provisional Release Letter dated 14.07.2020 be set aside;

iii. the Respondents to waive detention/demurrage charges if any;

b. For interim and ad-interim reliefs in terms of prayer clause (c) above.

c. For costs of this petition. d. For such further and other reliefs be granted to the petitioner as this Hon’ble Court may deep proper and fit in the nature and circumstances of the case.”

3. Petitioner seeks release of vehicle No. MH-46-H-1284 detained by the customs authorities i.e. respondent Nos.2 and 3 since 04.11.2019 and has challenged the provisional release Order dated 14.07.2020 passed by respondent No.3 i.e. the Assistant Commissioner of Customs (Preventive), M & P Wing, Marine Drive, Mumbai in the present petition.

4. Before we advert to the submissions made by learned counsel for the parties, it will be apposite to briefly refer to the relevant facts:-

4.1. Petitioner is engaged in transport business and is proprietor of M/s. Jalaram Container Movers having its office in Mumbai. Petitioner is the owner of a transport vehicle i.e. a trailer bearing Registration No. MH-46-H-1284.

4.2. M/s. Atharv Enterprises having IEC No.BAPPG8916F was involved in illegal import of “counterfeit branded” goods by mis-describing them as “unbranded” goods. One such consignment of the importer arrived under bill of entry No.4862811 dated 11.09.2019 and was lying at M/s ICT & PL Customer Freight Station (CFS), Nhava Sheva. On verification of bill of entry it was found that the address of the importer was incorrect, hence the container bearing No.WHSU5263834 was put on hold on 16.09.2019. On examination of the consignment, it was found that the consignment not only contained the declared items, but also contained other items which were not declared. Therefore, the entire shipment was liable for confiscation. Accordingly there were seized. The seized goods alongwith the container were thereafter handed over to ULA, CFS Uran.

4.3. Request letter dated 25.09.2019 was received from the importer to shift the seized goods to a warehouse under Section 49 of the Customs Act, 1962 (hereinafter referred to as “the Customs Act”).

4.4. Importer booked the petitioner's vehicle on 24.10.2019 through an agent for transportation of the container bearing No. WHSU5263834 containing the seized goods from ULA, CFS Uran to CWC Warehouse, Turbhe and the same was accordingly transported.

4.5. On 29.10.2019, Assistant Commissioner of Customs (Import Bond) informed respondent No.3 that the warehouse manager of CWC, Turbhe had telephonically informed the bond office of CWC warehouse on 26.10.2019 that the customs bottle seal of the container bearing No.WHSU5263834 was tampered with and the escort officer was not contactable.

4.6. Statement of the petitioner was recorded on 03.11.2019 wherein petitioner stated that vehicle No. MH-46-H-1284 was booked through booking agent Mr. Deepak Bhanushali on 24.10.2019; since the vehicle was parked near Nhava Sheva close by, it reached ULA, CFS Uran and was driven by driver Mr. Raj Kumar who transported the container of the seized goods to the warehouse at Turbhe.

4.7. On 04.11.2019, vehicle No.MH-46-H-1284 was seized at CWC Godown, Turbhe by respondent Nos.2 and 3 and panchnama was prepared on the same day; statement of driver Mr. Raj Kumar was recorded wherein he stated that the ve