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2024 Supreme(Bom) 337

G. S. KULKARNI, FIRDOSH P. POONIWALLA
Chokshi Arvind Jewellers, Through its Partner, Mr. Kapil A Parekh – Appellant
Versus
Union of India – Respondent


Advocates:
Advocate Appeared:
For the Appellant : Dr.Sujay Kantawalla, Mr.Anupam Dighe, Ms.Changni Tanna,
Mr.Prathamesh Chavan, Mr.Ankit Trivedi i/b M/s.India Law Alliance
For the Respondent: Mr.Jitendra Mishra a/w Ms.Sangeeta Yadav, Mr.Umesh Gupta

Judgement Key Points

Certainly. Here are the key legal principles and findings from the provided document:

  1. The power to provisionally attach bank accounts under Section 110(5) of the Customs Act is a draconian and coercive power that requires strict adherence to statutory procedures (!) (!) .

  2. An order for provisional attachment must be in writing and must reflect the reasons for the attachment, based on tangible material, and must be served on the bank account holder before the attachment (!) (!) .

  3. The formation of an opinion by the proper officer that the attachment is necessary to protect the revenue or prevent smuggling must be based on objective, tangible material and must be recorded in writing, with clear reasons given (!) (!) (!) .

  4. The statutory requirement for approval from the Principal Commissioner or Commissioner is mandatory, and such approval must be documented in writing; mere issuance of a letter to the bank without a proper written order does not suffice (!) (!) .

  5. The exercise of provisional attachment powers must be strictly compliant with the statutory preconditions; failure to do so renders the attachment illegal (!) (!) .

  6. The provisional attachment should be during the pendency of proceedings and must be proportionate and justified, with a clear nexus to the purpose of protecting revenue or preventing smuggling (!) (!) .

  7. The proper officer's formation of opinion must be based on tangible material, and the reasons for attachment should be explicitly recorded and communicated to the account holder (!) (!) (!) .

  8. The territorial jurisdiction of the court is established where the bank accounts are located, even if the instructions for attachment originate from a different region, provided the accounts are within the court's jurisdiction (!) .

  9. The courts have emphasized that procedural violations, such as failure to issue a written order or serve the order on the account holder, invalidate the provisional attachment (!) .

  10. The court has the authority to declare such provisional attachments illegal and to order the banks to unfreeze the accounts if statutory procedures are not followed (!) (!) (!) .

  11. While the authorities may exercise the power again in accordance with law, any provisional attachment must strictly comply with the statutory requirements to be valid (!) .

  12. The court's jurisdiction under Article 226 is affirmed where the cause of action arises within the territorial limits of the court, regardless of the origin of the instructions for attachment (!) .

  13. The court has ruled in favor of the petitioners, declaring the provisional attachments illegal due to non-compliance with procedural and substantive statutory requirements, and has directed the banks to allow the petitioners to operate their accounts freely (!) (!) (!) .

  14. Costs are not awarded in view of the circumstances (!) .

These points encapsulate the court's interpretation of the statutory provisions, emphasizing the importance of procedural compliance and the safeguards necessary to prevent arbitrary use of coercive powers.


JUDGMENT :

FIRDOSH P. POONIWALLA, J.

1. Rule in all Writ Petitions. Rule made returnable forthwith.

2. Heard finally by consent of the parties.

3. By this common judgment, we are disposing of three Petitions filed under Article 226 of the Constitution of India.

Facts in Writ Petition (L) No.2633 of 2024

4. The Petitioner is a partnership firm. The Petitioner is engaged in the business of Gold Bullion trading since the last 80 years and is a holder of all requisite licenses. The Petitioner holds Gold License bearing No.141/G/89.

5. Based on certain intelligence, a search operation came to be conducted on 29th April 2022 by the officers of Respondent Nos.2 and 3 at the office premises of the Petitioner. Consequent thereto, a Panchnama dated 29th April 2022 was prepared. It is the case of the Petitioner that no incriminating evidence was found at the aforesaid premises, as also the stock available at the premises was tallying with the books of accounts.

6. At the time of the search, the Petitioner was informed that the said operation was being conducted due to intelligence received by Respondent No.3 that a party namely M/s.SL.Creation was alleged to have been involved in the activity of smug

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