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2023 Supreme(J&K) 344
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
MA CHOWDHARY, N. KOTISWAR SINGH, JJ.
M/s Ali Shah – Appellant
Versus
Union of India – Respondent
LPA No. 136 of 2023, CM No. 4490 of 2023, LPA No. 137 of 2023, CM No. 4491 of 2023
Decided on : 07-10-2023
Advocate Appeared:
For the Appellant : Mr. Nisar Ahmad, Adv.
For the Respondent: Mr. T.M. Shamsi, DGSI.
The judgment emphasizes the importance of establishing territorial jurisdiction and the principle of 'Forum Conveniens' in determining the appropriate court for a case.
Headnote:
Customs Act - Seizure of Pashmina Embroidered Ladies Shawls - Wildlife (Protection) Act, 1972 - Sections 40, 49, 49-B, 51, 58 - [SUMMARY OF ACT SECTIONS]
Fact of the Case:
The appellant ordered Pashmina Embroidered lady shawls from Switzerland, which were seized at IGI Airport, New Delhi for containing hair of Tibetan Antelope, prohibited under the Wildlife Act of 1972. The appellant challenged the show cause notice and subsequent actions in two writ petitions.
Finding of the Court:
The Writ Court dismissed both petitions, stating that since the goods were seized at Delhi, the appellant should approach the courts in Delhi.
Issues: Territorial jurisdiction, legality of seizure and subsequent actions, forum conveniens
Ratio Decidendi: The court held that the part of cause of action did not accrue within the territorial jurisdiction of the High Court, as the seizure took place in Delhi. The court also emphasized the principle of 'Forum Conveniens' and the need for specific pleadings to establish territorial jurisdiction.
Final Decision: The impugned judgment was maintained and upheld, and both appeals were dismissed.
JUDGMENT :
CHOWDHARY, J
1. By this common judgment, it is proposed to decide the above titled both the intra-Court appeals, arising out of a common judgment dated 16.06.2023 passed by the learned Single Judge (hereinafter referred to as the “Writ Court”) in writ petitions bearing OWP Nos. 251/2015 & 1110/2015 filed by the petitioner-appellant herein, as identical questions of law are involved in both the appeals having been dealt with, by the learned Writ Court.
2. One consignment of Pashmina Embroidered Ladies Shawls vide shipping bill No. 8685517 dated 28.11.2013 were presented for clearance for export to Switzerland on 02.12.2013 to Customs Authorities at IGI Airport, New Delhi and on examination by the Wildlife Crime Control Bureau (Northern Region), New Delhi, it was observed that out of 33 shawls, 20 shawls appeared to be mixture of Shahtoosh and the fact as to whether the goods contained objectionable yarn or not, the shawls were sent for forensic test. The Regional Deputy Director, Wildlife Crime Control Bureau vide its letter No. 10-10/WN/14/325 dated 29.05.2014 certified that all suspected twenty pieces of shawls contained hair of Tibetan Antelope (Pantholopes Hodgsoni), which was prohibited, as there was reason that they were liable for confiscation under the Act, as such, those shawls were seized in terms of Section 110 of the Customs Act, 1962 (hereinafter referred to as the “Customs Act”) at New Delhi.
3. A show cause notice bearing No. SES/35/ADC/JC/2014-15 dated 19.01.2015 was issued by the Commissioner of Customs (SIIB), Air Cargo Export, New Delhi (Special Intelligence & Investigation Branch) to the petitioner-appellant, who had dispatched this seized consignment from Srinagar to be delivered in Switzerland. The aforesaid notice was challenged in OWP No. 251/2015 by the appellant-petitioner before this Court.
4. The respondent-Regional Deputy Director, Wildlife Crime Control Bureau (NR), New Delhi issued Communication No. 1-270/WCCB/NR/14/153 dated 13.04.2015 to respondent-Superintendent of Police, Central Bureau of Investigation (CBI), New Delhi, who registered a case vide FIR No. RC220/2015/E-0007-CBI/EO-II/New Delhi under Sections 40, 49, 49-B and 58 read with Section 51 of the Wildlife (Protection) Act, 1972 (hereinafter referred to as the “Wildlife Act of 1972”), based on which a notice was issued to the appellant-petitioner by the respondent-R. Ganesan, Inspector of Police, CBI/EO-II/EOU-V, New Delhi alongwith the proceedings initiated. These notices and the FIR were also challenged by the appellant-petitioner through OWP No. 1110/2015 before this Court.
5. Both these writ petitions were heard by the Writ Court and vide impugned judgment, it was held by the learned Single Bench that since the consignment/goods had been seized at Delhi, proceedings emanating as a consequence of seizure of prohibited/banned consignment/goods have been initiated at Delhi, so it would be appropriate for petitioner to approach the Courts/forums at Delhi and both these writ petitions were dismissed by the common impugned judgment.
6. The case set up in both these appeals is, that the appellant-writ petitioner-M/S Ali Shah, in the month of July 2013, got an order for supply of Pashmina Embroidered lady shawls from Switzerland and it asked its suppliers to provide the required number of Pashmina Embroidered lady shawls @ Rs. 17,300/- per shawl and, accordingly, the suppliers supplied those shawls to the appellant-writ petitioner from 3rd November to 5th November, 2013 against proper receipts; that after receiving these shawls from its suppliers, the appellant/firm booked the same on 27.11.2013 at a cost of Rs. 12,870/- Swiss Francs, through DHL Express & Courier Service, under Airway Bill No. 1545575738 from Srinagar; that the consignment was to be delivered in Switzerland within a period of one week, however, due to non-delivery of the consignment, the appellant/firm took up the matter with DHL Express (I) Mumbai, who informed the ap
