Point of Law: Any passenger of Indian Origin or a passenger holding a valid passport, issued under Passport Act, 1967, coming to India after a period of not less than six months of stay abroad.

Judgment :-

(Prayer: Writ Petitions are filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, to direct the respondents herein to allow re-export of the goods viz., gold ornaments weighing 200 grams and electronic goods as requested by the petitioners vide letter dated 03.02.2020 to the first respondent and to hand over the passport, impounded/detained by the second respondent to the petitioners.)

Common Order

1. While reading the great Indian epics, namely, the Ramayana and the Mahabharatha, we feel that some of the principal characters have been less than fair while dealing with their antagonists. Was Lord Rama justified in shooting the fatal arrow at Vali by hiding behind a tree ?. Karna is another unforgettable character. The wheel of his chariot was stuck in the mud and when he was attempting to retrieve it, Arjuna's arrows struck him. What about Abhimanyu?. Though the Sastras spoke of rules of war (Yudha Dharma), the approach was often that all is fair in love and war. Attainment of victory was more important than observing the niceties of the game.

2. But, a constitutionally governed democratic State which is committed to upholding the rule of law shall not adopt unfair methods when prosecuting citizens and non-citizens alike. And if the executive wing does, judiciary shall not wink. I must, with a sense of moral unease, acknowledge that there exists an exception to this lofty principle. An illegally procured evidence may still be admissible provided it is relevant. Just as an accused in a criminal case is entitled to fair trial, a noticee is entitled to fair adjudication and enquiry. This is implicit in Article 14 as well as Article 21 of the Constitution of India. It can be taken as axiomatic and an uncontestable proposition. What are the contours of this right ?. While it is not necessary to exhaustively delineate its scope, there can be no doubt that the noticee is entitled to copies of documents in official custody if they have a bearing on the defence. Denial of access to such documents may result in prejudice to the noticee in properly defending his or her case.

3. The question that arises for consideration in these writ petitions is whether this right to fair adjudication has been infringed. To answer the said question, it is necessary to take note of the competing versions presented by the petitioners as well as the department.

4. According to the petitioners who are Indian citizens, they returned to India after a brief overseas trip. They landed at Trichy International Airport at around 12.10 a.m on 06.11.2019. Each of them was carrying 200 gms of gold valued at Rs.7,64,200/- and electronic goods worth more than Rs.20.00 lacs. They intended to declare what was in their baggage before the customs authority and clear them after paying the applicable duty. But, before they could do so, they were intercepted and the goods in question were seized. They were subjected to indignities. They were made to squat and fingers were inserted into their anus. They were arrested and granted conditional bail on 07.11.2019. After coming out, the petitioners retracted the statements obtained from them. The petitioners replied to the show cause notices dated 29.06.2020. They sought permission to re-export the seized goods. Since no response was forthcoming, the present writ petitions were filed.

5. The allegations made by the writ petitioners have been strongly controverted by the Directorate of Revenue Intelligence. They received specific intelligence that passengers arriving at Trichy from Kuala Lumpur, Dubai, Sharjah and Singapore through four particular flights at around the midnight on 05.11.2019 would be bringing huge quantities of 24ct gold in the form of crude chain and paste and attempt to smuggle the same without payment of applicable customs duty. The information turned out to be well founded. Among t