* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 07 July 2023 Judgment pronounced on: 21 August 2023 + W.P.(C) 8902/2021 NIDHI KAPOOR ..... Petitioner Through: Mr. Nitin Ahlawat, Mr. Visesh Chaudhary, Mr. Sahil Dagar and Ms. Sonali Sardana, Advs.

versus PRINCIPAL COMMISSIONER AND ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA & ORS.

..... Respondents Through: Mr. Tarun Gulati, Sr. Adv.

Amicus Curie, Mr. Kishore Kunal, Mr. Kumar Sambhav, Advs.

Mr. Satish Kumar, Sr. Standing Counsel and Ms. Sonu Bhatnagar, Sr. Standing Counsel on behalf of respondent no. 2 & 3 along with Mr. Dhruv, Mr. Mandal, Advs.

AND + W.P.(C) 9561/2021 SUPRIYA ..... Petitioner Through: Appearance not given versus ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA AND ORS ..... Respondents Through: Mr. Satish Kumar, Sr. Standing Counsel for respondent no. 2 & 3 with Mr. Dhruv, Mr. Atul Mandal, Advs.

Mr. Sanjay Kumar, Ms. Easha Kadiyan, Ms. Hemlata Rawat, Advs. for R-4 Mr. Dev Bhardwaj and Ms. Anubha Bhardwaj, Advs with Mr. Sachin Singh, Ms. Divyanshi Srivastava, Advs., for Union of India AND + W.P.(C) 13131/2022, CM APPL. 11400/2023(Add. Document)

SUDHA MURTHY ..... Petitioner Through: Appearance not given versus JT COMMISSIONER OF CUSTOMS, IGI AIRPORT T-3 DELHI ..... Respondent Through: Mr. Akshay Amritanshu, Sr.

Standing Counsel, Mr.

Ashutosh Jain, Mr. Samyak Jain, Advs.

AND + W.P.(C) 531/2022, CM APPL. 1519/2022(Stay)

MR. JASMEET SINGH CHADHA ..... Petitioner Through: Mr. Chinmaya Seth, Mr. A.K.

Seth, Advs.

versus COMMISSIONER OF CUSTOMS, IGI AIRPORT, NEW DELHI ..... Respondent Through: Mr. Satish Kumar, Sr. Standing Counsel for respondent no. 2 & 3 with Mr. Dhruv, Mr. Atul Mandal, Advs.

AND + W.P.(C) 8083/2023, CM APPL. 31146/2023(Stay)

MS. SHANAZ MALIK ..... Petitioner Through: Ms. Akanksha Mehra, Mr.

Lakshay Saini and Mr.

Himanshu Tyagi, Advs.

versus UNION OF INDIA ..... Respondent Through: Appearance not given.

CORAM:

HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE DHARMESH SHARMA DHARMESH SHARMA, J.

1. In our country, ‗gold‘ has always been symbolized as a pious material embracing the powers of the divine. Perhaps no one prizes gold more than we Indians do. Such is the temptation to acquire and possess ‗gold‘ that since it is much cheaper outside India in certain countries, people of our country travel to various foreign locations and attempt to bring ‗gold‘ into India, albeit employing or deploying various kinds of clandestine and dubious measures, and inevitably landing up on the wrong side of the law in our country. Even foreign nationals are no exception. There is no gainsaying that bringing of ‗gold‘ in an unauthorised or illegal manner causes a cascading effect on the economy of the country. As we shall discuss hereinafter, the customs authorities too have been dealing with issues of the importation of ‗gold‘ in a manner that does not inspire confidence. It is our experience that at times the authorities concerned have manifestly exercised their powers arbitrarily in matters of assessment and levy of duty, imposition of fine and/or penalty besides release/redemption of the confiscated gold. Such arbitrariness leaves much to be desired in terms of transparency, equity and fair play in action, which does not augur well to realize the constitutional aim of maintaining rule of law in the country.

2. It is in the said background that the issues arise in the aforesaid five Writ Petitions as to the interpretation of certain provisions of the Customs Act, 1962, as amended upto date1 as to whether bringing of gold into India falls within the ambit of a ‗prohibited‘ article under section 2(33) read with Section 11 of the Act, and if so, to what legal

1 The Act

effect as to its release/redemption on payment of fine/penalty under section 125 besides 1122 and 114 of the Act; and at the same time raising an issue as to whether bringing of gold into India without declaring it on arrival at Customs amounts to ―smuggling‖ of gold into India in violation of Sectio