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2023 Supreme(Online)(KER) 28850
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
SAFIR P – Appellant
Versus
THE COMMISSIONER OF CUSTOMS (PREVENTIVE) – Respondent
WP(Crl.) 259 2023
SRI.BABU S. NAIR SMT.SMITHA BABU
Confiscation of a vehicle under the Customs Act requires actual use in smuggling, not mere apprehension of future use.
Headnote:
Seizure - Vehicle - Customs Act Sections [106, 110, 115] - The court ruled that the Customs Department could not seize a vehicle based on apprehension of future use for smuggling, as it had not been used or involved in any smuggling act.
Fact of the Case:
The petitioner, residing abroad, discovered upon his return that his car had been seized by Customs while it was parked at the airport, based on a report of suspected involvement in gold smuggling, despite no smuggled goods ever being in the vehicle.
Finding of the Court:
The court analyzed sections 106, 110, and 115 of the Customs Act, concluding that the seizure was illegal as the vehicle had neither been used for smuggling nor was there any valid basis for future apprehension of its use in such a manner.
Issues: Whether Customs has the authority to seize a vehicle solely based on the possibility of it being used for future smuggling activities.
Ratio Decidendi: The power of confiscation requires actual use in smuggling activities; the apprehension of future use does not provide a valid ground for seizure under the Customs Act.
Final Decision: The seizure of the vehicle was declared illegal, and it was ordered to be released to the petitioner.
JUDGMENT
Can a vehicle be seized by the Customs on an apprehension that it may be used as a means of transport of smuggled goods? The aforesaid question arises for consideration in this writ petition.
2. Petitioner is the owner of a motor car bearing registration No.KL-52-R-9498. Petitioner claims that he is residing in Dubai and doing business there. He alleges that he had handed over the car to one of his family friends as there was none to use his car at his house. Petitioner left for Dubai on 09.06.2022 and returned only on 22.11.2022. On his return, he learnt that his vehicle was seized from the parking area of the Cochin International Airport on 26.07.2022 by the Customs authorities. On further enquiry, it was revealed that two persons had travelled in his car to the airport to receive a passenger carrying 931.73 gms of gold, which was apparently smuggled into the country.
3. Immediately on getting information of the seizure of his vehicle, petitioner filed an application for its release. In the meantime, petitioner realised that the seizure of the vehicle was illegal as, even according to the customs, the vehicle was not used as a means of transport or as a carriage for smuggled goods. The writ petition was thus filed seeking release of his vehicle and for a declaration that the seizure is illegal and that his car cannot be confiscated under law.
4. A statement as directed by this Court has been filed by the respondent pointing out that based on an intelligence report received by the Customs Department on 26.07.2022, regarding the arrival of two persons in a Car bearing registration No.KL-52-R-9498 for collecting smuggled gold, the officials of the customs intercepted the vehicle at Cochin International Airport. At the time of interception, there were two persons inside the vehicle and one person by the name of Sri.Abdulrahman standing outside the car. The gold weighing 931.73 gms and having a market value of Rs.45,96,224/- was seized from Sri.Abdulrahman, who allegedly smuggled the gold from Doha, on flight IX-476. Indian currency amounting to Rs.75,000/- was seized from the persons sitting inside the car.
5. The respondent has also mentioned that, in a statement given under section 108 of the Customs Act, 1962 (for short ‘the Act’), the persons sitting inside the car informed that Sri.Muhammed Jabir (to whom the petitioner had handed over the car for use) had asked them to reach the Cochin International Airport to collect the gold from Sri. Abdulrahman and also handed over the cash to be paid as remuneration for smuggling the gold, which was intended to be transported and handed over to Sri.Muhammed Jabir. In his statement under section 108 of the Act, Sri.Abdulrahiman, who was the person standing outside the car, alluded that one Sri.Shameer had handed over the gold to him at Doha, and he was asked to handover the same at Cochin International Airport for remuneration. According to the respondent, Sri. Muhammed Jabir was the person in possession of the vehicle, and questioning him is crucial to identify the modus operandi of smuggling gold and its transportation, and therefore detention of the vehicle is essential. The respondent also pointed out that petitioner must take recourse to the effective remedy under section 122 of the Act, and therefore writ petition was sought to be dismissed.
6. I have heard Sri. Babu S.Nair, learned counsel for the petitioner as well as Smt.A.K.Preetha, learned Standing Counsel for the respondent.
7. The principle of availability of alternative remedies is only a rule of discretion. Considering the admitted facts and the legal issue raised, this Court is of the opinion that the jurisdiction under Article 226 can be exercised in the present case to bring a quietus to the dispute raised, instead of relegating the petitioner to the remedy of adjudication under section 122 of the Act.
8. Concededly, at the time when the vehicle was intercepted, there was no gold inside. The further admitted case of
