Order

Order Reserved on : 05.08.2024 Order Pronounced on : 21.08.2024 [Per Hon’ble Mr. Justice Munnuri Laxman] :

1) The matters come up for orders on stay applications. The petitioners are seeking interim protection, pending writ petitions, restraining the respondents from taking any coercive action against them on the strength of powers conferred under Sections

108/104 of the Customs Act, 1962.

2) The main challenge in the writ petitions is the Constitutional validity of Sections 104, 105 and 108 of the Customs Act, 1962 (hereinafter referred to as “the Act of 1962”) by declaring them unconstitutional and violative of the fundamental rights and other constitutional provisions. The petitioners also sought quashment of the proceedings initiated by respondents against them by invoking the powers of summoning/search and arrest as illegal &

void; and also quashment of search & seizure carried out in their business premises on 14/15.05/2024 as well as the summons dated 15.05.2024.

3) The petitioners-Om Prakash and Deepak Soni are the Proprietors of M/s Sudarshan Jewellers and M/s New Sukirti Jewellers respectively. The business premises of the petitioners were searched by the DRI Officers on 14/15.05.2024. The various materials were seized in pursuance of seizure operations and the premises were sealed. Such search and seizure was done consequent to the information received from one A.Tripathi, who was arrested for alleged smuggling of gold weighing 1503 grams. That accused A.Tripathi in his statement claimed that the gold belongs to either Om Prakash Soni or Deepak Soni, the present petitioners. In pursuance of search & seizure proceedings, summons dated 15.05.2024 were issued to the petitioners under Section 108 of the Act of 1962 fixing the date of appearance as 20.05.2024. The petitioners submitted their representation on 20.05.2024 without making themselves physically present before the authorities.

4) In the meantime, the petitioners filed Civil Writ Petitions before this Court challenging the validity of Section 104 & 108 of the Act of 1962 on the lines of the case of Radhika Aggarwal Vs. Union of India & Ors. [Writ Petition (Crl.) No.336/2018]. Thereafter, on certain objections, the aforesaid writ petitions were converted into the Criminal Writ petitions, which were dismissed by coordinate Bench of this Court as withdrawn with liberty to file fresh writ petitions, if occasion so arises. Meanwhile, the petitioners also filed separate Writ Petitions (Criminal) bearing Nos.242/2024 and 268/2024 before the Hon’ble Supreme Court and the Hon’ble Supreme Court dismissed the said writ petitions on 07.06.2024 and 25.06.2024 respectively with liberty to approach this Court. That is how the present writ petitions have been filed.

5) Heard the learned counsel appearing for the petitioners, Shri Sharad Kothari and the learned Additional Solicitor General Shri R.D.Rastogi, appearing for the respondents on the question of interim relief.

6) The main argument of the learned counsel for the petitioners is that the reliefs sought in the present writ petitions are similar to that of the SLP pending before the Hon’ble Supreme Court in the case of Radhika Aggarwal (cited supra), wherein Hon’ble Supreme Court reserved the matters for pronouncement of judgment and granted interim protection to the writ-petitioner therein. Therefore, the petitioners sought interim protection pending the writ petitions.

7) The learned Additional Solicitor General appearing for the respondents vehemently opposed the contention of the petitioners by stating that the relief prayed in the present writ petitions is not on similar lines with the reliefs sought in Radhika Aggarwal’s case (cited supra). According to him, there is no challenge to the Constitutional validity of Sections 104 & 108 of the Act of 1962 in Radhika Aggarwal’s case (cited supra) but it was led on non-

compliance of certain provisions of Criminal Procedure Code with regard to cognizable & non-cognizable off