Full Judgment Text
R-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4931/1994
AJIT SINGH ..... Petitioner
Through Ms. Shweta Singh, advocate for
Mr.R.M.Bagai.
versus
U.O.I. & ANR ..... Respondents
Through Mr. K.K.Sharma, advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
O R D E R
% 30.04.2009
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1. Petitioner, Mr.Ajit Singh is an Afghan national. On 6 September,
1992 he was intercepted with foreign exchange equivalent to US$
10,343.00 and INR 841 at the international airport at Delhi before
boarding a flight to Dubai. The break-up of foreign currency found in the
possession of the petitioner is as under:-
Srl.No. Amount
1. Saudi Riyals 28,600
2 UAE Dirhams 2,425
3. Pound Sterling 1,074
2. The foreign currency was seized and statement of the petitioner was
recorded under Section 108 of the Customs Act, 1962 (hereinafter referred
to as the Act, for short).
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3. Show Cause notice dated 22 January, 1993 under Section 124 of
the Act was issued to the petitioner. Petitioner pleaded not guilty and
WPC NO.4931/1994 Page 1
replied to the said show cause notice. Additional Collector of Customs vide
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Order dated 30 August, 1993 confiscated the entire foreign exchange and
Indian currency of Rs.841/-. In addition, personal penalty of Rs.50,000/-
was also imposed on the petitioner. Appeal filed by the petitioner was
dismissed by Collector of Customs (Appeal), I.G. Airport vide Order dated
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13 October, 1993.
4. The petitioner preferred a Revision Petition under Section 129-DD of
the Act to the Government of India but the same stands rejected vide
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impugned Order dated 15 June, 1994. Thus, confiscation of the entire
currency and penalty of Rs.50,000/- imposed on the petitioner stand
confirmed.
5. Learned counsel for the petitioner has raised two contentions before
me. It is submitted that the authorities below have not considered the
contention of the petitioner relating to exchange rate fluctuation and
secondly, foreign exchange to the extent of US$ 10,000.00 could not have
been confiscated. It is submitted that even if there was default of non-
declaration, it was to the extent of foreign exchange equivalent to US$
343.00 and not the entire amount equal to US$ 10,343.00.
6. In the statement of the petitioner recorded under Section 108 of the
Act immediately after the search at the airport, the petitioner had stated
as under:-
“I did not declare this foreign currency. I left Kabul 8
months earlier to Delhi because the conditions are very
WPC NO.4931/1994 Page 2
bad there due to fighting. Therefore, I had to leave
Kabul and obtain permit No. RC31934/Afghan/Delhi in
the year 1992 dated 4.5.92 for living here. After coming
to India, I hae been going to Dubai three-four times per
month approximately. I take to Dubai ready-made
garments from India and some times bring textiles from
Dubai to India. I had brought currency of US Dollars
10,343 recovered from me today from my brother for
buying textiles here. Bank rate was low. So, I was
taking the same back. I had never taken foreign
currency out of India earlier.” (emphasis supplied)
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7. The Additional Collector of Customs in his order dated 8
September, 1993 observed that the petitioner had made 11 visits to Dubai
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during the last 3 months 12 days prior to 6 September, 1992. He
rejected the contention of the petitioner that he was a tourist and in his
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order dated 30 August, 1993 has observed as under:-
“ In the absence of any proof that the
noticee was engaged in any legitimate export
business and that he had documentary or
otherwise proof of legal acquisition/possession
and export of Indian and or foreign currency, it is
established that the noticee attempted to
improperly export the currency, seized on 6.9.92,
adopting the modus-operandi that he being a
holder of Afghani passport is entitled to
importation/exportation of currency without
declaration upto an amount equivalent to 10,000
US Dollars. Therefore, the seized currency are
liable to confiscation under the provisions of
Section 113(d) of the Customs Act, 1962 and for
such an act of the noticee he is liable for a
penalty under the provisions of Section 114(1) of
the Customs Act, 1962.”
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8. Collector of Customs (Appeals) in his order dated 13 October, 1993
held that the petitioner was a foreign national and explanation given by
WPC NO.4931/1994 Page 3
the petitioner was vague and his contention that he had brought the
foreign currency from abroad was unsubstantiated and incorrect. It was
held that the onus to establish that he had brought the foreign currency
into India was on the petitioner.
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9. The petitioner had relied upon certificate dated 13 November, 1993
issued by Al Misbah Exchange, Dubai certifying that the petitioner- Mr. Ajit
Singh holder of Afghan passport was issued foreign currency as detailed
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therein on 26 August, 1992. The said certificate was not dealt with by
both Additional Collector of Customs and Collector of Customs (Appeals). I
may note that these two authorities have not quoted and referred to
specific evidence that the petitioner had purchased foreign currency in
India but have proceeded on the basis that the onus was on the petitioner
to show source of the said foreign currency and presumed that he had
probably bought the said foreign currency in India. The Joint Secretary,
Government of India, while disposing of the revision petition for the first
time considered the certificate of the petitioner and his contention that he
had made frequent travels abroad for business purposes and these were
legitimate visits. The Joint Secretary while dismissing the revision petition
has given his reasoning as under:-
“ After going through the records of the
case, Government observe that the certificate of
Al Misbah Exchange itself belies party’s
contention that the quantum of foreign exchange
seized went beyond US$ 10,000 limit due to
exchange rate fluctuations; for apart from the
WPC NO.4931/1994 Page 4
currency said to have been converted 200 US
Dollars were also seized. Thus the excess beyond
US$ 10,000 was not on account of rate
fluctuation. Even otherwise the lower authorities
have given good reasons to disbelieve the story
with which the Government agree. The applicant
is unemployed and his frequent visits abroad for
short durations (11 times to Dubai in three
months) tell a different story.
The application being without merit is
rejected.”
10. The findings given by the Joint Secretary, Government of India, are
contradictory to some extent. On one hand, the certificate has been
referred to and then observed that as per the certificate, the quantum of
foreign exchange seized was beyond US$ 10000. While making the said
observation, the Joint Secretary has not taken into consideration the
buying and selling rates and exchange rate fluctuation. Moreover, it is the
exchange rate prevailing on the date when the petitioner had come to
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India, i.e. 27 August, 1992, which is relevant. As on the said date any
foreign national could bring in India foreign currency equal to US$ 10,000.
Further, the Joint Secretary should have also examined and considered
whether the entire amount of US$ 10,343 should be confiscated and
accordingly penalty should be imposed. In the second portion of the order
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dated 15 June, 1994 passed by the Joint Secretary, he has merely
observed that the reasons given by the lower authorities are good and the
petitioner was unemployed and had made frequent visits abroad. The
second finding may not be relevant if the petitioner was entitled to bring
WPC NO.4931/1994 Page 5
foreign exchange upto US$ 10,000 into India without declaration.
Moreover, the order is cryptic and does not examine the pleas and the
contentions of the petitioner.
11. In these circumstances, I allow the present writ petition and quash
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the order dated 15 June, 1994 passed by the Central Government and
remand the matter back to the Central Government to pass a fresh order
after examining the contentions of the petitioner.
12. The petitioner will furnish his latest address for service to the Joint
Secretary, Government of India, Ministry of Finance, Department of
Revenue within four weeks and fresh order will be passed after issuing
notice to the petitioner at his new address. The Central Government will
decide the revision petition independently and without being influenced by
any observations made in this order.
The writ petition is accordingly disposed of. No costs.
SANJIV KHANNA, J.
APRIL 30, 2009
P/VKR
WPC NO.4931/1994 Page 6