| Jun-29-2021

Point Of Interception of Goods Is an Important Evidence in Customs

The Hon’ble High Court, Madras in Mohammed Haroon Shaik Mohammed v. the Additional Commissioner of Customs [WP (MD) Nos. 3917 & 3918 of 2020 and WMP (MD) No. 5459 of 2021 decided on April 26, 2020] held that the assessable person cannot be denied access to vital piece of evidence which can prove him innocent in the eyes of law by the department (“the Respondent”). Further, since this was not done, adverse inference must be necessarily drawn against the Respondent.

Facts:

Mohammed Haroon and Shaikh Mohammed (“the Petitioners”) are Indian Citizens and returned to India after an overseas trip. Each of them carried 200 gms of gold valued at Rs. 7, 64,200/- and electronic goods more than Rs. 20,00,000/-. The Petitioners intended to declare their baggage before the customs authority and pay the whole duty but before that they were intercepted and goods in question were seized. They also asked for the CCTV footage from the airport authorities by invoking the provisions of Right to Information Act, 2005 but the same was declined.

They were arrested for a day and sought permission to re-export the seized goods. The present writ petitions are filed as there was no response from the Respondent.

The Respondent controverted the allegations made by the Petitioners saying that they received specific intelligence regarding smuggling of gold and electronic goods. Two crude gold chains weighing 200 gms each and electronic goods worth more than Rs. 40,00,000/- were seized from the Petitioners.

Issue:

Whether the Petitioner’s right to fair adjudication has been infringed by denying them access to CCTV footage.

Held:

The Hon’ble High Court, Madras WP (MD) Nos. 3917 & 3918 of 2020 and WMP (MD) No. 5459 of 2021 decided on April 26, 2020, has held as under:

• Observed that, the exact spot of the interception is highly relevant and material. The Petitioners wrote to the Respondent that if they verify the contents of the CCTV footage, their stand will be vindicated. It was the bounden duty of the Respondent to secure the CCTV footage.
• Relied on the judgement of the Hon’ble Supreme Court in Tomaso Bruno and Anr. V. State of UP [Criminal Appeal No. 142 of 2015 decided on January 20, 2015] to say that the Petitioners could have established their defence only by producing the CCTV footage. They have been denied access to this vital piece of evidence. The evidence was very much available, and it was allowed to vanish by the Respondent
• Noted that, the Respondent cannot wash away its hands by taking the plea that they have not installed the CCTV and that it is not in their control. Since this was not done, adverse inference must be necessarily drawn against the Respondent
• Further observed that, in cases where fundamental right of the noticees to fair adjudication has been violated, adjudication proceedings cannot be allowed to continue for the purpose of determining their guilt
• Noted that, the Petitioners defense has been prejudiced because of the non-production of CCTV footage. Thus, allowed the adjudication proceedings initiated against them to continue only for the limited purpose of determining whether the goods in question can be allowed to be re-exported or cleared on payment of applicable duties and to pass an order within 4 weeks after granting the Petitioner an opportunity to be heard
• Permitted the Petitioners to apply for issuance of duplicate passport and directed the jurisdictional passport authority to issue duplicate passport to the Petitioners without delay
• Held that, clean chit is not given to the Petitioners as they are suspicious on many grounds, but suspicion is one thing and proof is another. Hence, disposed off the writ-petitions.

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