Bombay High Court: Custom Authorities have No Power to Seal Immovable Property under Section 110 or 121 of the Customs Act, 1962

Bombay High Court: Custom Authorities have No Power to Seal Immovable Property under Section 110 or 121 of the Customs Act, 1962

The Bombay High Court by its coram comprising of Justices Sunil B Shukre and Kamal Khata has observed that there is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property. Under Section 110 or Section 121 of the Customs Act, 1962 what can be seized and confiscated is the “goods” or movable property.

In the present case, the petitioner was seeking de-sealing of his premises, which was alleged to be used for gold smuggling. He also prayed that his statement under Section 108 of the Customs Act, 1962 be recorded in visible but not audible distance of his advocate.

Per contra, the respondents- Union of India vehemently opposed to the prayers and contended that there was no material on record justifying the petitioner’s prayers. Merely bald allegation of an assault is not sufficient to grant his request for keeping his advocate present, it contended.

The Court at the outset remarked with respect to petitioner’s request of having his advocate present at visible but not audible distance was harmless nature.

The Court was of the view that, “it only seeks presence of his advocate at a visible distance but not audible distance and there is a background to such a prayer. The Petitioner alleges that he has been assaulted by some of the officers of the Customs Department in the past. This allegation of course has been denied by Respondent Nos. 1 and 2. But, what remains on record, is clear and it is the apprehension entertained by the Petitioner. It is this apprehension, which is required to be taken care of by us in a best possible manner.”

In this regard the Court found the best possible manner to deal with it, was to allow presence of the advocate at a visible distance but beyond the audible distance. The Court opined that this will also ensure transparency in the enquiry that Custom Officers propose to make with the Petitioner.

As far as the second prayer was concerned, about de-sealing of the premises of the Petitioner, the Court observed that there was no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property. Under Section 110 or Section 121 of the Customs Act, 1962 what can be seized and confiscated is the “goods” or movable property.

Section 110 and Section 121 respectively empower the customs authorities to seize the goods liable to confiscation and confiscate the sale proceeds of the smuggled goods, which are sold by the person, having knowledge or reasons to believe that the goods are smuggled goods.

The Court noted that the word “goods” has been defined in Section 2(22) of the Customs Act, 1962 and it includes (a) vessels, aircraft and vehicles (b) Stores (c) baggage (d) currency and negotiable instruments and (e) any other kind of movable.

Therefore, the Court observed, “it is thus clear that the seizure of the goods contemplated under Section 110 or Section 121 is only of movable property which is not immovable property. Even otherwise no immovable property can be seized and confiscated, though it can be attached and sold for making recovery of loss to or dues of the government as for example, when done in exercise of the power under Section 142 (1) (c) (ii) of the Customs Act, 1962, but that stage, however, is yet to reach in this case.”

Accordingly, the Court allowed the petition.