2017 (9) TMI 1456 - HC - Customs

Court upholds order on Sweet Whey Powder confiscation & penalty under Customs Act.

The court upheld the impugned order confiscating Sweet Whey Powder under the Customs Act, 1962, and imposing a penalty, rejecting the petitioner's ... Validity of laboratory test report - Maintainability of writ petition challenging technical report - Writ jurisdiction under Article 226 - Malafide - Impleading of testing officer and cross-examination - Availability of statutory appellate remedy and computation of limitationMaintainability of writ petition challenging technical report - Writ jurisdiction under Article 226 - The writ petition challenging the technical test report is not maintainable before the High Court under Article 226 in the absence of pleaded malafide or other exceptional circumstances. - HELD THAT: - The Court held that when a challenge is to a technical report prepared by government laboratories, the High Court exercising jurisdiction under Article 226 will not ordinarily examine the validity of such a report unless malafides are alleged or there exist exceptional grounds. Reliance is placed on the Court's earlier reasoning in a similar matter where it was observed that mere reporting of a contaminant or variation in parameters does not, by itself, vitiate a report. The petitioner's contentions about contradictions and variations in laboratory analyses cannot be properly tested in a writ petition and do not establish the requisite malafide to invoke extraordinary constitutional jurisdiction. [Paras 5, 7, 8]Writ petition dismissed as not maintainable insofar as it seeks to challenge the technical laboratory report.Impleading of testing officer and cross-examination - Malafide - The petitioner's plea for impleading the testing officer or for cross-examination of officials who prepared the report is untenable in the present writ proceedings in the absence of any allegation of malafide, and because those officers or laboratories are not parties. - HELD THAT: - The Court noted that reports are issued by officers in their official capacity on behalf of government laboratories (primary or referral), and no allegation of malafide has been made against the officer. Further, neither the testing officers nor the laboratories or Food Safety authorities were impleaded as respondents, which precludes the remedy of cross-examination within this writ petition. Consequently, the procedural remedy sought cannot be granted in this forum and on this record. [Paras 5, 6]Prayer for production or cross-examination of testing officers and impleading of laboratories is rejected.Availability of statutory appellate remedy and computation of limitation - The petitioner is entitled to pursue the statutory appellate remedy; the appellate authority is directed to exclude the period from 01.08.2017 until receipt of certified copy of this order when computing limitation for filing the appeal. - HELD THAT: - Although the writ petition is dismissed as not maintainable, the Court left open the statutory appeal remedy under the Act. To avoid prejudice arising from the pendency of the writ petition, the Court directed that the appellate authority must exclude the specified period for the purpose of computing limitation, thereby enabling the petitioner to prefer the appeal without being time-barred due to this litigation. [Paras 9, 10]Petitioner permitted to pursue appellate remedy; appellate authority to exclude specified period while computing limitation.Final Conclusion: The writ petition challenging the confiscation and penalty order based on laboratory test reports is dismissed as not maintainable for want of pleaded malafide and absence of impleaded testing authorities; the petitioner may pursue the statutory appeal and the appellate authority is directed to exclude the period from 01.08.2017 until receipt of the certified copy of this order for limitation computation. Issues:Impugned order by Additional Commissioner of Customs regarding Sweet Whey Powder not conforming to Food Safety and Standards Act, 2006 rules and regulations.Analysis:The petitioner challenged the order-in-original dated 08.06.2017 by the Additional Commissioner of Customs, which confiscated the Sweet Whey Powder under Section 111(d) of the Customs Act, 1962, and imposed a penalty of Rs. 2,00,000 under Section 112(a) of the Customs Act, 1962. The petitioner argued that the lab reports from two different labs showed contradictory opinions and wide variations in test results, leading to non-compliance conclusions. The petitioner requested the officials who conducted the tests to be available for cross-examination. However, the court found no allegations of malafides against the testing officer and ruled that the officer's presence for cross-examination was unnecessary as the officer acted in an official capacity. Additionally, the officer was not a party respondent in the petition, leading to the rejection of the petitioner's plea.In a similar case, the court highlighted that without allegations of malafides against testing officers, the validity of the test reports cannot be questioned under Article 226 of the Constitution of India. The court emphasized that challenging technical reports requires establishing factual discrepancies, which cannot be done through a writ petition. Therefore, the court dismissed the writ petition as not maintainable but granted the petitioner the liberty to appeal the decision. The appellate authority was instructed to exclude the period from 01.08.2017 till the receipt of the order's certified copy when calculating the limitation for the appeal. The court clarified that its observations were solely for determining the writ petition's maintainability and would not influence any future appeal proceedings.