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TaxTMI 
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TaxTMI 
2024 (7) TMI 698
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....trapati Shivaji Maharaj Terminus Airport, Mumbai (for short "CSMI Airport") due to bad weather. Upon arrival at Terminal-2, CSMI Airport, Mumbai, on specific information, the petitioner was intercepted near Exit Gate of arrival after clearing from Green Channel. She was carrying one black coloured "Samsonite" brand trolley bag as her hand baggage and blue coloured Backpack. She produced counterfoil of Boarding Ticket bearing No. ETKT 9993394394151/1269 of Seat No. 43 H showing journey from Beijing to New Delhi. Upon inquiry, she informed the Customs Officials that her flight was diverted and landed at Mumbai due to bad weather at New Delhi. She, inter alia, informed the customs officials that diverted flight was to leave back to Delhi after long gap and, therefore, she decided to clear immigration and customs in Mumbai and head to Delhi by another domestic flight to save time. 6. Air Intelligence Unit, Customs, CSMI Airport, Mumbai in the presence of pancha witnesses inquired with her whether she was carrying any prohibited goods, contraband or gold in the baggage or on her person. Upon her search and screening of her baggage, the officials suspected some thing indicating presence....
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....d. For purchasing medicine no such huge amount of sale proceed of 10 kg gold is required. On the statement itself the time of its recording is mentioned as 18:15 hours on 13.12.2019. It is not shown whether during recording of statement every question was explained to her and then her answer was translated in English and then that was recorded in the statement. Moreover, in the last page of statement in the last para translating of statement is mentioned and thereafter after signatures again endorsement in the handwriting of translator Lew is made regarding explaining the statement in Chinese. 48. When it is come on record that the accused had not cleared herself from immigration and crossed green channel when the recovery of gold was effected she has not contravened the provisions of Customs Act in respect of seized gold and committed offence under section 135 (1) (a) in respect of non-declaration and evading duty chargeable on seized gold, 135 (1) (b) for acquired possession of said gold which was liable to confiscation punishable under section 135 (1) (i) and section 132 of the Customs Act, 1962 for making any declaration which was false in any material particular. In respect....
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....3th December, 2019. My attention is invited by the learned Counsel for the petitioner that despite acquittal of the petitioner by the Court of Additional Chief Metropolitan Magistrate of all the charges and an appeal being dismissed by the lower Appellate Court confirming the judgment and order of acquittal on 2nd February, 2024, respondent No. 2 by grossly abusing it's powers and with an ulterior motive is creating hurdle in getting Exit Permit from the respondent No. 1 without justification. 17. Learned Counsel for the petitioner would argue that the petitioner had undergone 59 days of custody who was then released on 10th February, 2020. She is a mother of two daughters to whom she has not seen since 2019. He would also argue that the petitioner survived dangerous period of COVID-19 pandemic in the absence of any support from family and relatives. 18. According to the learned Counsel for the petitioner, act of respondent No. 2 is gross in nature which shows utter disrespect for law. It's conduct is mala fide and also reprehensible. 19. The only so called reason to oppose Exit Permit to the petitioner by the respondent No. 2 is that respondent No. 2 is under process of challen....
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....ge has rightly observed that the appeal is not maintainable on that count itself. 25. It appears that the Special P.P. Ms. Anuradha Mane who appeared before the lower Appellate Court took a stand that the said Circular is not binding on the Court. It is surprising as to how the Special P.P could make such a statement? More so, when there is a decision of the Supreme Court in case of Paper Products Ltd Vs. Commissioner of Central Excise, 1999 (112) E.L.T 765 (S.C.) . The learned Additional Sessions Judge has, therefore, rightly placed reliance on the said decision by referring para 5 which is extracted below; "5. It is clear from the above said pronouncements of this Court that, apart from the fact that the Circulars issued by the Board are binding on the Department, the Department is precluded from challenging the correctness of the said Circulars even on the ground of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action it has....
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....t. As already stated, till date, the Customs Department has not challenged the order. Even otherwise, that could not be a hurdle in issuing Exit Permit to the petitioner as neither any case is pending against her nor has she breached any directions issued by the Courts below. The Customs Department should have exhibited some humanitarian approach and sensitivity in light of the fact that every foreign national has fundamental right of liberty as per Article 21 of the Constitution. Even otherwise, it is not the argument of the Special P.P that interference in the acquittal is essential as it was unsustainable or perverse. It is not even the case of the Customs Department that there has been miscarriage of justice. 31. It seems that Ms. Anuradha Mane, Special P.P made an unsuccessful attempt to argue before the lower Appellate Court that there was a prior approval by the Commissioner in the form of noting but the same has not been filed before the Court. 32. It is apparent from the record that conduct of the respondent No. 2 is not only wrongful and vindictive but it amounts to gross abuse of its powers in restricting the petitioner to leave for her country without any justificatio....
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....e aforesaid Circular as well as Section 378 (4) of the Cr.P.C, appeal would lie before this Court, especially, in light of the fact that several appeals in identical matters have been preferred by the respondent No. 2 before this Court. 36. Our Constitution commands that foreign nationals coming here shall not be discriminated. They will have to be treated equally before the law and their right to live will have to be honoured and protected. They shall not be prosecuted or convicted except for violation of any law in force in India. This is guaranteed under Article 20 of the Constitution. 37. In case of Anwar Vs. State of Jammu & Kashmir (1971) 3 SCC 104, it was held that the rights under Articles 20, 21 and 22 are available not only to "citizens" but also to persons which would include "non-citizens". Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Article 22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Article 3, Article 7 and Article 9 of the Universal Declaration of Human Rights, 1948. 38. It would be advantageous to qu....