AI Drafter 
TaxTMI 
TaxTMI 
2025 (2) TMI 321
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....e get spouse sponsor visa. She got her visa in the month of November 2023. Thereafter, once again, she travelled to India and landed at Chennai International Airport on 30.12.2023 at 03.30 pm along with her mother-in-law and sister-in-law with her children. As her husband had also come from France on 27.12.2023, to accompany her to France, they planned for pilgrimage too, to visit the various temples in Tamil Nadu, as it is our custom and tradition since she is newly married and yet to start her life in abroad during our visit in Tamil Nadu. 3. Further, he would submit that the petitioner along with her in-laws and 3 children, had landed at Chennai on 30.12.2023 at 03.30 pm and cleared the immigration formalities. The details of them are as follows: S.No Name Age Relation to petitioner 1 Thanushika 30 Petitioner 2 Arasi Inbamathi 60 Mother-in-law 3 Kirushalini 39 Sister-in-law 4 Abilin Reegan 8 Children of Sister-in-law 5 Akshara Reegan 6 6 Arush Reegan 4 4. While passing the customs, the customs officer/2nd respondent herein had checked their belongings and questioned about her gold bangles weighin....
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....ng with her family members were allowed to exit the Airport at 08.30 pm on the very same day, which counts only 5 hours of detention. 8. In spite of expressing the petitioner's genuineness and the purpose of coming to India, the respondents had neglected and refused to return their jewels. Since the petitioner has to live with her husband, if the jewels are not returned to her, her life will be in distress as the jewels are her thaali and shridanam, which are connected with the sentiments, tradition and culture. 9. Further, he would submit that the jewels, which are their personal property, are not subject to any irregularities and the same is not in violation of any law. The petitioner is also ready to undertake and expressed her willingness to abide by any condition laid down by the respondents. The details of the jewels are as follows: S.No Name of the person Age of the person Relation to petitioner Grams of gold detained from them Grams of gold as recorded by the respondent 1 Thanushika 30 Petitioner 140 166 2 Arasi Inbamathi 60 Mother-in-law 80 78 3 Kirushalini 39 Sister-in-law 44 44 4 Abil....
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....nal and personal search was conducted. 15. During the personal search, she was found wearing two gold bangles and three gold chains of 22K purity, collectively weighing 166 grams. The said jeweleries were handed over by the petitioner for examination and quantification, whereby it was examined by a Government-approved Approver. Subsequently, the said jewellery being a non-bonafide baggage and the petitioner being a foreign national, was ineligible to bring gold jewellery into India either in her person or in her baggage, the same was seized under Section 110 of the Customs Act, 1962. 16. In a similar manner seizures of gold jewellery totally weighing 78 grams was effected from the possession of the petitioner's mother-in-law and gold jewellery totally weighing about 44 grams from the possession of petitioner's sister-in-law under separate Mahazar proceedings conducted on 30.12.2023. All the Mahazar proceedings were conducted in a peaceful manner without causing any inconvenience to the petitioner herein and by following due course of law. The sentiments of the petitioner herein were not hurt and the petitioner was explained the provisions of the Baggage Rules, 2016 as....
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....Rule with regard to the inclusion of the word "carried on the person" in the Baggage Rules, 2016. Therefore, he would submit that when a person worn the jewelery, it would not be considered as baggage, thus, the Baggage Rule will not apply since the same is beyond the scope of the Act. Hence, he would submit that the detaining of jewellery under the said Rule is contrary to the provisions of the Act and requests this Court to release the gold, which were seized by the 2nd respondent. 21. I have given conscious consideration to the submissions made by the learned counsel appearing for the petitioner and the learned Senior Standing counsel appearing for the respondents and also perused the materials available on record. 22. In the case on hand, the petitioner is a citizen of SriLanka, who travelled to Chennai on 30.12.2023 at 3.30 pm. When the search was conducted, it was found by the respondents that the petitioner and her family members have wearing jewels, which exceeds the limit prescribed in the Baggage Rules, 2016. The details of the jewels are as follows: S.No Name of the person Age of the person Relation to petitioner Grams of gold detained from the petit....
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.... a visual and spiritual representation of the marital vows and the lifelong commitment between the couple. c) For every women, the "thaalikodi" is not merely a piece of jewelry but an emotional and spiritual emblem of their marital bond. It represents love, trust, and mutual respect between spouses. The act of tying the "thaalikodi" during the wedding ceremony is often accompanied by prayers and blessings, making it a profoundly emotional moment for the couple and their families. d) Religious texts and practices highlight the "thaalikodi" as an integral part of the solah shringar (sixteen adornments) of a married woman, reinforcing its role as a symbol of auspiciousness and spiritual connection. e) The amount of gold used in a "thaalikodi" varies significantly based on cultural practices, personal preferences, and regional traditions. In South India, the gold content in the "thaalikodi" often ranges from 4 to 128 grams or more. The size and weight depend on the family's traditions and financial capacity. 24.3 In the present case, the 2nd respondent, being well aware of the sentiments of "thaalikodi", had asked the petitioner to remove the same. In this....
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....m her neck. The petitioner's in-laws also begged the officer not to do so, but they were man-handled and pushed on the floor. d) The 3 children started screaming and shivering with fear and myself at one point of time fainted and fell down on the floor and a doctor from Airport Authority treated the mother-in-law of the petitioner and advised the officials to immediately take me to Hospital. e) However, the Officials did not bother, but forced the petitioner and her in-laws to sign on some typed papers, in which it had been mentioned that the ornaments seized from us are not sentimental, but smuggled things. f) The said customs officer told that our jewels would be returned when we go back from India, having no other way, but listening the said officer, they agreed to sign the papers, moreover the 2nd respondent not even allowed us to read the paper. g) Seeing the conditions of the children, the petitioner begged, to allow us to exit, but the duty officer told that the officials who handled this matter had left to home and without her knowledge, they could not be allowed to exit. h) The then duty customs officer only allowed the peti....
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....use title of the Petition and set forth (a) facts leading to the filing of the Petition; (b) facts giving jurisdiction to the High Court to entertain the Petition; (c) the grounds, in case of a Writ Petition; and (d) the interim relief, final relief. (3) The interim relief and final relief, as far as possible, shall be in the penultimate and the last paragraphs respectively of the common affidavit. (4) The affidavit shall be drawn up in the first person and be divided into paragraphs numbered consecutively. (5) The deponent of an affidavit shall be identified clearly with full name, parent's/spouse's name, age, profession or trade and the official or the residential address. (6) The affidavit shall clearly mention whether the statements made therein are based on personal knowledge, information or belief. Where a statement is based on oral information, the affidavit shall disclose the source of such information and where the information is based on records, the affidavit shall give sufficient particulars of such records." 29. Rule 24 of the Writ Rules deal with Counter Affidavits and the same reads as follows....
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....as held as follows: 32. ....... Apart from justice not having been seen to be done, and there being a real danger of bias affecting the fairness of the selection process, the versions of Abdul and Binoy in their respective counter affidavits do not at all inspire confidence. Evasive denials are no denials and the allegations levelled against Abdul and Binoy must be deemed to have been accepted by them." 33. From a reading of above, it is clear that since the respondents have not denied any of the averments raised by the petitioner, thus, no doubt, it is proved that the entire proceedings were conducted in disrespectful manner and the 2nd respondent-Officer/S.Mythilli and her associates have removed the "thaalikodi" from the neck of the petitioner, when she refused to remove the same. Further, the Mahazar was prepared with false averments as if the goods were smuggled and got in the sleeves of the petitioner, which is contrary to the above admitted facts. 34. Further, the counter filed by the respondents varies from the confiscation order on the aspect of the manner, as to how the jewellery was carried by the petitioner. In the confiscation proceedings, it has been re....
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....his Court suspects that the 2nd respondent/Mythilli and her subordinates have orchestrated this entire episode in order to divert the attention of the Officials for the benefit of somebody else and hence, the Authorities should examine and take appropriate actions against the erring officials on the said aspect. 38. Therefore, as stated in the averments of the petitioner, the case was foisted against the petitioner as if they have smuggled and they were forced to sign the Mahazar even without reading it. Since those averments were not specifically denied by the respondents, the same would amount to deemed to be admitted by them. 39. Further, it appears that the petitioner has also given a letter dated 22.01.2024 to the Joint Commissioner of Customs, narrating the entire facts and requested for release of goods, however, the same was not considered. In the said letter, it has clearly been stated that in the "Thaalikodi" (mangalsutra), the name of the petitioner's husband (Jayakanth) has been inscribed. 40. Apart from the illegalities, such as, detaining the petitioner and her relatives, seizure of gold from them and preparation of Mahazar with false information, it is a....
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....toms Act, 1962, which reads as follows: 79. Bona fide baggage exempted from duty. (1) The proper officer may, subject to any rules made under sub-section (2), pass free of duty- (a) any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules; (b) any article in the baggage of a passenger in respect of which the said officer is satisfied that it is for the use of the passenger or his family or is a bona fide gift or souvenir; provided that the value of each such article and the total value of all such articles does not exceed such limits as may be specified in the rules. (2) The Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may specify- (a) the minimum period for which any article has been used by a passenger or a member of the crew for the purpose of clause (a) of sub-section (1); (b) the maximum value of any individual article and the maximum total value of all the articles which may be passed free o....
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....rriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, - (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger: Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger: Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. ii) Definition of Baggage under the Customs Act, 1962: "(2)(3) - "Baggage" includes unaccompanied Baggage but does not in....
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.... it is not so. In India, as per our customs, it is normal to wear 10 nos. of bangles for a marriage function. In such case, it is for the Officers to apply their mind while detaining the gold. If 10 nos. of chains were worn by a person, then it would be suspectable and if anything is hide, then the provisions of Section 101 and 102 of the Customs Act, 1962, would apply since it clearly amounts to secreting the gold in their body under the pretext of worn in the body. 54. Considering the above aspect only, while enacting the provisions of the Customs Act, the Parliament has consciously excluded the jewels worn by the passengers. If there is any intention to put all the passengers into hassle, disrespecting their proprietorial rights, dignity, forgoing the customs, against the fundamental rights, let the Parliament take a decision and amend the provisions of the Act. Till then, the Officers have to apply their minds with regard to detaining the passenger and the gold worn by them as the same would not fall within the purview of the Baggage Rules, 2016. 55. The Doctrine of ultra vires states that the Rule making body must function within the purview of the Rule making authority ....
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....legated legislation should not travel beyond the purview of the parent Act. (b) Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated legislation may be inconsistent with the provisions of the parent Act; there may be non-compliance with the procedural requirement as laid down in the parent Act. It is the function of the courts to keep all authorities within the confines of the law by supplying the doctrine of ultra vires." 60. Further, in the judgment of the Hon'ble Apex Court rendered in State of Jammu and Kashmir vs. Lakhwinder Kumar and others reported in (2013) 6 SCC 333, it has been held as follows: 20. We must answer here an ancillary submission. It is pointed out that the Rules made to give effect to the provisions of the Act have to be consistent with it and if a rule goes beyond what the Act contemplates or is in conflict thereof, the rule must yield to the Act. It is emphasised that Section 80 of the Act confers discretion on the officer within whose command the accused person is serving the choice between criminal court and the Security Force Court without any rider, wherea....
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....ority could ever have made it. It was further held that Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorized and/or violative of general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed to the power delegated or otherwise discloses bad faith. 19. In Shri Sitaram Sugar Co. Ltd. v. Union of India [1990 (3) SCC 223], a Constitution Bench of this Court reiterated : "Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterized as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be "reasonably related to the purposes of the enabling legislation". See Leila Mourning v. Family Publications Service [411 US 356]. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorized end or do not tend in so....
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....of the Baggage Rules, 2016 is ultra vires, the detention of gold under the Baggage Rules, 2016, in the present case would not apply, unless and otherwise if it is secreted in person, for which, the proceedings shall be initiated under Section 101 of the Customs Act, 1962, however, that is not the present case, except to the extent of false charges framed by the 2nd respondent against the petitioner. 64. Further, in this case, no show cause notice was issued prior to the passing of confiscation order, however it was mentioned in the order that receipt of show cause notice was waived. As this Court has already held that the entire Mahazar was prepared with false information in order to foist case against the petitioner for the reason better known to the 2nd resondent/Mythili and based on this false information available in the Mahazar, the confiscation order was passed, this Court is unable to believe the statement, which was recorded in the confiscation order that the petitioner has waived the show cause notice. 65. That apart, it was stated that though 3 opportunities of personal hearing were provided to the petitioner on 04.04.2024, 08.04.2024 and 12.04.2024, no one has appe....