Patna High Court
Fariyad Alam vs The Union Of India on 24 June, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13176 of 2023
======================================================
Fariyad Alam, Son of Shekh Reyaz, Resident of village - Basantpur, P.O. and
P.S. - Mainatand, District - West Champaran, Bihar - 845306.
... ... Petitioner
Versus
1. The Union of India through Ministry of Homes, P.S. Khan Market
Government of India, New Delhi.
2. The Commandant, 47 BN, Seema Suraksha Bal, P.S. - Basantpur,
Mainatand, Raxaul.
3. The Assistant, Sub-Inspector, S.S.B., 47 BN. P.S. Basantpur, Maintarnd,
District - West Champaran.
4. The Principal Commissioner, Department Customs, 5th Floor, Central
Revenue Building, Bir Chand Patel Marg, Bailey Road, P.S. - Kotwali, Patna
- 1.
5. The Deputy Commissioner, Department of Customs (P) Division, P.S. -
Mainatarnd, Motihari.
6. The Superintendent, Department of Customs, P.S. - Bettiah.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Ms. Archana Meenakshee, Advocate
Mr. Rohit Singh, Advocate
Mr. Ranaveer Prawar, Advocate
For the UOI : Dr. K.N. Singh, ASG
Mr. Anshuman Singh, Sr. SC
Mr. Alok Kumar, CGC
Mr. Shivaditya Dhari Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 24-06-2025
Heard Ms. Archana Meenakshee, learned counsel for the
petitioner and Dr. K. N. Singh, learned ASG assisted by Mr.
Anshuman Singh, learned Senior Standing Counsel for the
Department of CGST/CX.
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
2/21
2. The petitioner in this case is challenging the Seizure
Memo dated 21.04.2023 (Annexure 'P/6' to the writ application)
whereby and whereunder 35 bags of wheat containing 55 Kgs each
have been seized by one Sunil Dutt Gaurola, Assistant Sub-
Inspector, 47 Battalion, Shashtra Seema Bal, Bihar and handed
over to the Assistant Commandant 'A' COY, 47th Battalion, SSB,
Bihar. The petitioner has also prayed for the provisional release of
the seized vehicle along with the consignment of 35 bags of
wheats.
3. At the outset, it is recorded that in course of hearing
of the writ application on 23.06.2025, learned counsel for the
petitioner has specifically submitted that she would confine her
submissions in this case only with regard to the seizure of the
wheat. Since the order of confiscation has been passed during
pendency of the writ application and the order of confiscation was
brought on record by the respondents with their counter affidavit,
the petitioner filed an interlocutory application seeking quashing
of the Adjudication Order No. 107/CUS/DC/MTH/2023-24 dated
22.12.2023
which is Annexure ‘C’ to the supplementary counter
affidavit of respondent nos. 4, 5 and 6. A copy of the said order has
been annexed as Annexure ‘P/7’ to the Interlocutory Application
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
3/21
No. 1 of 2025. In the interlocutory application, the petitioner has
prayed for the following reliefs:-
“(i) To quash order-in-original No.107/CUS/DC
/MTH/2023-24 DATED 22.12.2023 whereby adjudicating
authority has confiscated the seized goods valued at
Rs.46,200/- and seized conveyance valued at Rs.3,20,000/-
under section 113 and 115 of the Customs Act, 1962 as per
averment of respondent no.4,5 and 6 in paragraph 5 of their
supplementary counter affidavit.
(ii) To set aside the e-auction order of the instant seized
goods vide no. MSTC/PTN/Customs dated 1.2.2024
involving Rs.31,678/ as sales proceeds as per the averment
of Respondent no.4,5 and 6 in paragraph 8 of their
supplementary counter affidavit.
(iii) To grant petitioner the seizure value of the seized
goods valued at Rs.46,200/- as per the averment of
Respondent no.4,5 and 6 in paragraph 5 of their
supplementary counter affidavit.”
4. This Court, vide its order dated 13.05.2025, allowed
the petitioner to amend the writ application. Respondent nos. 4, 5
and 6 have also filed a counter affidavit to the interlocutory
application. This Court has recorded in it’s order that the
statements made in the interlocutory application and the prayers
made in paragraph ‘4’ of the application shall form part and parcel
of the writ application.
5. It has been noticed that initially when the counter
affidavit was filed on behalf of the respondent nos. 4, 5 and 6, the
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
4/21
State Respondents have brought on record the Seizure Memo
prepared on 24.01.2023 at 06:10 Hours under signature of the
Officer who has signed for Assistant Commandant ‘A’ COY, 47 th
Battalion, SSB, Bihar. The Seizure Memo contains the signature of
two persons as witness, namely, Javed and Naimul Hoda of Village
Basantpur, District-West Champaran.
6. The Seizure Memo contains reason for seizure which
reads as under:-
“Violation of section 7, 11, 46 and 47/50 & 51 of
custom act, 1962 read with section 3(2) of the foreign
trade (development and regulations) act, 1992 &
government of India, ministry of finances, 1962″
7. As regards the Seizure Memo, learned counsel for the
petitioner submits that from the Seizure Memo, it would appear
that the reasons for seizure as required to be shown in the Seizure
Memo in terms of Section 110 of the Customs Act, 1962
(hereinafter referred to as the ‘Act of 1962’) has not been duly
shown. Relying upon the judgment of this Court in the case of M/s
Ashoke Das vs. Union of India & Ors. (disposed of on
19.02.2025 vide C.W.J.C. No. 4918 of 2021), Jayesh Agarwal
Vs. Union of India (C.W.J.C.No. 7085 of 2022 disposed of on
24.02.2025) and A.S. Trading and Company vs. The Union of
India (C.W.J.C. No. 17756 of 2024 disposed of on 25.04.2025),
learned counsel for the petitioner submits that the identical kind of
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
5/21
seizure memos in those cases have been quashed by this Court and
the same has attained finality. It is pointed out that from the
proforma for seizure, it would appear that Sunil Dutt Gaurola
who is an Officer in the Rank of Assistant Sub-Inspector seized the
wheats on 21.04.2023 at 06:10 Hours in Basantpur Village Pillar
no. 415/26 when the wheats were allegedly being smuggled from
India to Nepal. In column 12 of the proforma for seizure, the
Assistant Sub Inspector Rank Officer has informed that the seized
items have been handed over to Custom Bettiah and the petitioner
has been shown as the person arrested. The name of the SSB
Personnel involved in the process as mentioned in column 15 has
not been disclosed rather it is mentioned as “Enclosed
Annexure-‘B’ ” but there is no such enclosure. However, in the left
hand side of the proforma, seal of Assistant Commandant, ‘A’
COY, 47th Battalion, SSB, Bihar has been affixed and someone put
his initial signature thereon for the Assistant Commandant.
8. Learned counsel has brought to the notice of this
Court that Annexure ‘P/9’ which is a letter written by the petitioner
to the Deputy Commissioner, Customs, Motihari wherein he
prayed for release of the wheats. He has submitted that the wheats
were being carried on tractor with trolley from Basantpur,
Mainatand to Bettiah with valid GST Invoice but it was seized by
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
6/21
an Assistant Sub-Inspector who stopped the tractor asking him to
exchange pleasantries. When the petitioner did not agree to
exchange pleasantries, he was manhandled and the tractor loaded
with 35 bags of wheats were seized by ASI who was not
competent and had no jurisdiction to effect the seizure under
Section 110 of the Act of 1962. He prayed for release of the wheat
bags. It is submitted that the respondents did not take any action
on the letter of the petitioner as contained in Annexure ‘P/9’ to the
writ application.
9. The petitioner has enclosed copy of the invoice with
its GSTIM/UIN and PAN. The petitioner has also enclosed bill
supply and these documents have been enclosed as Annexure ‘P/2’
and ‘P/3’ series. Learned counsel submits that vide Notification
No. 99/2014-CUSTOMS (N.T.), the Central Government has, in
exercise of its power under Section 6 of the Customs Act entrusted
to the Officers and Subordinate Officers of the Sashastra Seema
Bal constituted under Section 4 of the Sashastra Seema Bal Act,
2007, the functions specified in the corresponding entry in 3 rd
column of the table and they have been authorised to exercise all
function of an Officer of Customs within the local limits of the
areas specified in the schedule. So far as the functions under
Sections 100, 102, 106, 107 and 110 of the Act of 1962 is
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
7/21
concerned, all inspectors and Sub-Inspectors Rank Officers have
been entrusted with the function. Therefore, it is submitted that the
seizure effected by an Assistant Sub-Inspector Rank Officer was
beyond his jurisdiction and authorisation.
10. So far as the legality of the Seizure Memo is
concerned, learned ASG assisted by learned Sr. Standing Counsel
for the Department of CGST & CX does not dispute that the
identical kind of seizure memos have been quashed by this Court
after holding that merely writing of sections of the Customs Act in
the seizure memo would not be a compliance of the mandate of
Section 110 of the Act of 1962. It is not disputed that what has
been held by this Court in the case of M/s Ashoke Das (supra)
with regard to legality of the seizure memo would hold the field in
the present case as well.
11. Learned ASG has, however, attempted to
demonstrate that the seizure was effected by the Assistant
Commandant, 47th Battalion, SSB but on the queries made by this
Court on the face of the letter written by the ASI Rank Officer to
the Customs Officials, it could not be denied that as per the said
letter, ASI along with his five constables was on duty and he had
intercepted the tractor loaded with wheats, he had arrested the
driver of the vehicle and seized the vehicle and 35 bags of wheats
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
8/21
which he handed over to the Customs Officers. In fact, it is evident
from the proforma of inspected goods that it has been prepared by
the ASI. Section 110 of the Act of 1962 reads as under:-
“110. Seizure of goods, documents and things.–(1) If the
proper officer has reason to believe that any goods are liable to
confiscation under this Act, he may seize such goods:
1
[Provided that where it is not practicable to remove, transport,
store or take physical possession of the seized goods for any
reason, the proper officer may give custody of the seized goods
to the owner of the goods or the beneficial owner or any person
holding himself out to be the importer, or any other person from
whose custody such goods have been seized, on execution of an
undertaking by such person that he shall not remove, part with,
or otherwise deal with the goods except with the previous
permission of such officer;
Provided further that where it is not practicable to seize any such
goods, the proper officer may serve on the owner of the goods an
order that he shall not remove, part with, or otherwise deal with the
goods except with the previous permission of such officer.
2
[(1-A) The Central Government may, having regard to the
perishable or hazardous nature of any goods, depreciation in the
value of the goods with the passage of time, constraints of storage
space for the goods or any other relevant considerations, by
notification in the Official Gazette, specify the goods or class of
goods which shall, as soon as may be after its seizure under sub-
section (1), be disposed of by the proper officer in such manner as
the Central Government may, from time to time, determine after
following the procedure hereinafter specified.
(1-B) Where any goods, being goods specified under sub-section
(1-A), have been seized by a proper officer under sub-section (1),
he shall prepare an inventory of such goods containing such details
relating to their description, quality, quantity, mark, numbers,
country of origin and other particulars as the proper officer may
consider relevant to the identity of the goods in any proceedings
1. Substituted by Act 23 of 2019, S. 74(i), for proviso. Prior to its substitution, proviso
read as under: – “Provided that where it is not practicable to seize any such goods, the
proper officer may serve on the owner of the goods an order that he shall not remove,
part with, or otherwise deal with the goods except with the previous permission of
such officer.”.
2. Inserted by Act 80 of 1985, S. 8 (w.e.f. 27-12-1985).
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
9/21
under this Act and shall make an application to a Magistrate for the
purpose of–
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of the Magistrate, photographs of such
goods, and certifying such photographs as true; or
(c) allowing to draw representative samples of such goods, in the
presence of the Magistrate, and certifying the correctness of any list
of samples so drawn.
(1-C) Where an application is made under sub-section (1-B), the
Magistrate shall, as soon as may be, allow the application.]
1
[(1-D) Where the goods seized under sub-section (1) is gold in any
form as notified under sub-section (1-A), then, the proper officer
shall, instead of making an application under sub-section (1-B) to
the Magistrate, make such application to the Commissioner
(Appeals) having jurisdiction, who shall, as soon as may be, allow
the application and thereafter, the proper officer shall dispose of
such goods in such manner as the Central Government may
determine.]
(2) Where any goods are seized under sub-section (1) and no notice
in respect thereof is given under clause (a) of section 124 within six
months of the seizure of the goods, the goods shall be returned to
the person from whose possession they were seized:
2
[Provided that the Principal Commissioner of Customs or
Commissioner of Customs may, for reasons to be recorded in
writing, extend such period to a further period not exceeding six
months and inform the person from whom such goods were seized
before the expiry of the period so specified:
Provided further that where any order for provisional release of the
seized goods has been passed under section 110-A, the specified
period of six months shall not apply.]
(3) The proper officer may seize any documents or things which, in
his opinion, will be useful for, or relevant to, any proceeding under
this Act.
(4) The person from whose custody any documents are seized under
sub-section (3) shall be entitled to make copies thereof or take
extracts therefrom in the presence of an officer of customs.
3
[(5) Where the proper officer, during any proceedings under the
Act, is of the opinion that for the purposes of protecting the interest
1. Inserted by Act 13 of 2021, S. 94.
2. Substituted by Act 13 of 2018, S. 92, for the proviso. Prior to its substitution, the provisos read
as under: – “Provided that the aforesaid period of six months may, on sufficient cause being
shown, be extended by the [Principal Commissioner of Customs or Commissioner of Customs]
for a period not exceeding six months.”.
3. Inserted by Act 29 of 2019, S. 74(ii).
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
10/21
of revenue or preventing smuggling, it is necessary so to do, he
may, with the approval of the Principal Commissioner of Customs
or Commissioner of Customs, by order in writing, provisionally
attach any bank account for a period not exceeding six months;
Provided that the Principal Commissioner of Customs or
Commissioner of Customs may, for reasons to be recorded in
writing extend such period to a further period not exceeding six
months and inform such extension of time to the person whose
bank account is provisionally attached, before the expiry of the
period so specified.]”
12. It has been held by this Court in several judicial
pronouncements that the ‘reason to believe’ as required under
Section 110 of the Act of 1962 is a sine quo non for effecting the
seizure and it must be recorded by the Seizing Officer. Since there
is no contest on this point that the seizure memo does not contain
any ‘reason to believe’, we have no hesitation in quashing the
seizure memo as contained in Annexure ‘P/6’ to the writ
application and Annexure ‘B’ to the counter affidavit filed on
behalf of respondent nos. 4, 5 and 6. The seizure memos are,
therefore, quashed as far as the same relates to the wheats of 35
bags containing 55 Kgs each.
13. This would take us to an another issue which come
up for consideration. It is evident that during pendency of the writ
application, the adjudication order has been passed. A copy of the
adjudication order (Annexure ‘P/7’ to the Interlocutory
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
11/21Application) has been brought on record which has been taken as
part and parcel of the writ application.
14. It is not disputed that on 12.12.2023, the petitioner
had put his appearance. He had earlier appeared on 03.10.2023 and
filed a petition in which he had stated that he was given only two
days for appearance in compliance of the summons which is
against the principles of natural justice. He informed the
Superintendent, Motihari, Customs (P) Division that he had
challenged the seizure memo before the Patna High Court in
CWJC No. 13176 of 2023 which is likely to be heard very soon,
therefore, any action may be taken only after outcome of the said
case. From the records, it is further evident that on 12.12.2023, the
petitioner once again submitted a letter to the Deputy
Commissioner, Customs (P), Division, Motihari in which he
informed that he had filed a writ application in the Patna High
Court challenging the competency of the Seizing Officer in his
case. He asserted that the seizure was effected by the A.S.I. of the
SSB on the spot which has been countersigned by the senior in his
camp office in forwarding the case records to the Customs.
15. This Court called upon the learned ASG and the
officers present in the Court to inform as to what order has been
passed by the Adjudicating Authority i.e. the Deputy
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
12/21Commissioner, Customs (P), Division, Motihari on the
letter/petition dated 12.12.2023 received by the Adjudicating
Officer in his office on 13.12.2023. There is no response to this
query and the respondents have not pointed out any order on the
record on the letter-petition of the petitioner.
16. All that is stated in the adjudication order is that
summon dated 27.09.2023 was issued to the owner of the vehicle
Smt. Rajkumari but she did not appear for further investigation on
the scheduled date. In the impugned order of
confiscation/adjudication, it is stated that the summons dated
29.09.2023 and 30.09.2023 were issued by the Superintendent,
Customs, (P) Division, Motihari under Section 108 of the said Act
to the Noticee No. 1 to appear before him on 03.10.2023 for
further investigation but he did not appear on the scheduled date.
Petitioner in this case is the Noticee No. 1. Whereafter, another
summon dated 30.09.2023 was also issued for appearance on
03.10.2023 but he did not appear on the scheduled date. However,
one letter was received from the noticee on 03rd October, that he
had challenged the legality of seizure before the Patna High Court.
17. In the impugned order, it is further recorded that
Noticee No. 1 did not appear in any of the personal hearings dated
09.11.2023, 06.12.2023 and 14.12.2023 and he did not submit
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
13/21anything in his defence. This Court, however, finds that this
observation of the Adjudicating Authority is not correct. It is
evident from the records that in his response letter-petition dated
12.12.2023 which was received in the office of the Adjudicating
Authority well within time on 13th December, 2023, the petitioner
had specifically stated that the seizure was effected by an A.S.I. of
SSB on the spot which was countersigned by the officer in Camp
Office in forwarding the case record to the Customs. This aspect of
the matter has not at all been considered by the Adjudicating
Authority.
18. This Court finds that the Adjudicating Authority has
recorded in the concluding paragraph that (i) as per Seizure Memo
and Panchnama prepared by SSB, the said goods/conveyance were
intercepted by the SSB at 06:10 Hrs on 21.04.2023 near Indo-
Nepal Border Pillar No. 415/26 in the Indian side; (ii) Voluntary
statement of the said Noticee No. 1 was recorded before the
competent authority of the SSB on the date of seizure under
Section 107 of the said Act wherein the said Noticee No. 1
interalia stated that while he was taking the said goods from India
to Nepal to sell in Nepal on 21.04.2023 through Border Pillar No.
415/26 without any valid documents, the patrolling party of SSB
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
14/21intercepted Mahindra Tractor with Trolly Reg. No. BR05G 5339
loaded with goods and also he was caught by them.
19. On perusal of the records, it is not clear as to who
recorded the statement of the petitioner under Section 107 of the
Act of 1962. Neither the name nor the designation of the said
competent authority has been disclosed on the record. The
averment in the impugned order that the Seizure Memo and
Panchnama were prepared by the SSB and the said
goods/conveyance were intercepted by the SSB is a vague
statement. The impugned order of confiscation nowhere states that
the Seizure Memo and Panchnama were prepared by a competent
authority in the rank of Inspector or Sub-inspector. It is further
found that the confiscation order was passed on 22.12.2023. The
computerised sheet has been placed before this Court to show the
day-to-day development which took place in the office of the
respondents. It appears that the dates were fixed in the office of the
Superintendent and the Deputy Assistant Commissioner and
Inspector till 27.09.2023. On 04.10.2023, Anand Kumar, the
Superintendent has recorded “DSCN is prepared and uploaded in
Draft Tab. Put up for kind perusal and approval please.” On the
said date, Ashish Ranjan Inspector wrote “Amended DSCN put for
kind perusal and approval please.” Thereafter, the date mentioned
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
15/21is 26.12.2023, 23.01.2024, 12.07.2024, 11.09.2024, 07.05.2025
and 20.06.2025. There is no mention of the date 22.12.2023 when
the impugned order of confiscation was passed.
20. Learned ASG submits that a copy of the impugned
order was sent to the petitioner vide speed post dated 03.01.2024,
however, in the I.A., the petitioner has stated that he was not
apprised and was not aware of any of the development regarding
adjudication order and auction proceeding. This Court further finds
that while responding to the statement of the petitioner, though it is
stated in paragraph ’12’ of the supplementary counter affidavit to
the I.A. that he had been given three opportunities vide letters
dated 08.11.2023, 28.11.2023 and 08.12.2023 for personal hearing
before deciding the case or passing the order-in-original but he did
not appear on any of the dates fixed for personal hearing, this
Court finds that in the counter affidavit to the I.A. filed on
09.05.2025, for the first time, it is stated that the copy of the
confiscation order was served on the petitioner vide speed post
dated 03.01.2024.
21. It is a matter of record that this writ application was
taken up for consideration before the learned Writ Court on
16.10.2023 while learned counsel for the appearing respondent
sought time for filing counter affidavit. It is evident that much
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
16/21before passing of the adjudication order, the writ application had
already been taken up for consideration and at the instance of the
respondents, it was adjourned for filing of the counter affidavit. In
all fairness, equity and justice, once the matter got sub-judice in
the High Court in the present writ application, the respondent
authorities were not required to act in haste. Any action taken in
haste is an indication of unfair play in action and it may be held to
be a malafide exercise of power. On 07.02.2024, when the writ
application was taken up for consideration, this Court was not
informed about passing of the order dated 22.12.2023 by the
Deputy Commissioner, Customs (P), Division, Motihari. In fact,
this Court has recorded the submissions of learned counsel for the
respondents in paragraph ‘3’ of its order dated 07.02.2024 which
reads as under:
“3. Learned counsel appearing on behalf of the respondents
has stated that as the petitioner is ready to provide adequate
securities/sureties and to abide by the reasonable terms and
conditions that may be imposed by the Deputy
Commissioner, Customs (P) Division, Motihari, he has no
objection if this Court directs the Deputy Commissioner,
Customs (P) Division, Motihari to release of vehicle
bearing Registration No. BR05G5339 and food grains in
favor of the petitioner subject to providing adequate
securities/sureties to the extent value of the food grains and
also subject to the petitioner abiding by other terms and
conditions that may be imposed by the Deputy
Commissioner, Customs (P) Division, Motihari.”
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
17/21
22. In view of the stand of the Respondents, this Court
issued the following directions:-
“4. Having regard to the above facts and circumstances of
the case and also the judgments of this Hon’ble Court
referred above, this Court directs the Deputy
Commissioner, Customs (P) Division, Motihari to release
of vehicle bearing Registration No. BR05G5339 and food
grains of the petitioner, which are subject matter of the
present writ petition, subject to the condition that the
petitioner shall make available adequate and sufficient
securities/sureties (not in cash or bank guarantee) to the
satisfaction of the Deputy Commissioner, Customs (P)
Division, Motihari to the extent of the value of the food
grains which may be assessed and that the petitioner
undertakes to abide by any other condition that may be
imposed for the purpose of future proceedings by the
Deputy Commissioner, Customs (P) Division, Motihari.
5. Learned counsel for the petitioner undertakes on
instruction from the petitioner that if the food grains are
released in his favor, in course of trial he will not raise any
question with respect to the seizure of the food grains and
no identification issue shall be raised in course of trial.
Further, the photographs of the jute bags containing the
rice which may be exhibited in course of trial and the
samples of the seized food grains if obtained in accordance
with law shall not be questioned by the petitioner and he
will not claim any benefit out of this order in the pending
proceedings and pursuant to the release of the food grains
in his favor.
6. Let the Deputy Commissioner, Customs (P) Division,
Motihari pass an appropriate order after valuation of the
food grains and other conditions to which the petitioner
would be required to abide by. Such orders be passed
within two weeks from the date of receipt/communication
of this order. The release of the vehicle and food grain shall
be subject to the final order likely to be passed by the
Court in the preset CWJC.
7. Post this matter on 27.03.2024 for filing counter
affidavit.”
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
18/21
23. At this stage only, the respondents have informed
this Court that the goods in question have been auction sold. In the
second supplementary counter affidavit, the respondents have
stated that options were provided to the owner of the goods to
redeem the seized goods and conveyance on payment of
redemption fine Rs.7,000/- and Rs.25,000/- respectively under
Section 125 of the Act of 1962. So far as the tractor is concerned,
it is stated that the said conveyance was released on deposit of
Rs.5,000/- penalty on 09/10.04.2024. But with regard to 35 bags of
wheat, it is stated that the goods have been e-auctioned vide No.
MSTC/PTN/Customs (Hqrs)Patna/298/Central Revenue
Buiding/23-24/45503 dated 01.02.2024. The respondents have not
disclosed the date of actual sale and delivery of wheats to the
auction purchase.
24. It is evident from the records that the respondents
themselves claimed to have dispatched the order of confiscation on
03.01.2024 but even before expiry of 30 days period from the date
of dispatch of the copy of the impugned order of confiscation, the
respondents held e-auction and sold the wheats for Rs.31,678/-.
25. At this stage, this Court would reproduce Section
125 of the Customs Act, 1962.
“125. Option to pay fine in lieu of confiscation.–(1)
Whenever confiscation of any goods is authorised by this
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
19/21Act, the officer adjudging it may, in the case of any
goods, the importation or exportation whereof is
prohibited under this Act or under any other law for the
time being in force, and shall, in the case of any other
2
goods, give to the owner of the goods [or, where such
owner is not known, the person from whose possession or
custody such goods have been seized,] an option to pay in
lieu of confiscation such fine as the said officer thinks fit:
3
[Provided that where the proceedings are deemed to be
concluded under the proviso to sub-section (2) of section 28 or
under clause (i) of sub-section (6) of that section in respect of
the goods which are not prohibited or restricted, 4[no such fine
shall be imposed]:
Provided further that], without prejudice to the provisions of
the proviso to sub-section (2) of section 115, such fine shall not
exceed the market price of the goods confiscated, less in the
case of imported goods the duty chargeable thereon.]
5
[(2) Where any fine in lieu of confiscation of goods is imposed
under sub-section (1), the owner of such goods or the person
referred to in sub-section (1), shall, in addition, be liable to any
duty and charges payable in respect of such goods.]
6
[(3) Where the fine imposed under sub-section (1) is not paid
within a period of one hundred and twenty days from the date
of option given thereunder, such option shall become void,
unless an appeal against such order is pending.
Explanation.–For removal of doubts, it is hereby declared that
in cases where an order under sub-section (1) has been passed
before the date on which the Finance Act, 2018 receives the
assent of the President and no appeal is pending against such
order as on that date, the option under said sub-section may be
exercised within a period of one hundred and twenty days from
the date on which such assent is received.]
2. Inserted by Act 80 of 1985, S. 9 (w.e.f. 27-12-1985).
3. Substituted by Act 13 of 2018, S. 95(i), for “Provided that”.
4. Substituted by Act 23 of 2019, S. 78, for “the provisions of this section shall not
apply”.
5. Substituted by Act 80 of 1985, S. 9, for sub-S. (2) (w.e.f. 27-12-1985).
6. Inserted by Act 13 of 1018, S. 95(ii).
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
20/21
26. It is evident on bare reading of sub-section (3) of
Section 125 of the Act of 1962 that where the fine imposed is not
paid within the period of one hundred and twenty days days from
the date of option given thereunder, such option shall become
void, unless an appeal against such order is pending.
27. In the present case, the sale of the seized goods
within a period of 29 days only from the date of dispatch of copy
of the order of adjudication to the petitioner is nothing but an
apparent violation of the sub-section (3) of Section 125 of the Act
of 1962 and by no canon of justice, it may be found in consonance
with the principles of natural justice. More than one ground are
available to hold the confiscation order bad in law.
28. This Court, is therefore, of the considered opinion
that the order of confiscation/adjudication dated 22.12.2023 was
passed by the Deputy Commissioner, Customs (P) Divison,
Motihari in hot haste during the pendency of the writ application
when the matter was adjourned for filing of the counter affidavit
and then even without waiting for the statutory period within
which the petitioner could have redeemed the goods, these were
subjected to sale. In view of these discussions, the impugned order
of confiscation/adjudication is held bad in law. It is quashed
accordingly.
Patna High Court CWJC No.13176 of 2023 dt.24-06-2025
21/21
29. This Court has though noticed that wheats have been
sold only for Rs. 31,678/-, but because this Court has found that
the sale was effected in hot haste and without following the
statutory provision of law that too during pendency of the writ
application when the case was adjourned at the instance of the
respondents, this Court would direct the respondents to pay the
total value of wheats being Rs. 46,200/- with interest at the rate of
6% from the date of seizure of the goods till the date of payment
within six weeks from the date of receipt/production of a copy of
this order. The respondents shall also pay within the same period,
a cost of litigation assessed at the rate of Rs.5,000/- to the
petitioner.
30. The writ application stands allowed.
(Rajeev Ranjan Prasad, J)
( Ashok Kumar Pandey, J)
avin/-
AFR/NAFR CAV DATE Uploading Date 01.07.2025 Transmission Date