Calcutta High Court
Shuvam Chatterjee vs Union Of India And Anr on 24 July, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
WPO NO.378 OF 2025
WPO NO.436 OF 2025
SHUVAM CHATTERJEE
VERSUS
UNION OF INDIA AND ANR.
For the petitioner : Ms. Micky Chowdhury, Adv.
Mr. B. M. Pal, Adv.
For the respondent no.2 : Mr. Uday Shankar Bhattacharyya, Adv.
Mr. Kaustav K. Maiti, Adv.
Heard on : 24.07.2025
Judgment on : 24th July, 2025.
RAJA BASU CHOWDHURY, J (ORAL):
1. The petitioner questioning the action of the adjudicating authority in
connection with hearing of a show cause notice issued under Section 124
of the Customs Act, 1962 (hereinafter referred to as “the said Act”), in not
providing opportunity to the petitioner to cross-examine certain witnesses,
the writ petition being WPO 378/2025 has been filed.
2. Since during pendency of the writ petition, an adjudication order had been
passed on 29th /30th May, 2025, the writ petition being WPO 436/2025
has been filed. By consent of the parties, both the writ petitions are taken
up together and dealt with by this common order.
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3. Though, the petitioner was a custom house agent, however, since his
license was under suspension at the relevant point of time, the petitioner
had brokered a deal with Mr. Sudipta Bose of M/s. Bose Enterprise, a
customs house broker for generating Customs Transit Declaration for
transhipment of Nepal bound Container on behalf of Nepalese importer
namely M/s. Dolphin Trade and Suppliers Pvt. Ltd. And M/s. Kenal Nepal
Pvt. Ltd., both business houses situated at Nepal.
4. On the basis of specific intelligence inputs, the two containers declared as
containing goods for transhipment to Nepal were interdicted by the
Directorate of Revenue Intelligence, Kolkata (hereinafter referred to as
“DRI”) and on examination, the containers were found to contain a small
amount of maize, (declared item) as cover cargo towards the front of the
container and the rest of the container was found to be loaded with betel
nuts. The details of the goods in both the containers was found as under:
Container No Weight of Maize Seeds Weight of Betel Nuts
(KG) (Cover Cargo) (Kg)
SEKU5783875 (40′) 2800 24820
ZCSU8651307 (40′) 3060 24520
5. After examination, the containers were sealed and the goods were seized
under Section 110 of the said Act on the reasonable belief that the goods
are liable for confiscation under Section 111 of the said Act. Statements of
Customs House Broker and others were obtained including that of the
petitioner. Later the petitioner was issued a show cause under Section 124
of the said Act on 4th April, 2024. The petitioner had duly responded to the
same. At that stage, the petitioner did not seek for cross-examination of
any of the other co-noticees. Subsequently, on 21st October, 2024 the
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petitioner by a request letter sought for permission to cross-examine the
co-noticees and requested to keep the hearing in abeyance.
6. The petitioner never participated in the proceeding. Following the above,
the order-in-original was passed on 29th/30th May, 2025.
7. Ms. Chowdhury, learned Advocate appearing in support of the aforesaid
writ petitions has drawn attention of this Court to the relevant documents,
inter alia, including the show cause notice, the statement of the petitioner,
the response filed by the petitioner to the show cause notice and the order-
in-original. She would submit that, the adjudicating officer in the instant
case by not providing the petitioner with the opportunity to cross-examine
the other two co-noticees had violated the principles of natural justice
which has caused immense prejudice to the petitioner. On such ground,
the order cannot be sustainable. Independent of the above, she would
submit that an entirely unreasoned order has been passed by the
adjudicating authority. There is no finding against the petitioner that the
petitioner had knowingly been involved in mis-declaration of the goods and
consequentially could be held to be an abettor within the meaning of
Section 112(a) of the said Act. According to her, the order impugned is
perverse and the same should be set aside. In support of her contention
that for a case of abetment under Section 112(a) of the said Act to
succeed, it is necessary to hold the petitioner of not only being involved
but also to demonstrate that the petitioner had knowingly been involved
with the mis-declaration, she has placed reliance on a judgment of the
Hon’ble High Court at Delhi in the case of Rajeev Khatri v.
Commissioner of Customs (Export), reported in 2023 : DHC : 4428-DB
and an unreported judgment of this Court dated 26th April, 2024 presided
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over by the Hon’ble Chief Justice T. S. Sivagnanam, in the case of Shri
Ajay Kumar Singh v. Commissioner of Customs (Port) & Anr. in
CUSTA/25/2024. According to her, since the order impugned is perverse
and unreasoned, the same cannot be sustained and the matter should be
remanded back.
8. Mr. Bhattacharyya, learned Advocate appears for the respondents. He has
also taken me through the details of the proceeding. He has demonstrated
that the petitioner was actively involved in the process of mediation with
Mr. Sudipta Bose of M/s. Bose Enterprise. He has also placed the relevant
findings of the adjudicating authority where the involvement of the
petitioner has been noted. According to him, no interference is called for.
9. Having heard the learned Advocates appearing for the respective parties, I
note that ordinarily challenge to an adjudicating order is not maintainable
in a writ petition in exercise of the extra-ordinary writ jurisdiction of this
Court. The petitioner, however, seeks to invalidate the order on the ground
of procedural irregularity that is, on the failure on the part of the
adjucating authority to afford the petitioner with an opportunity to cross-
examine the co-noticees and the failure on the part of the adjudicating
authority to make out a case within the meaning of Section 112(a) of the
said Act against the petitioner. Having regard thereto, I have examined the
records and I find that the petitioner had duly responded to the show
cause notice by response letter dated 2nd May, 2024. The request for cross-
examination was made 5 months thereafter, by a communication in
writing dated 21st October, 2024. No reason as to why the petitioner
intended to cross-examine the co-noticees had been disclosed. The
petitioner had not participated in the proceeding apart from filing the
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response and issuing the letters. Having regard thereto, I find that the
authorities did not commit any irregularity in refusing the petitioner to
cross-examine the co-noticees. In fact, the adjudicating authority vide its
order dated 29th/30th May 2024 had categorically noted that the petitioner
had made a request for cross-examination without giving any suitable
reason as to why he required such cross-examination, and had
accordingly refused the same. I also notice that repeated opportunity of
personal hearing was afforded to the petitioner. First of such opportunity
of personal hearing was afforded on 29th October 2024, second
opportunity of personal hearing was afforded on 19th November 2024,
third opportunity was afforded on 20th January 2025 and the fourth
opportunity of personal hearing was afforded on 19 th May 2025. But on
none of the aforesaid occasions the petitioner chose to appear. In fact, the
petitioner did not participate in the proceeding. Having regard thereto, as
is apparent from the above, there has been no failure of justice on the
ground of violation of principle of natural justice.
10. On the issue of implicating and holding the petitioner liable under section
112(a) of the said Act, I notice that section 112(a) of the said Act, inter alia,
proceeds as under:
“112. Penalty for improper importation of goods, etc.–Any
person–
(a) who, in relation to any goods, does or omits to do any act
which act or omission would render such goods liable to
confiscation under Section 111, or abets the doing or omission
of such an act, or
(b) who acquires possession of or is in any way concerned in
carrying, removing, depositing, harbouring, keeping,
6concealing, selling or purchasing, or in any other manner
dealing with any goods which he knows or has reason to
believe are liable to confiscation under Section 111,shall be liable–
(i) in the case of goods in respect of which any prohibition is in
force under this Act or any other law for the time being in force,
to a penalty not exceeding [* * *] the value of the goods or [five]
thousand rupees, whichever is the greater;
[(ii) in the case of dutiable goods, other than prohibited goods,
subject to the provisions of Section 114-A, to a penalty not
exceeding ten per cent of the duty sought to be evaded or five
thousand rupees, whichever is higher:
Provided that where such duty as determined under sub-
section (8) of Section 28 and the interest payable thereon
under Section 28-AA is paid within thirty days from the date of
communication of the order of the proper officer determining
such duty, the amount of penalty liable to be paid by such
person under this section shall be twenty-five per cent of the
penalty so determined;][(iii) in the case of goods in respect of which the value stated in
the entry made under this Act or in the case of baggage, in the
declaration made under Section 77 (in either case hereafter in
this section referred to as the declared value) is higher than
the value thereof, to a penalty not exceeding [* * *] the
difference between the declared value and the value thereof
or [five] thousand rupees, whichever is the greater;
(iv) in the case of goods falling both under clauses (i) and (iii),
to a penalty not exceeding [* * *] the value of the goods or [* * *]
the difference between the declared value and the value
thereof or [five] thousand rupees, whichever is the highest;
(v) in the case of goods falling both under clauses (ii) and (iii),
to a penalty not exceeding [* * *] the duty sought to be evaded
on such goods or [* * *] the difference between the declared
7value and the value thereof or [five] thousand rupees,
whichever is the highest.]”
11. It is clear from the aforesaid provision that there has to be an act of
omission in relation to the goods which would render the goods liable for
confiscation under section 111 of the said Act or in abetting any act in
relation thereto. I find that the Hon’ble Delhi High Court had the occasion
to consider the above matter and in paragraph 38 has observed as follows:
“38. In Shree Ram v. State of U.P.: 1975 3 SCC 495, the
Supreme Court held as under:
“6……………Section 107 of the Penal Code which defines
abetment provides to the extent material that a person abets
the doing of a thing who “Intentionally aids, by any act or
illegal omission, the doing of that thing”. Explanation 2 to the
section says that “whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the commission
thereof, is said to aid the doing of that act”. Thus, in order to
constitute abetment, the abettor must be shown to have
“intentionally” aided the commission of the crime. Mere proof
that the crime charged could not have been committed without
the interposition of the alleged abettor is not enough
compliance with the requirements of Section 107. A person
may, for example, invite another casually or for a friendly
purpose and that may facilitate the murder of the invitee. But
unless the invitation was extended with intent to facilitate the
commission of the murder, the person inviting cannot be said
to have abetted the murder. It is not enough that an act on the
part of the alleged abettor happens to facilitate the commission
of the crime. Intentional aiding and therefore active complicity
is the gist of the offence of abetment under the third para of
Section 107.””
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12. I also find that such observation is based on the provision of section 3(1) of
the General Clauses Act, 1897 which, inter alia, provides that the
expression ‘abet’ would have the same meaning as in the Indian Penal
Code 1860. Provision of section 107 of the Indian Penal Code had been
taken into consideration by the Hon’ble Delhi Court and based thereon the
aforesaid observation had been made. The judgment delivered in the case
of Shree Ram v. State of U. P., reported in (1975) 3 SCC 495 and the
judgment delivered in the case of Amritlakshmi Machine Works v. The
Commissioner of Customs (Import), Mumbai, reported in 2016 (335)
E.L.T. 225 (Bom.) were also taken note of, and proceeding on such
premise it had held that mere facilitation without knowledge would not
amount to abetting an offence. Admittedly, in this case I find that
although, diverse materials have been considered, there appears to be no
finding by the adjudicating officer so as to implicate the petitioner of
having involved with the notice and knowledge that the goods in question
had been mis-declared. It is true that the adjudicating authority had
returned the finding that the petitioner played an instrumental role in
abetting smuggling. However, mere use of the word abetment or abetting
smuggling, in my view, would not suffice unless a clear finding implicating
the petitioner to have committed the act of omission or commission with
the knowledge of the goods being mis-declared is rendered. Unless the
petitioner is implicated as having knowledge of the misdeclaration, the
above section cannot apply.
13. Having regard thereto, I am of the view that the above direction of holding
the petitioner liable under section 112(a) of the said Act is perverse and is
not sustainable. Accordingly the order to that extent is interfered with.
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However, noting the conduct of the petitioner and the prayer made by Ms.
Chowdhury, learned advocate representing the petitioner, I remand the
matter back to the adjudicating authority for a decision to be made by the
adjudicating authority afresh in so far as the petitioner is concerned on
the materials already available on record. The consequential penalty levied
on the petitioner stands set aside. The adjudicating authority is directed to
hear out the petitioner afresh and pass an appropriate order in accordance
with law.
14. The writ petition is accordingly disposed of.
15. There shall be no order as to costs.
16. Urgent photostat certified copy of this order, if applied for, be made
available to the parties upon compliance of all necessary formalities.
(RAJA BASU CHOWDHURY, J.)
AKG/R. Bose