W.P.(C)/5082/2025 of ZINAT BEGUM Vs COMMISSIONER OF CUSTOMS

*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of decision: 29[th]May, 2025+W.P.(C) 5082/2025ZINAT BEGUM.....PetitionerThrough:Mr. Aditya Raj, Mr. Pratham Diwakarand Mr. Pravej Hasan, Advocates.Mr. Ashish Panday, Mr. Ajay Singh,Mr, Akshat Raghuvanshi, Advocates.

versus

COMMISSIONER OF CUSTOMS.....RespondentThrough:Ms. Anushree Narain, SSC with Mr.Ankit Kumar, Advocate.

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE RAJNEESH KUMAR GUPTA

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.

2.The present writ petition has been filed under Article 226 of theConstitution of India seeking release of the jewellery detained by the CustomsDepartment vide Detention Receipt dated 6th December, 2023.

3.The Petitioner is an Indian citizen. It is stated that the Petitioner wasreturning to India from Mecca, Saudi Arabia after performing religiouspilgrimage (“Umrah”) on 06[th]December, 2023. The Customs Departmentintercepted her upon her arrival at the Indira Gandhi International Airport,New Delhi. The Petitioner was wearing four gold bangles and one gold ringweighing 132 grams and 50 grams, respectively, (hereinafter “the detainedjewellery”) which were detained by the Customs Department.

4.It is the case of the Petitioner that she had personally visited the

Customs Department seeking status of the detained jewellery as also releaseof the same. However, the detained jewellery has not been released till date.It is also stated that no show cause notice (hereinafter “SCN”) has been issuedin this matter and no personal hearing was also granted.

5.Ms. Anushree Narain, ld. Sr. Standing Counsel for the CustomsDepartment submits that the Order-in-Original has been passed on 21[st]May,2024. copy of the same has been handed over by the ld. Counsel and thesame is taken on record.

6.Heard ld. Counsels for the parties. The Court has also perused thedocuments as also the Order-in-Original placed on record. perusal of thesaid order would show that the standard pre-printed waiver had been signedby the Petitioner, as recorded in the order. The relevant paragraphs of theorder-in-original are set out below:

“2. The passenger Ms Zinat Begum holding Indianpassport No. T0580294 (hereinafter referred as 'thePax') arrived from Saudi Arabia at the IGI AirportTerminal-3, New Delhi by flight 6E-64 dated 06.12.2023and opted for Green Channel. She was intercepted bythe Customs Officer after she had already crossed theGreen Channel and during her personal & baggagesearch "One yellow metal chain and 4 yellow metalbangles totally weighing 182 grams" were found anddetainedvideDetentionReceipt(DR)No.DR/INDEL4/06.12.2023/003254 dated 06.12.2023 withremark Green Channel violation.

3. The Pax tendered her statement dated 06.12.2023under Section 108 of the Customs Act, 1962 in which sheinteralia stated that she was intercepted by the CustomsOfficer after he had already crossed the Green Channeland during the DFMD the above said items One yellowmetal chain and four yellow metal bangles appearing to

be made of gold weighing 182 grams were recoveredfrom her, that the above mentioned recovered itemsbelongs to her, that he admitted the act of omission andcommission on her part; that she was well aware of thefact that there was Customs Duty on import of abovegoods, that she intentionally did not declare therecovered items; that she would be agreeing with thedescription and quantity assessed by the department andready to pay the Customs duty along with fine andpenalty as applicable. She further stated that she hadtendered her statement true and correct, without anyduress, pressure or threat.Further, she requested thatshe did not want Show Cause Notice and PersonalHearing and her case may be decided on merit.

4. The Pax submitted request letter dated 11.12.2023for Release of the detained goods. It is further interaliasubmitted that the she had arrived from Saudi Arabia byflight no. 6E-64 dated 06.12.2023 and opted for theGreen Channel but did not declare any dutiable itemwhich she brought in his baggage and hence they weredetained. It is further submitted that the detained goodsare meant for personal use and as such requested forRelease of the detained goods. It is also submitted thatthe Pax regrets her mistake of opting for Green Channeland requested for lenient view to be taken in thematter and that the case be decided on merit and assuch did not want any show cause notice and personalhearing in the matter. An oral SCN has been received.

Thedetainedgoodswerephysicallyexamined/appraised by the Jewellery Appraiser withKeratometer in the presence of the Pax on 11.12.2023.The Appraisement report of the Jewellery Appraiser isas under:-

(Value has been determined in accordance with Goldrate notification No 89/2023 – Customs (N.T.) dated30.11.2023 = 659 USD per 10 gm. Exchange ratenotification No. 84/2023 – Customs (N.T.) dated16.11.2023 = 84.10/-)

7.The order-in-original has finally directed absolute confiscation andpayment of penalty of Rs.1,00,000/-. The same is set out below:

ORDER

i)I deny the 'Free Allowance' if any, admissibleto the Pax Ms Zinat Begum for not declaring thedetained goods to the Proper Officer at Red Channelas well to the Customs Officer at Green Channel whointercepted her and recovered the detained goods fromher.

ii)I declare the passenger Ms Zinat Begum as an"ineligiblePassenger"forthepurposeoftheNotification No. 50/2017-Customs dated 30.06.2017(as amended) read with Baggage Rules, 2016 (asamended).

(iii)I order absolute confiscation of :-

(i) Four Gold bangles having average purity 997 withgross and net weight 132 grams having Assessablevalue Rs.7,84,369/-

(ii) One Gold chain having average purity 997 withgross and net weight 50 grams having Assessablevalue Rs.2,97,110/-

(iii)The total Assessable of all gold items is

Rs.10,81,479/-

recovered from the Pax Ms Zinat Begum and detainedvide DR No. DR/INDEL4/06.12.2023/003254 dated06.12.2023 under section 111(d), 111(1) and 111(m)of the Customs Act. 1962;

iii)I also impose penalty of Rs 1,00,000/-(Rupees One Lakh Only) on the Pax Ms Zinat Begumunder section 112 (a) and 112(b) of the Customs Act,1962.

8.It is noted that no Show Cause Notice has been issued in this case asthe Customs Department is relying on the standard pre-printed waiver thatwas obtained from the Petitioner. The validity of such pre-printed waiver ofSCN and personal hearing has been considered by this Court in variousmatters, including in Amit Kumar v. The Commissioner of Customs,2025:DHC:751-DB and Mr Makhinder Chopra vs Commissioner ofCustoms New Delhi, 2025:DHC:1162-DB. The operative portion of thejudgement in Amit Kumar (supra) is as under:

“16. perusal of Section 124 of the Act along with thealleged waiver which is relied upon would show that theoral SCN cannot be deemed to have been served in thismanner as is being alleged by the Department. If an oralSCN waiver has to be agreed to by the personconcerned, the same ought to be in the form of properdeclaration,consciouslysignedbythepersonconcerned. Even then, an opportunity of hearing oughtto be afforded, inasmuch as, the person concernedcannot be condemned unheard in these matters. Printedwaivers of this nature would fundamentally violaterights of persons who are affected. Natural justice is notmerely lip-service. It has to be given effect and complied

with in letter and spirit.

17. The three-pronged waiver which the form containsis not even decipherable or comprehensible to thecommon man. Apart from agreeing as per the said formthat the oral SCN has been served, the person affectedhas also waived right for personal hearing. Such aform in fact shocks the conscience of the Court, that tooin cases of the present nature where travellers/touristsare made to run from pillar to post for seeking releaseof detained goods.

19. This Court is of the opinion that the printed waiverof SCN and the printed statement made in the requestfor release of goods cannot be considered or deemed tobe an oral SCN, in compliance with Section 124. TheSCN in the present case is accordingly deemed to havenot been issued and thus the detention itself would becontrary to law. The order passed in original withoutissuance of SCN and without hearing the Petitioner, isnot sustainable in law. The Order-in-Original dated29th November, 2024 is accordingly set-aside”

9.Further, this Court in Makhinder Chopra (supra) had analysedSection 124 of the Customs Act, 1962 (hereinafter “the Act”) whileconsidering the issue of waiver of show cause notice and personal hearing.The Court while replying on the decision in Amit Kumar (supra) held asunder:

“23. As mentioned above, the Customs Department hasrelied upon the undertaking in standard form dated 17thJune, 2024 signed by the Petitioner, wherein the Petitionerhas waived of issuance of the show cause notice and personalhearing. It is admitted position that no show cause notice has

been issued to the Petitioner on the basis of the saidundertaking.

24. The issuance of show cause notice beforeconfiscation of goods by the Customs officials is coveredunder Section 124 of the Act, which reads as under: “

“124. Issue of show cause notice before confiscation ofgoods, etc.— No order confiscating any goods orimposing any penalty on any person shall be madeunder this Chapter unless the owner of the goods or suchperson—

(a) is given notice in writing with the prior approvalof the officer of Customs not below the rank of anAssistant Commissioner of Customs, informing him ofthe grounds on which it is proposed to confiscate thegoods or to impose penalty;

(b) is given an opportunity of making representationin writing within such reasonable time as may bespecifiedinthenoticeagainstthegroundsofconfiscation or imposition of penalty mentioned therein;and

(c) is given reasonable opportunity of being heard inthe matter:

Provided that the notice referred to in clause (a) and therepresentation referred to in clause (b) may, at therequest of the person concerned be oral.

Provided further that notwithstanding issue of noticeunder this section, the proper officer may issue asupplementary notice under such circumstances and insuch manner as may be prescribed.”

25.A perusal of the above Section would show that theprinciples of natural justice have to be followed by the

Customs Department before detention of the goods.-The Section provides threefold requirement:i) notice in writing informing the grounds ofconfiscation;

ii) An opportunity of making representation inwriting against the said grounds of confiscation;

iii) reasonable opportunity of personal hearing.

26. In terms of proviso to the said Section, the CustomsAuthority may issue an oral show cause notice to thetourist in lieu of written show cause notice at therequest of the said tourist.However, in the opinion ofthe Court the undertaking in standard form as reliedupon by the Customs Department waiving the issuanceof show cause notice and personal hearing would notsatisfy the requirements of Section 124 of the Act.

27. This Court recently in Amit Kumar v. TheCommissioner of Customs, 2025:DHC:751 DB wasconsidering similar facts wherein the Petitioner hadalso signed an undertaking waiving show cause noticeand personal hearing. The Court had analysed anddiscussed the validity of such undertaking vis-à-visSection 124 of the Act. [...]

28In view of the above observations, it is clear that theundertaking signed by the Petitioner in the presentcase cannot be sustained in law. Accordingly, theCustomsDepartmenthasfailedtosatisfytherequirements of Section 124 of the Act in the presentcase. Therefore, the detention of the Petitioner’s goldchain has to be set aside.

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34.Since, the Court has made clear that the practice of

making tourists sign undertaking in standard formwaiving the show cause notice and personal hearing iscontrary to the provisions of Section 124 of the Act,hereinafter, the Customs Department is directed todiscontinuethesaidpractice.TheCustomsDepartment is expected to follow the principles ofnaturaljusticeineachcasewheregoodsareconfiscated in terms of Section 124 of the Act.”

10.Thus, the law is well settled, that the Customs Department cannot relyon pre-printed waiver of show cause notice as the same would be contrary tothe requirement of Section 124 of the Act. In light of the above discussions, itis clear that the continued detention or seizure of goods by the CustomsDepartment would be untenable in law, where the show cause notice or thepersonal hearing have been waived via pre-printed waiver.

11.Accordingly, in the facts of this case, since no show cause notice hasbeen issued to the Petitioner due to pre-printed waiver, the detainedjewellery would be liable to be released to the Petitioner.

12.In view thereof, the impugned order-in-original is set aside to the effectthat it orders absolute confiscation. However, in the facts of this case, thePetitioner shall pay the penalty of Rs.1,00,000/- and 50% of thewarehousing/storage charges.

13.The Petitioner may collect the detained jewellery through anAuthorised Representative, in which case, the detained goods shall bereleased after receiving proper email from the Petitioner or some form ofcommunication that the Petitioner has no objection to the same being releasedto the concerned Authorised Representative.

14..Let the detained jewellery be released within period of four weeks.

15.Accordingly, the petition stands disposed of. Pending applications, ifany, are also disposed of.

PRATHIBA M. SINGHJUDGE

MAY 29, 2025v

RAJNEESH KUMAR GUPTAJUDGE