W.P.(C)/7385/2025 of MOHAMMAD HOSSEIN KARI Vs THE COMMISSIONER OF CUSTOMS OFFICE OF THE COMMISSIONER OF CUSTOMS GENERAL NEW CUSTOM HOUSE & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 7385/2025MOHAMMAD HOSSEIN KARI

.....Petitioner

Through:Mohammed Ather Ansari & Mr. SVijay Kant, Advs.

versus

THE COMMISSIONER OF CUSTOMS OFFICE OF THECOMMISSIONER OF CUSTOMS GENERAL NEW CUSTOMHOUSE & ORS......Respondent

.....Respondent

Through:Ms. Anushree Narain, SSC, with AnkitKumar Adv. (M: [REDACTED])

CORAM:

JUSTICE PRATHIBA M. SINGHJUSTICE RAJNEESH KUMAR GUPTAO R R

%27.05.20251.This hearing has been done through hybrid mode.

2.The present writ petition has been filed under Articles 226 and 227 ofthe Constitution of India, inter alia, seeking release of the gold jewellerydetained by the Customs Department vide Detention Receipt dated 19th April,2023.

3.The Petitioner is resident of Iran and is an OCI Card Holder bearingNo. A- 462782. It is the case of the Petitioner that he was travelling from Iranto India on 19th April, 2023.

4.The Petitioner was intercepted by the Customs Department upon hisarrival at the Indira Gandhi International Airport, New Delhi and one silvercoated gold bracelet and 2 gold rings weighing total of 77 grams were seized(hereinafter ‘the detained articles’).

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5.It is the case of the Petitioner that an application seeking release of thedetained articles was filed on 14th May, 2025. However, no show cause notice(hereinafter, ‘SCN’) was issued with respect to the detention and hence, thePetitioner has filed the present petition seeking release of detained articles.

6.It is also submitted by the ld. Counsel for the Petitioner that the detainedarticles, being worn by the Petitioner are the personal effects under theBaggage Rules, 2016 (hereinafter ‘the Rules’).

7.Ms. Narain, ld. Counsel, on instructions submits that the order-in-original was passed on 29[th]February, 2024, however, ld. Counsel for thePetitioner submits that the same was not served upon the Petitioner. Let acopy be handed over to ld. Counsel for the Petitioner today.

8.A perusal of the order-in-original dated 29[th]February, 2024 wouldshow that the Petitioner had given detailed representation and had alsosought release of the detained articles. The order-in-original records as under:

“4. The Pax Mr. Mohammad Hossein (Pax) submitted aletter on 25.04.2023 for Re-export of Goods stating thathe had arrived from Iran to IGI Airport Terminal-3,New Delhi by the flight W5071 Dated 19.04.2023 andbrought above said detained goods. he further submittedthat he regretted his mistake of opting for green channeland also requested for lenient view in the matter. And heis ready to pay the fine and penalty, if any, for the sameafter taking lenient view as the recovered detainedgoods were meant for his personal use. he also statedthat he did not want any show cause notice and personalhearing in the matter and requested for order for re-export.”

9.From the above, it is clear that the Petitioner was made to sign astandard pre-prepared waiver of SCN and personal hearing. Further, the

order-in-original also records that the Petitioner also agreed for re-export ofthe detained articles.

10.This Court, in various cases has decided upon the issue of standardwaiver of SCN. In the cases of Mr Makhinder Chopra vs. Commissioner ofCustoms, New Delhi, 2025:DHC-1162-DB and Amit Kumar v. TheCommissioner of Customs, 2025:DHC:751-DB, this Court has discussedvarious issues arising in such cases where the goods have been detained froma tourist by the Customs Department, including the issue of personal jewellerybeing part of personal effects under the Baggage Rules, 2016 and waiver ofSCN and personal hearing by way of preprinted waiver form. The relevantextracts of the said decisions are as under:

“Mr Makhinder Chopra vs. Commissioner of Customs,New Delhi, 2025:DHC-1162-DB

34.Since, the Court has made clear thatthepractice of making tourists sign undertaking in astandard form waiving the show cause notice andpersonal hearing is contrary to the provisions ofSection 124 of the Act,hereinafter, the CustomsDepartment is directed to discontinue the saidpractice. The Customs Department is expected tofollow the principles of natural justice in each casewhere goods are confiscated in terms of Section 124of the Act.”

Amit Kumar v. The Commissioner of Customs,2025:DHC:751-DB

“19.This Court is of the opinion that the printedwaiver of SCN and the printed statement made in therequest for release of goods cannot be considered ordeemed to be an oral SCN, in compliance withSection 124.The SCN in the present case is

accordingly deemed to have not been issued and thusthe detention itself would be contrary to law. Theorder passed in original without issuance of SCN andwithout hearing the Petitioner, is not sustainable inlaw. The Order-in-Original dated 29th November,2024 is accordingly set-aside”

11.In terms of Rule 2(vi) read with Rule 3 of the Rules, the Petitionerwould be permitted clearance of articles, free of duty in their bona fidebaggage, including used personal effects. The relevant provisions of the Rulesare extracted hereunder:

“2(vi) “Personal effects” means things required forsatisfying daily necessities but does not include jewellery.

3. Passenger arriving from countries other than Nepal,Bhutan or Myanmar:- An Indian resident or foreignerresiding in India or tourist of Indian origin, not being aninfant arriving from any country other than Nepal, Bhutanor Myanmar, shall be allowed clearance free of dutyarticles 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 onthe person or in the accompanied baggage of thepassenger:

Provided that tourist of foreign origin, not being aninfant, shall be allowed clearance free of duty articles inhis bona fide baggage, that is to say, (a) used personaleffects and travel souvenirs; and (b) articles other thanthose mentioned in Annexure- I, up to the value of fifteenthousand rupees if these are carried on the person or inthe 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 passenger underthis rule shall not be allowed to pool with the freeallowance of any other passenger.

5. Jewellery.- passenger residing abroad for more thanone year, or return to India, shall be allowed clearancefree of duty in his bona fide baggage of jewellery upto aweight, of twenty grams with value cap of fifty thousandsrupees if brought by gentleman passenger, or fortygrams with value cap of one lakh rupees if brought by alady passenger.

ANNEXURE–I(See Rules 3, 4 and 6)

1. Fire arms.

2. Cartridges of fire arms exceeding 50.

3. Cigarettes exceeding 100 sticks or cigars exceeding 25or tobacco exceeding 125 gms.or tobacco exceeding 125 gms.

4. Alcoholic liquor or wines in excess of two litres.

5. Gold or silver in any form other than ornaments.

6. Flat Panel (Liquid Crystal Display/Light-EmittingDiode/Plasma) television.”

12.The issue whether gold jewellery worn by passenger would fall withinthe ambit of personal effects under the Rules, has now been settled by variousdecisions of the Supreme Court as also this Court. The Supreme Court in theDirectorate of Revenue Intelligence and Ors. v. Pushpa Lekhumal Tolani,(2017) 16 SCC 93, while considering the relevant provisions of the CustomsAct, 1962 (hereinafter “the Act”) read with the Baggage Rules, 1998, thatwere in force during the relevant period, held that it is not permissible to

W.P.(C) 7385/2025

completely exclude jewellery from the ambit of ‘personal effects’. Therelevant paragraphs of the said order read as under:

“13. Insofar as the question of violation of the provisionsof the Act is concerned, we are of the opinion that therespondent herein did not violate the provisions of Section77 of the Act since the necessary declaration was made bythe respondent while passing through the green channel.Such declarations are deemed to be implicit and devisedwith view to facilitate expeditious and smooth clearanceof the passenger. Further, as per the InternationalConvention on the Simplification and Harmonisation ofCustoms Procedures (Kyoto 18-5-1973), passengergoing through the green channel is itself declaration thathe has no dutiable or prohibited articles.Further, aharmonious reading of Rule 7 of the Baggage Rules,1998 read with Appendix (2) (quoted above), therespondent was not carrying any dutiable goods becausethe goods were the bona fide jewellery of the respondentfor her personal use and was intended to be taken out of

India. Also, with regard to the proximity of purchase ofjewellery, all the jewellery was not purchased few daysbefore the departure of the respondent from UK, largenumber of items had been in use for long period. It didnot make any difference whether the jewellery is new orused. There is also no relevance of the argument that sinceall the jewellery is to be taken out of India, it was,therefore, deliberately brought to India for taking it toSingapore. Foreign tourists are allowed to bring intoIndia jewellery even of substantial value provided it ismeant to be taken out of India with them and it is aprerequisite at the time of making endorsements on thepassport. Therefore, bringing jewellery into India fortaking it out with the passenger is permissible and is notliable to any import duty.

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15. […] Also, from the present facts and circumstances ofthe case, it cannot be inferred that the jewellery was meantfor import into India on the basis of return ticket whichwas found to be in the possession of the respondent.Moreover, we cannot ignore the contention of therespondent that her parents at the relevant time were inIndonesia and she had plans of proceeding to Indonesia.Some of the jewellery items purchased by the respondentwere for her personal use and some were intended to beleft with her parents in Indonesia. The High Court hasrightly held that when she brought jewellery of hugeamount into the country, the respondent did not seem tohave the intention to smuggle the jewellery into Indiaand to sell it off. Even on the examination of the jewelleryfor costing purposes, it has come out to be of Rs 25 lakhsand not Rs 1.27 crores as per DRI.The High Court wasright in holding that it is not the intention of the Boardto verify the newness of every product which travellerbrings with him as his personal effect. It is quitereasonable that traveller may make purchases of hispersonal effects before embarking on tour to India. Itcould be of any personal effect including jewellery.Therefore, its newness is of no consequence. Theexpression “new goods” in their original packing has tobe understood in pragmatic way.”

13.In Saba Simran v. Union of India & Ors., 2024:DHC:9155-DB, theDivision Bench of this Court was seized with the issue of deciding the validityof the seizure of gold jewellery by the Customs Department from an Indiantourist. The relevant paragraphs of the said judgement are as under:

“15. The expression ‘jewellery’ as it appears in Rule 2(vi)would thus have to be construed as inclusive of articlesnewly acquired as opposed to used personal articles ofjewellery which may have been borne on the person whileexiting the country or carried in its baggage.Thus,personal jewellery which is not found to have been

acquired on an overseas trip and was always usedpersonal effect of the passenger would not be subject tothe monetary prescriptions incorporated in Rules 3 and

4 of the 2016 Rules.

16. This clearly appeals to reason bearing in mind theunderstanding of the respondents themselves and whichwas explained and highlighted in the clarificatoryCircular referred to above. That Circular had come to beissued at time when the Appendices to the 1998 Ruleshademployedthephrase“usedpersonaleffects,excluding jewellery”.The clarification is thus liable to beappreciated in the aforesaid light and the statutoryposition as enunciated by the respondents themselvesrequiring the customs officers to bear distinctionbetween “personal jewellery” and the word “jewellery”when used on its own and as it appears in the Appendices.This position, in our considered opinion, would continueto endure and remain unimpacted by the provisions”contained in the 2016 Rules.

14.The above mentioned decision of the Division Bench of this Court waschallenged before the Supreme Court in SLP(C) No. 011281 / 2025 titledUnion of India & Ors. v. Saba Simran. The Supreme Court, while dismissingthe said challenge, held as under:

“ 1. Delay condoned.

2. Having heard the learned counsel appearing for thepetitioners and having gone through the materials onrecord, we see no reason to interfere with the impugnedorder passed by the High Court.

3. The Special Leave Petition is, accordingly, dismissed.

4. Pending application(s), if any, stands disposed of.”

15.Further, this Court in Mr Makhinder Chopra vs. Commissioner ofCustoms, New Delhi, 2025:DHC-1162-DB has held as under:

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“17.A conspectus of the above decisions andprovisions would lead to the conclusion thatjewellerythat is bona fide in personal use by the tourist wouldnot be excluded from the ambit of personal effectsas defined under the Baggage Rules.Further, theDepartment is required to make distinction between‘jewellery’and‘personaljewellery’whileconsidering seizure of items for being in violation ofthe Baggage Rules.

16.In view of the above and considering the facts of the case, it is clearthat the detained jewellery are the personal effects of the Petitioner.

17.The detained jewellery being personal effects of the Petitioner, and noshow cause notice having been issued, the detention of the same itself wouldbe contrary to law. Accordingly, the detained jewellery would be liable to bereleased on this ground itself.

18.In any event, the Petitioner being an Iranian National is willing to re-export the detained articles. In view of the above discussion, the detention ofthe Petitioner’s jewellery is accordingly set aside.

19.The Petitioner may collect the detained jewellery in person or throughan Authorised 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.

20.Let the detained jewellery be released within period of four weekssubject to the condition of re-export.

21.In the fact of this case, it is made clear that no storage charges shall beinsisted upon by the Central Warehousing Corporation for release of thedetained jewellery to the Petitioner.

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22.Accordingly, the writ petition is disposed of in above terms. All thepending applications, if any, are also disposed of.

PRATHIBA M. SINGH, J.

MAY 27, 2025dj/ss

RAJNEESH KUMAR GUPTA, J.

W.P.(C) 7385/2025

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