The Bombay High Court in the case Kalpesh Ghevarchand Jain v. Union of India and Ors observed and has held that the Custom authorities do not have any power to seal the premises of a person who is allegedly involved in smuggling goods.
The division bench comprising of Justice Sunil B Shukre and Justice Kamal Khata in the wherein a writ plea was filed, the court held that there is no power available with the custom authorities to seal premises of any person, which being nothing but a form of immovable property.
The petitioner in the case was allegedly involved in gold smuggling wherein seeking de-sealing of his premises by the Customs authorities. It has also been prayed by him in the plea that the statement of him under section 108 of the Customs Act, 1962 be recorded in visible but not audible distance of his advocate.
Therefore, the prayer is being opposed by the Central Government and has contended that there being no material on record justifying the petitioner’s prayers.
The court stated that the request of petitioner of having his advocate present at visible but is not audible distance being harmless. It has also been noted by the court that the petitioner has an apprehension of assault and the same needs to be taken care of in the best possible manner.
Further, it has been held by the court that the Custom authorities does not have any power to seal premises i.e., immovable property of any person.
The court also noted that as stated under section 110 or section 121 of the Customs Act, only the goods or movable property can be confiscated and seized. Therefore, the Custom authorities have the power to confiscate the sale proceeds of goods if the authorities have any knowledge or reason to believe that the goods are smuggled goods.
Further, the court noted that the definition of goods under Section 2(22) of the Customs Act only includes movable property.
Adding to it, the court stated that the immovable property cannot be seized and confiscated but it can only be
attached and is sold to recover the lost to the government as stated under section 142(1)(c)(ii) of the Customs Act.
Accordingly, the court directed the Custom authorities to remove the seal affixed to the premises of petitioner.
