1. This petition under Article 226 of the Constitution of India has been filed by Mohammad Haneef.
2. The petitioner's case is that on 1-6-1960 the Customs and Central Excise Officers posted at Lucknow recovered from the petitioner's rightful and legal possession certain general merchandise and stationery goods and seized them on the plea that they were of foreign origin and the provisions of Section 11 of the Customs Act had been violated. Annexure 1 is a true copy of the recovery memo prepared on the occasion. The petitioner further contends that no show cause notice in respect of the aforesaid seized goods was served upon the petitioner within the statutory period of six months as required by Section 124 of the Customs Act, 1962; whereupon on 12-12-1970 the petitioner made a written request to the Collector of Customs and Central Excise, Allahabad, opposite party No. 1. through a registered letter (Annexure 3) demanding return of the seized goods as the show cause notice had not been received by him. The petitioner then received a letter dated 17/22-12-1970 (Annexure 4) from opposite party No. 2, the Assistant Collector of Customs, giving him intimation of extension of the period for issue of show cause notice by three months beyond 30-11-1970, and on 16-3-1971 the petitioner received a show cause notice dated 10-3-1971 from the Collector of Customs and Central Excise, opposite party No. 1. requiring the petitioner to show cause within specified time why the seized goods should not be confiscated under Section 111 of the Customs Act, 1962 (copy Annexure 6). The petitioner challenges the validity of this show cause notice dated 10-3-1971 (Annexure 6) and prays for a writ of certiorari to quash the same. The petitioner challenges also validity of Annexure 4 by which the time-limit for show cause notice was extended and a subsequent order dated 5-4-1971 extending the period for show cause notice by another one month beyond 28-2-1971 (Annexure 9). The petitioner prays for certiorari for quashing the search and seizure proceedings also in respect of the goods listed in Annexure 1 and a mandamus directing opposite parties to return all the goods seized as mentioned in Annexure 1. There is no dispute on fact. The opposite parties, however, contend that the period for giving show cause notice was validly extended and the show cause notice served upon the petitioner after the extension was valid and good in law. It is further maintained that the opposite parties were not required by law to provide an opportunity of hearing to the petitioner before extending the period of show cause notice.
3. The only question which arises for determination in this petition is whether the period for giving show cause notice of confiscation under Section 124(a) of the Customs Act, 1962 could be extended by the Collector of Customs and Central Excise without giving an opportunity of hearing to the petitioner. The opposite parties maintain that such an opportunity need not have been given to the petitioner before extending the period for giving show cause notice. Learned counsel for the petitioner Sri K.N Misra maintains that no extension of the period for giving show cause notice could be made under law without giving an opportunity of hearing to the petitioner. I have heard Sri K.N Misra and Sri Umesh Chandra Srivastava, learned counsel for the parties, and I am of the opinion that the petitioner's contention that the period for giving show cause notice could not be extended without giving an opportunity of hearing to the petitioner (sic) (is correct—Ed.) The Supreme Court in the case of The Assistant Collector of Customs and Superintendent. Preventive Service Customs, Calcutta v. Charan Das Malhotra, ((1971) 1 SCC 697 : AIR 1972 SC 689) observed:
“The power under the proviso to Section 110(2) is quasi-judicial and at any rate one requiring a judicial approach. While the power of seizure under sub-section (1) of Section 110 can be exercised on basis of reasonable belief on the part of the concerned officer the power of extending the period to give notice under Section 124(1) is to be exercised only on ‘sufficient cause being shown’. The expression envisages at least some sort of inquiry on facts placed before the authority and determination by him of those facts. Extension order is not to be passed mechanically. The power under sub-section (1) cannot be equated with the power under the proviso to sub-section (2) of Section 110.”
4. They held that the Collector of Customs cannot extend the period for giving notice of confiscation under Section 124(a) without giving opportunity of hearing to the petitioner whose articles are seized as contraband. Following this decision a Bench of this Court in the case of Pratap Narain Agarwal v. Union of India, (1972 All LJ 963 : 1973 Tax LR 2168) held that the power under the proviso to Section 110(2) of the Customs Act cannot be exercised without affording an opportunity of being heard being given to the person from whose possession the goods are seized.
5. I, therefore, accept the petitioner's contention that the extension of the six months period of giving show cause notice by the Collector of Customs and Central Excise under the proviso to Section 110(2) of the Customs Act was invalid in law with the result that the subsequent show cause notice given to the petitioner was also rendered illegal. Consequently the goods recovered and seized from the possession of the petitioner and contained in Annexure 1 are liable to be returned to petitioner Mohammad Haneef. In the above circumstances the search and seizure proceedings must also be quashed.
6. I allow the petition and quash the show cause notice contained in Annexure 6 as well as the orders of which Annexures 4 and 9 of the petition are copies. The search and seizure proceedings with regard to the goods contained in Annexure 1 are also quashed. Let certiorari issue accordingly. The opposite parties shall be directed by a mandamus to return all the goods seized from the petitioner's possession and contained in Annexure 1 to him within three weeks of the passing this order. There shall be no order as to costs.
7. Petition allowed.