1. This petition under Article 226 of the Constitution of India seeks an appropriate writ, order or direction quashing the order of seizure in respect of the petitioner's goods made on May 13, 1969 and the show cause notice dated May 13, 1969 and the proceedings commenced by way of complaint dated May 3, 1969 pending in the court of Metropolitan Magistrate, New Delhi.

2. The facts mentioned by the petitioner in the writ petition are these :-

The petitioner is a citizen of India and holds passport No. I-306019. The petitioner had gone to Singapore. From Singapore the petitioner brought certain goods for taking the same to Kathmandu, Nepal. From Singapore the petitioner travelled by Cathay Pacific Airlines to Bangkok and from Bangkok the petitioner travelled by Japan Airlines and landed at Palam Airport, New Delhi on 12th May, 1969 at 10.05 p.m. The petitioner was holding a ticket for the further onward journey from New Delhi to Kathmandu (Nepal), and return. Before proceeding to Kathmandu, the petitioner desire to stop over at New Delhi for a few days for the purpose of meeting his friends and relatives at his native village at Tarn Taran (Distt. Amritsar). On arrival at Palam Airport the petitioner on entering the custom hall requested the Customs Officer on duty to keep his baggage containing the said goods in bonded custody with a request that the same be handed over to the petitioner on his onward journey to Kathmandu after a few days. The petitioner made a specific request for keeping the said goods in bond, but the Customs Officer insisted upon inspecting the said baggage. The petitioner told the Customs Officer that as the said goods were not to be taken across the customs barrier but were only required to be kept in bonded custody, the Customs officer could not inspect the same and no purpose would be served in inspecting the same. The request of the petitioner was wrongly not acceded to and inspite of the petitioner repeatedly requesting the Customs Officer not to harass the petitioner in this manner, the baggage of the petitioner was opened up and searched. Though the petitioner specifically requested for keeping the said baggage in bond, the Customs Officer on duty insisted on requiring the petitioner to file up a baggage declaration form. The petitioner explained that as he did not intend to clear the said goods across the Customs barrier, it would serve no purpose in filling the baggage declaration form. However, on insistence of the Customs Officer, the petitioner filled up the said Baggage Declaration Form and wrote on it in clear terms that the goods were not intended to be imported into India and that his request for bonding the same be granted.

3. The case further proceeds that inspite of oral request to keep the goods in bonded custody and an endorsement in terms of the said request in the Baggage Declaration Form, the Customs Officer still ignored the petitioner's request for keeping the same in bonded custody and illegally and without authority of law and in excess of his jurisdiction seized the said goods and made a 'panchnama' dated May 13, 1969 in respect of the same. The Customs Officer also recorded the statement of the petitioner in which statement the petitioner stated in clear terms that he intended to take the said goods to Kathmandu, Nepal and did not intend to import into India and that he had requested that the goods be kept in customs bond. The petitioner's signatures were taken on the 'Panchnama' as well on the said statement on an endorsement that the copy of the same supplied to the petitioner, though no copies were supplied to the petitioner.

4. The petitioner's goods were seized and the petitioner was detained in custody. The petitioner was taken to the court of learned Magistrate, Parliament Street, New Delhi on May 13, 1969 in a complaint case lodged in the court of the Magistrate. The petitioner was remanded by the order of the learned Magistrate and sent to jail. On May 21, 1969, the petitioner was granted bail and was released at night. While the petitioner was in custody, a show cause memorandum dated May 13, 1969 was handed over to the petitioner. In the show cause notice, the petitioner is notified that the goods seized are liable to confiscation under Section 111(d) and 111(1) of the Customs Act, 1962 (for short the Act) for importing the said goods without the cover of the necessary import license or a customs clearance permit. By letter dated May 22, 1969, the petitioner on the very next day of his release, requested the Collector of Customs to supply the petitioner with a copy of the 'Panchnama' of the goods seized, a copy of the statement of the petitioner recorded on May 13, 1969, and a copy of the Baggage Declaration Form signed by the petitioner. The petitioner also sent a telegram of May 24, 1969 and another telegram dated June 3, 1969 with a view to obtain the copies of the said documents. The documents were not supplied to the petitioner. The petitioner then filed the present writ petition on June 10, 1969. Rule nisi was issued on June 11, 1969 and interim stay was granted. The writ petition has matured for hearing now.

5. The writ petition came up for hearing before me on 13th February, 1981 when it was part heard and the hearing continued on 16th February, 1981. Arguments were addressed by Shri Ravinder Narain, the learned counsel for the petitioner that he made an endorsement on the declaration form and his statement was also recorded at the time of the alleged seizure. I considered it necessary to direct the counsel for the respondents to produce the original records and adjourned the case. Return to the rule is the original records and that was the reason which pursuaded me to direct the production of the original records. The records were not traceable and I adjourned the case twice. Today Shri H. P. Sharma, learned counsel for the respondent made a categorical statement that the original records are not traceable and they were miss-placed somewhere in the year 1977. I, therefore, proceed to determine the writ petition on the basis of the existing record.

6. In the counter affidavit, filed by the customs authorities the allegations are these :

On arrival at Palam Airport, the petitioner presented himself before the Customs Officer for clearance through customs. He was carrying in his hand a hand bag of black colour which he placed on the customs counter. Since his movements were found suspicious the Customs Officer enquired from him in the presence of two independent witnesses the purpose of his visit to India and whether he had anything to declare. He stated that he had come to stay with his relations for a week and that he had personal used clothes with him. He further stated that he had brought two more suit cases containing used clothes and personal effects. These two suit cases were also brought to the customs counter by the petitioner with the help of the loaders. The Customs Officer again asked him about the contents of the said suit cases. He reiterated that they contained nothing but used personal clothes. The Customs Officer then started examination of his hand bag and found two packets containing 4000 Hitachai Transister (parts) valued as Rs. 4000/- c.i.f. concealed underneath his clothes. Thereafter the two suit cases belonging to the petitioner were also examined as a result of which further goods were recovered as are mentioned in the 'Panchnama'. The affidavit further states that the goods brought by the petitioner were not intended to be taken to Nepal but were attempted to be smuggled to India by a deliberate non-declaration. There is also a denial of the allegation and it is stated that the petitioner never requested the Customs Officer to keep his baggage containing the said goods in bonded custody with request that the same be handed over to him on his onward journey to Kathmandu after few days.

7. The petitioner has approached this Court at the stage of show cause notice and thus there is no determination on the facts by the customs authorities. The case has, therefore, to proceed on the basis of allegations made in the writ petition and the counter affidavit and the documents placed on the record. Before going into facts, I would like to notice the legal background. The word 'import' for purposes of the Act is defined as bringing into India from a place outside India. Smuggling is defined as any act or omission which will render such goods liable to confiscation under Section 111. In different contexts, the expressions import and export have been construed by courts with reference to the customs frontiers of the Customs barriers. But of a question of import through an Aircraft, the question arises whether the moment the aircraft arrives in an international airport in the country the goods are imported. A Division Bench of this Court had considered this question in Union of India and another vs. Khalil Kecherim, 1970 Criminal Law Journal, 417 and held :

"Unless, therefore, the goods are brought into the country for the purpose of use, enjoyment, consumption, sale or distribution so that they are incorporated in and mixed up with the mass of the property in the country, they cannot be said to have been imported or brought into the country. That this is the meaning to be attached to the word "import" as used in the Customs Act is also clear from the explanation to clause (3) of the Tourist Baggage Rules which excludes only such merchandise from the term "personal effects" as is imported for commercial purposes. The object of Section 80 is to exclude any article from the purview of Sections 110 and 111 if a declaration is made under section 77 and the article is entrusted to the proper officer. If the article is so entrusted, there are no commercial purposes which can be achieved. In my view, therefore, there is no import within the meaning of the Customs Act in a case where the goods are entrusted under Section 80 and are not carried by the passenger beyond the customs barrier.".

8. In K. R. Ahmed Shah vs. Additional Collector of Customs, Madras and others, 1981 E.L.T. 153, Padmanabhan J. deduced the principles from the various decisions of the Court in these words :

"The principles that could be deduced from the above decisions can be summarised as follows :- (1) Goods can be said to be imported to the country only when they are incorporated in and mixed up with the mass of goods in the country. (2) It cannot be said that the moment an aircraft lands at an international airport in this country, the goods are imported and to hold otherwise would create inconvenience and confusion and would render the goods which are in the aircraft meant to be carried to other countries subject to the Customs laws of this country. (3) Once a passenger enters the Customs area and makes a declaration of what all he had brought and does not make any attempt to take the goods across the Customs barrier in violation of the customs law of this country, it cannot be said that he had imported or attempted to import any goods contrary to any prohibition imposed by and under the Act or any other law for the time being in force."

Thus it is clear that the import is not merely the bringing into but comprises something more. It is with the intention of incorporating and mixing of the goods imported with the mass of the property already beyond the customs barriers in the local area.

9. It is, therefore, necessary to go into the facts in this case. The petitioner says that at the time of the alleged seizure, the Customs authorities also seized certain documents, including the petitioner's passport and his ticket for onward journey from New Delhi to Kathmandu and return. In the counter-affidavit it is admitted that the search of the petitioner resulted in the recovery of some documents including baggage claim tags and air tickets including an air ticket for journey from Delhi to Kathmandu and back. This is a circumstance in favor of the petitioner that the goods may have been intended to be taken to Kathmandu (Nepal) on petitioner's onward journey. It is the normal practice at all international Airports including the Delhi Airport to leave the baggage in bond if the same is not to be imported in that country and it is kept by the Customs authorities in bonded custody and is handed over to the passenger on his onward journey on leaving the country. The petitioner says that the bonded warehouse custody was demanded of the goods which were later on seized by the Customs authorities. The counter affidavit states that if a request for bonding of the goods had been made in the first instance, the Customs Officer would have acceded to his request as it is the normal practice with customs at Palam Airport to keep the baggage in bond if the same is not to be imported in this country and if a true declaration in respect of the same is made under Section 77 of the Act. What is the correct inference to be drawn from the facts on the record is the next question. It is not denied that in normal circumstances a baggage declaration form is required to be filled. Section 77 of the Act does not provide for a written declaration but in common practice it is so. The petitioner says that he was given a baggage declaration form and was required to fill it. He further states that he had written on the said form that he desired to keep his baggage in bond for the purpose of taking the same for his further onward journey to Kathmandu which he intended to take in few days time. The Baggage Declaration Form is not produced by the respondents even though an opportunity was granted to them. The statement now made is that the Baggage Declaration Form, if executed, was in the file which is now missing. This is a circumstance which goes against the respondents that the Baggage Declaration Form, if produced would have gone against the case set up by the respondents. The petitioner further states that his statement was recorded on May 13, 1969 at the time of the alleged seizure. What is baffling to me is the stand of the respondents in the counter affidavit alleging that no such statement was recorded. I have never come across a case so far in which a seizure of the smuggled goods had been made and no statement had been recorded. It is not a case which is being set up by the petitioner about his version being contained in the Baggage Declaration Form and in his statement at the time of filing the writ petition, but there is also intrinsic evidence on the record. Firstly the counter affidavit of the respondents states that it was at the stage when the recoveries were being effected that the petitioner came forward with the plea that he Along with the goods was destined for Kathmandu. Then the petitioner was released from jail on bail on May 21, 1969. Before filing reply to the show cause notice, the petitioner by his letter dated May 22, 1969, makes the positive everment in that letter for the supply of the copy of the statement made on May 13, 1969 as well as a copy of the Baggage Declaration Form. He categorically states in that letter that he had written on the said form that he desired to keep his baggage in bond for the purpose of taking the same for his further onward journey to Kathmandu. If the statement dated May 13, 1969 or the Baggage Declaration Form are not forthcoming or are not being produced by the respondents, then the adverse inference against the respondents is fully justified. On this material on the record and in the absence of the material with the respondents, no prima facie case has been made out against the petitioner that there was any intention of smuggling the seized goods into this country.

10. With the result, the writ petitions succeeds and the impugned show cause notice as well as the prosecution is quashed. The seized goods will be handed over to the petitioner for purpose of exporting out of this country across the customs barrier as and when desired by the petitioner which he may claim after giving a notice of a fortnight to the respondents.

11. On facts and circumstances of the case, I make no orders as to costs.