IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

Mohammad Rustam Khan …Petitioner

Versus

The Commissioner (Appeals), IGI Airport ...Respondent

WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA SEEKING ISSUANCE OF
WRIT OF MANDAMUS OR ANY OTHER APPOROPRIATE
WRIT THEREBY DIRECTING THE RESPONDENT TO
DECIDE THE MATTER IN A STIPULATED TIME PERIOD
AS THIS COURT FINDS APPROPRIATE.

MOST RESPECTFULLY SHOWETH:

1. That the Pax i.e. Mr Mohmmad Rustam arrived to IGI Airport

Terminal-3, New Delhi by flight No. A1 926 where he was
intercepted by a custom officer at the exit gate and diverted
for detailed examination of his baggage and one yellow metal
bar appearing of gold weighing 250 gm was found. The said
bar was detained for appraisement and clearance against
which a detention receipt was provided to the pax.
Annexure-A.
2. That the said bar was not apprised by the Jewellery
Appraiser because the pox vide his letter dated 30.05.2017
admitted that the same is 24kt purity. The value of the bar
weighing 250gms comes to Rs.6,5300/- by taking the value
of gold at 400 USD per 10gms at the conversion rate of
Rs.65.30 against 1USD as per notification No.47/2017-
 customs(N.T.)dated 15.05.2017 and Notification No.49/2017
Customs(N.T.) dated 18.05.2017.
3. That the pox works in Saudi Arabia as a labor/painter, hence
he gave power of attorney dated 31.07.2017 to the Petitioner
in order to pursue this matter for release of gold. Annexure-
B and further the Application for Amendment in Memo of
Parties has been given dated 27.08.2018 Annexure-H.
4. That the Respondent is Additional Custom Commissioner,
IGIA Airport, New Delhi and while performing the duty and
giving any order in pursuance of the duty he should keep the
concerned provisions in his mind and his decision should not
violate any of the natural justice principles.
5. The Petitioner is aggrieved by the order Cano.
VIII/WH/242/DR/2016-17 given by the Respondent dated
05/12/2017 imposing a penalty of Rs 1,20,000/-under
Section 111 and section 112 of the customs Act. Annexure-
C.
6. That the pox is a poor Indian National working in Saudi
Arabia as a painter and holds an Indian Passport bearing
Passport No. K6635077. The pox departed from India on
10.03.2015 and came after more than 11 months on
18.05.2017 and hence the pox fulfill the condition of the
Notification No. 12/2012 dated 17.03.2012 as amended and
therefore eligible to import the gold at concessional rate of
duty i.e. 10%. Appendix-1.
7. That there is no question of smuggling and illegality of goods
as the pox purchased the gold bar for his personal use and
the pox is a legitimate owner of the said goods and holds bill
no. 109209, purchased it from shop named Kanz Al Saharaa
For Gold and Jewelry, Riyadh. Annexure -J.
8. That the pax is said to have approached the office of the
Commissioner of Customs, IGI Airport, Terminal-3, New
Delhi on 30.05.1017. wherein he admitted that the bar
belongs to him and said that the said goods may be released
to him as he is ready to pay the custom duty, fine and
 penalty. It is also said that the pax waived his right to have
Show Cause notice and personal hearing in the instant
matter but this is because the authorities had induced the
pax about the release of goods after waiver of SCN and
Personal Hearing. The aspect of free will has been affected by
such inducements while giving statements to the authorities.
9. That the Principles of Natural Justice i.e. right to have a
show cause notice and personal hearing, has not been
provided by the authorities as the Show Cause Notice
mentioned under Section 124 of the Customs Act was not
served to the pax. Show Cause Notice (SCN) is the starting
point of every proceeding which lays down the entire
framework for the proceedings against the party and should
be served at the very first phase of legal proceedings with
utmost care. Issuance of SCN is a statutory requirement and
it is a basic document for settlement of any dispute. A SCN
offers the noticee an opportunity to submit his oral or written
submissions before the Adjudicating Authority on the
charges alleged in SCN.
10. That the impugned order dated 05.12.2017 contains legal
infirmities in passing the order as well as informing the pax.
The impugned order was received by the pax on 09.01.2018
from the concerned authority which was shocking to him as
the order was passed in such a scenario that the pax was not
even informed about the grounds and charges under which
he is held liable under the case. The application that the pax
received the order on 09.01.2018 and the time period for
filing the appeal within the period of sixty days against the
order should start from 09.02.2018 is given on 05.02.2018.
Annexure-K.
11. That the petitioner suffering from the order dated 05.02.2018
being violative of principles of Natural Justice as not
providing personal hearing and Show Cause Notice appealed
to The Commissioner dated 07.03.2018. Annexure-D.
12. That the there has been many failures on the part of the
Respondent/Department which has caused inordinate delay
which has affected the Petitioner as he is not in a position to
bear the loss caused the illegal confiscation of the goods. So,
the Petitioner after filing an Appeal to The Commissioner has
filed several applications dated 06.04.2018 Annexure-E ,
30.07.2018 Annexure-F and 27.08.2018 Annexure-G for
early hearing.
13. That the Petitioner has also filed an Application dated
27.08.2018 seeking all the relied upon documents from the
Respondent/Department as the order dated 05.12.2017 has
procedural flaws and violative of Principles of Natural
Justice, hence it is important to know the relied upon
documents which were considered by the Additional
Commissioner while passing the order such as statement
dated 18.05.2017 given by the pax, the letter dated
30.05.2017 submitted by the pax, Notification no. 12/2012
dated 17.02.2012 and the copy of all relied upon judgments
pronounced by the Hon’ble Supreme Court. Annexure-I.
14. That since order dated 05.12.2017 is violative of principles of
Natural Justice and there should not be much delay in
deciding the matter in Appeal the present writ petition has
been filed on the following amongst other grounds.

GROUNDS

A. Because Show Cause Notice (hereinafter referred as

“SCN”) was not served to the petitioner in the present

matter. Issuance of SCN is statutory requirement for

 settlement of any dispute or any punitive action to be

undertaken for contravention of provisions of customs act

and the rules made thereunder. The issuance of show

cause notice is mandatory requirement given under

section 124 of the Customs Act, 1962.

B. Because the impugned order in the instant matter bound

to be quashed as the Principles of Natural Justicei.e. right

to have a show cause notice and personal hearing, has not

been provided by the authorities to the Pax/Petitioner.

C. Because the authorities had induced the Pax about the

release of goods after waiver of SCN and Personal hearing,

the payment of penalty/fine, duty and other formalities.

The aspect of free will has been affected by the such

inducements while giving such statements to the

authorities. The authorities had badly failed in providing

the reasonable opportunity to the Pax of having a legal

advice.

D. Because the averment pertains to waiver of right to show-

cause notice and personal hearing in request-letter dated

30-05-2017 made in the impugned order is false and

denied. There is no such request made by the petitioner in

the instant matter. It is pertinent to mention that service

of a Show-Cause Notice and an opportunity of Personal

Hearing are pre-requisite to pass an Order in matter of

such nature.
E. Because the impugned order of the absolute confiscation

of goods, under Section 111(d), 111(j), 111(l), 111(m) of the

Customs Act,1962 along with the penalty of Rs.

1,20,000/- under section 112 of the Customs Act, 1962; is

arbitrary.

F. Because the authorities have failed to grant redemption of

gold and imposed penalty erroneously. It is important to

mention that the passenger/pax in the instant matter

came after more than 11 months. The total stay abroad is

more than Six months. Hence the pax fulfils the condition

of the Notification No. 12/2012 dated 17.03.2012 as

amended. Therefore, the pax is eligible to import the gold

at the concessional rate of duty as per the rules. The rate

of duty involved is 10.3 %.

G. Because the Pax/Petitioner has right to redeem the goods

under section 125 of the Customs Act, 1962 as the said

good is not a “prohibited goods”.

H. Because the Pax i.e. Mr. Rustom Khan is the legitimate

owner of the said goods and holds bill no. 109209,

purchased it from the shop named Kanz Al Sahraa For

Gold and Jwellery, Riyadh. The goods were purchased for

personal use thus charge of smuggling cannot be imposed.

The true copy of the said bill is herewith annexed as

ANNEXURE B.

I. Because the goods seized by the authorities is projected to

be “detained” in order to escape from the clause 2 of

 section 110 which cast a responsibility upon the officials,

in cases of seizure, to timely serve a Show-Cause Notice

upon the passenger.

J. Because the legal infirmity lies not just in passing the

impugned order but also in informing the petitioner. The

impugned order dated 05.12.2017 was received (in-

person) by the petitioner himself on 09.01.2018 from the

concerned authority. This was shocking to him as no prior

information with regards to charges levelled, were

provided to him.

K. Because the penalty of Rs. 1,20,000/-(Rupees One Lakh

Twenty Thousand only), imposed on the Pax vide Order

dated 05.12.2017, which contains legal infirmities bound

to be set aside.

15. That the petitioner has not filed any other petition before

Hon’ble Supreme Court of India or before this Hon’ble Court

or in any other High Court on the agitating or invoking the

same or similar facts and grounds.

16. That the petitioners are not left with any other efficacious

remedy except to approach this Hon’ble Court by way of a

writ petition under Article 226 of the Constitution of India for

the issuance of a writ of Mandamus or any other order or

direction.

PRAYER
It is therefore most respectfully prayed that in view of the
facts and circumstances mentioned above, this Hon’ble
Court may kindly be pleased to:
 i) Issue a writ of Mandamus or any other writ or order
or direction thereby directing the Respondent to
decide the matter in a time bound manner and
Quash the Order No.: 305/2017-2018 dated
05.12.2017passed by the Additional Commissioner
of Custom
ii) Direct the respondent to provide an opportunity to
redeem the goods under Section 125 of the Customs
Act,1962, after paying the concessional rate of duty
as per the rules.
iii) Quash the penalty of Rs. 1,20,000/- which has been
wrongly imposed by the Additional Commissioner of
Customs, IGI, Airport, New Delhi.
iv) Any other order/ relief as this Hon’ble Court may
deem fit may kindly be passed in favor of the
petitioner, in the interest of Justice.

New Delhi

Dated: - 00/00/2018 Mohit Prasad

Advocate
Office:-G-37(Basement),
Jungpura Extension,
New Delhi.
Ph. No. :- +91-8946802806
Email: mohitatlaw@gmail.com
 IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

Mohammad Rustom Khan ...Petitioner

Versus

The Commissioner (Appeals), IGI Airport …Respondents

NOTICE OF MOTION
To,

Standing Counsel,

Ch. No. _____, Delhi High Court,

New Delhi.

Sir,

Please find enclosed herewith a copy of Petition under

Article 226 of Constitution of India moved in the above referred
matter.

The said writ petition is likely to be listed on or around

___.___.2018.
0Please take note.
Yours sincerely,
New Delhi

Dated: - MOHIT PRASAD

Advocate
Office:-G-37(Basement),
Jungpura Extension, New Delhi.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

Mohammad Rustom Khan ….Petitioner

Versus

The Commissioner, IGI Airport …Respondents

INDEX

Sl. Particulars Pages Court

No. Fee

1. Notice of Motion ‘A’

2. Urgent Application 'B' Rs.2.75

3. Memo of parties 'C – D'

4. Synopsis & List of Dates ‘E – F’

5. WRIT PETITION UNDER ARTICLE

226 OF THE CONSTITUTION OF Rs.
INDIA SEEKING ISSUANCE OF 2.75
WRIT OF MANDAMUS OR ANY
OTHER APPOROPRIATE WRIT
THEREBY DIRECTING THE
RESPONDENT TO DECIDE THE
MATTER IN A STIPULATED TIME
PERIOD AS THIS COURT
FINDS APPROPRIATE ALONGWITH
SUPPORTING AFFIDAVITS.

6. Annexure 'A'

Copy of the Detention Receipt No. 18199

7. Annexure 'B'

Copy of the bill of the said goods having

bill no. 109209

8. Application under Section 151 C.P.C for

stay of decision communicated vide email
datedand finding dated
30.09.2016alongwith affidavit.

Application under Section 151 C.P.C for

exemption from filling certified copies of
the annexures alongwith affidavit.

Vakalatnama

FILED BY:

New Delhi

Dated:- ___.__.2018 Mohit Prasad

Advocate
Office:-G-37(Basement),
Jungpura Extension, New Delhi
 IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

Mohammad Rustom Khan ….Petitioner

Versus

The Commissioner (Appeals), IGI Airport …Respondents

To,

The Registrar,

High Court of Delhi

New Delhi.

URGENT APPLICATION

Sir,

Would you kindly treat the accompanying Petition as an

urgent one as per the Rules & Regulations of Hon'ble High
Court of Delhi. The ground of urgency is that:

THIS IS A PETITION UNDER ARTILE 226 OF CONSTITUTION

OF INDIA FOR ISSUANCE OF WRIT OF MANDAMUS.
PETITIONER

New Delhi

Dated: - ___.__.2018 MOHIT PRASAD

Advocate
Office:-G-37(Basement),
Jungpura Extension, New Delhi
 IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

Mohammad Rustom Khan ….Petitioner

Versus

The Commissioner (Appeals), IGI Airport ...Respondents

MEMO OF PARTIES

1. Mohammad Rustom Khan

S/o Pharid Khan

R/o Khunkhuna,

TEHSIL- Didwana

DISTRICT- Nagaur, Rajsthan ...Petitioner

Versus

1. The Commissioner (Appeals)

New Customs House, Near IGI Airport,

NEW DELHI … Respondent

New Delhi

Dated: - 00.00.2018 Mohit Prasad

Advocate
Office:-G-37(Basement),
Jungpura Extension, New Delhi-110014
 SYNOPSIS AND LIST OF DATES

The instant writ petition under Article 226 of constitution of

India seeking a writ of Mandamus thereby directing the

respondent to decide the matter in a time bound manner.

LIST OF DATES & EVENTS

18.05.2017 : Mr. Mohmmad Rustam Khan arrived to IGI

Airport Terminal-3, New Delhi by flight No.
A1 926 where he was intercepted by a
custom officer at the exit gate and diverted
for detailed examination of his baggage
which led to recovery of one yellow metal
bar appearing of gold weighing 250 gm.

The said bar was detained for appraisement

and clearance against which a detention
receipt was provided to the pax.(Annexure
A)

The pax has given the statement that the

bar of gold weighing 250gms (24kt) belong
to him and purchased for his personal use
whose value comes to Rs. 6, 53,000/-.

The pax admitted that the bar was

ingeniously concealed by inside the socks
worn by him.

30.05.2017 The pax said to have approached the office

of the Commissioner of Customs, IGI
Airport Terminal-3 New Delhi and
submitted a letter admitting that the bar of
gold belongs to him and requested that the
said good may be released to him as he is
ready to pay the custom duty, fine and
penalty.

It is said that the pax waived his right to

have a show cause notice and personal
hearing.
 The said gold bar weighing 250gms was not
apprised by the Jewellery Appraiser as it
was admitted that the same is of 24kt.

31.07.2017 : The Petitioner works in Saudi Arabia as a

labor/painter, hence he gave power of
attorney dated 31.07.2017 one of his family
relative in order to pursue this matter for
release of gold. Annexure-B.

05.12.2017 : The Respondent ordered complete

confiscation of the goods i.e. one bar of gold
weighing 250gms (24kt) and imposed a
penalty of Rs. 1, 20,000/- under section
111 and 112 of the Customs Act, 1962
respectively. Annexure-C.

05.02.2018 The Petitioner received the order dated

05.12.2017 and was shocked as the order
was passed in such a scenario that the pax
was not even informed about the grounds
and charges under which he is held liable
under the case.

07.03.2018 : The petitioner appealed The Commissioner

against the order of Respondent dated
05.12.2018. Annexure-D.

06.04.2018 : The Petitioner filed an application for early

hearing as there is failures on the part of
the Respondent/Department which has
caused inordinate delay which has affected
the Petitioner as he is not in a position to
bear the loss caused the illegal confiscation
of the goods. Annexure-E.

30.07.2018 : The Petitioner again filed an Application for

early hearing of the matter. Annexure-F.

27.08.2018 : The Petitioner filed an Application for early

hearing of the matter Annexure-G,
Amendment in Memo of the Parties
Annexure-H and Application for seeking all
the relied documents Annexure-I.
0.0.2018 : Hence the writ petition.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

RUSTOM KHAN ….Petitioner

Versus

The Commissioner (Appeals), IGI Airport ….Respondents

APPLICATION UNDER SEC. 151 C.P.C. FOR

EXEMPTION FROM FILING CERTIFIED COPY OF THE
ANNEXURES.

MOST RESPECTFULLY SHOWETH:

1. That the petitioner is filing the accompanying writ petition

and the contents of the said petition may be read as part

and parcel of this application and the same are not being

repeated herein for the sake of brevity.

2. That petitioner annexed the copies and typed copies of the

annexures with the accompanying petition.

3. That petitioner undertakes to produce the same before

this Hon'ble Court as and when directed by this Hon’ble

Court.
 In view of above it is most respectfully prayed that the

petitioner may kindly be exempted from filing certified copy of

the annexures in the interest of justice.

New Delhi

Dated: - 00.00.2018 MOHIT PRASAD

Advocate
Office: -G-37(Basement),
Jungpura Extension,
New Delhi-110014
 IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2018

IN THE MATTER OF:

RUSTOM KHAN ….Petitioner

Versus

The Commissioner (Appeals), IGI Airport …Respondents

APPLICATION UNDER SEC. 151 C.P.C. FOR STAY OF

DECISION COMMUNICATED THROUGH EMAIL DATED
25.09.2017 AND FINDING DATED 30.09.2017 OF
RESPONDENT NO.3.

MOST RESPECTFULLY SHOWETH :

1. That the instant petition has been filed challenging the

email communication dated 25.09.2017 sent by

respondent no.2 to the petitioner and findings dated

30.09.2016 by the respondent no.3.

2. That the son of the petitioner is presently in Bangalore in

Indian Junior Badminton Team camp preparing for

forthcoming Championship scheduled from 02.10.2017 in

Myanmar. The decision communicated through email

dated 25.09.2017 has effectively thrown out the

petitioner’s son from the training camp and forthcoming

championship. The aforesaid decision is based on a

finding dated 30.09.2016 arrived at by respondent no.3

and therefore if decision dated 25.09.2017 withdrawing

 the name of the petitioner’s son from the Indian Junior

Team and finding of respondent no.3 dated 30.09.2016

are not stayed, the petitioner’s son years of hard work may

go waste and a promising sportsman career will be

wasted. Therefore the petitioner vide this application seeks

the indulgence of the Hon’ble Court seeking and praying

stay of the both the aforesaid decision dated 25.09.2017

and 30.09.2016 till the pendency of the present petition.

3. The contents of the accompanying writ petition may be

read as part and parcel of the instant application as they

have not been repeated for the sake of brevity.

PRAYER

It is therefore most respectfully prayed that in view of the

facts and circumstances mentioned above, this Hon’ble
Court may kindly be pleased to:
i) Issue a writ of Mandamus or any other writ or order
or direction thereby directing the Respondent to
decide the matter in a time bound manner and
Quash the Order No.: 305/2017-2018 dated
05.12.2017 passed by the Additional Commissioner
of Custom
ii) Direct the respondent to provide an opportunity to
redeem the goods under Section 125 of the Customs
Act,1962, after paying the concessional rate of duty
as per the rules.
iii) Quash the penalty of Rs. 1,20,000/- which has been
wrongly imposed by the Additional Commissioner of
Customs, IGI, Airport, New Delhi.
iv) Any other order/ relief as this Hon’ble Court may
deem fit may kindly be passed in favor of the
petitioner, in the interest of Justice.
New Delhi

Dated: - 00.00.2018 MOHIT PRASAD

Advocate
Office:-G-37(Basement),
Jungpura Extension, New Delhi