Government of Bangladesh and others Vs. Abu Musa

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh and others ………………….. Appellants

-VS-

Abu Musa …………………………………. Respondent

JUSTICE

Mahmudul Amin Choudhury CJ

Mainur Reza Chowdhury J

Mohammad Gholam Rabbani J

Md. Ruhul Amin J

JUDGEMENT DATE: 31st May 2001.

Section 180 of the Customs Act, 1969

That only that person is entitled to get a show cause notice from whose custody the good in question is seized But in the instant case the goods were seized from an abandoned truck and therefore the order of confiscating the goods in the absence of the show cause notice under the section could not make the order of confiscation as illegal……………………….. (9)

Civil Appeal No. 11 of 2001 (From the Judgment and Order dated 27.7.2000 passed by the High Court Division in Writ Petition No. 2885 of 2000)

Mahbubey Alam, Additional Attorney General; instructed by Sufi a Khatun, Advocate-on-Record …………………. For the Appellants

Rafiq-ul-Huq, Senior Advocate, (Aminul Hug, Advocate, with him) instructed by Md. Nowab AH, Advocate-on-Record.

JUDGMENT

1. Mohammad Gholam Rabbani J: This appeal at the instance of the Government of

Bangladesh, Commissioner of Customs and National Board of Revenue is directed against the judgment and order dated 27.7.2000 of a Division Bench of the High Court Division passed in Writ Petition No. 2885 of 2000 making the Rule absolute wherein the appellants were the respondents.

2. The case of the writ petitioner Md. Abu Musa briefly was this. He is the proprietor of

a shop named “Bandhan Shari Fashion” at the Eastern Plaza within the city of Dhaka.

Certain seized items including shari and cloth were put into auction by the Customs Department on 10.6.98. Super Shari Ghar at Gausia Market within the city of Dhaka auction purchased the same and got the delivery thereof on 16.7.98. Subsequently Manir Hossain of Azampur Super Market, Uttara. Dhaka, purchased those from the said auction

purchaser and thereafter writ petitioner purchased the same from said Manir Hossain on.

28.11.99. When a truck was carrying those goods from Uttara to the writ petitioner’s said

shop at Eastern Plaza on 4.12.99 Customs Intelligence officer seized the goods on the

way near Sundarban Hotel at about 10-30 P.M. and started departmental proceeding

treating the goods as smuggled goods, but without any F.I.R. or G.D. entry to the police

station.

3. The case of the Customs Department as stated in annexure “G” to the writ petition briefly was this. While on duty near the bridge on the Bishvva Road near Kanchpur a team of Customs Intelligence found a truck bearing No. Metro-ta 11-1476 with loaded goods on 4.12.99 at 3-30 A.M. coming towards Dhaka and on suspecion the team followed the truck. Suddenly the driver stopped the truck reaching near the graveyard at Swamibagh and fled away abandoning the truck. The said team found the truck loaded with Indian sharis and seized the same. Thereafter customs departmental proceeding was started.

4. It was the further case of the writ petitioner that he lodged claim to the said seized goods before the Commissioner of Customs on 9.12.99, but the Commissioner of Customs rejected the claim without hearing him and confiscated the goods by his order dated 2.2.2000 and against thereof writ petitioner filed appeal to the Customs, Excise and Vat Appellate Tribunal, Dhaka (hearafter referred to as ‘the Tribunal’) who by the judgment and order dated 11.5.2000 dismissed the appeal.

5. By the impugned judgment and order, the High Court Division decleared the confiscation of the seized goods in question as illegal on two grounds. One is that the Customs Department failed to comply with the provision of section 180 of the Customs Act. Other is that the finding of the Tribunal was not based on any material.

6. Leave in this appeal was granted to consider the submission on behalf of the appellants

that the writ petitioner having not been able to produce any paper to show that the goods in question were the same goods as were sold in auction and the Tribunal having disbelieved the claim of the writ petitioner by assigning reason which being a finding of fact, the High Court Division erred in law in setting aside that finding in its writ jurisdiction. It was also noticed in the leave granting order the submission of the learned advocate entering caveat that the Commissioner of Customs did not follow the provision of section 180 of the Customs Act by not asking the claimant (writ petitioner) to show cause as to why the seized goods should not be confiscated.

7. We have heard the learned Additional Attorney General for the appellants and the

learned advocate for the writ petitioner-respondent at length.

8. Section 180 of the Customs Act. 1969. runs as follows: ” 180. Issue of show-cause notice before confiscation of goods or imposition of penalty,- No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any

person, unless the owner of the goods, if any, or such person (a) is informed in writing (or if the person concerned consents in writing orally) of the grounds on which it is proposed to confiscate the goods of the impose the penalty; (b)is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it orally) within such reasonable time as the appropriate officer may specify, against the proposed action; and (c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorised agent.” (Proviso is omitted as not necessary.)

9. A plain reading of the quoted section is sufficient to hold that only that person is entitled to get a show cause notice from whose custody the good in question is seized But in the insta.it case the goods were seized from an abandoned truck and therefore the order of confiscating the goods in the absence of the show cause notice under the section could not make the order of confiscation as illegal.

10. The issue as to whether the seized goods were the same goods as were sold in auction

and further as to whether the goods were seized at a place near the Sundarban Hotel or

at a place near the graveyard in Swamibagh are all disputed questions of fact. We find that the High Court Division decided the issues in a slip shod manner while ignoring the intra vires finding of the Tribunal. Learned advocates for both the parties have led us into each and every annexures to the writ petition regarding the case of the writ petitioner that the seized goods were the same goods which were auction sold and that the writ petitioner purchased those goods. But we find that those annexures are not sufficient to come to a definite conclusion in favour of the writ petitioner so as to declare the impugned finding of the Tribunal as erroneous or perverse. We hold that the two grounds upon which the High Court Division made the Rule absolute can not be maintained.

11. In the result, this appeal is allowed without costs. The judgment and order dated

27.7.2000 passed by the High Court Division in Writ Petition No. 2885 of 2000 are set aside and the Rule issued in the said Writ Petition stands discharged.

Ed.

Source: IV ADC (2007), 284

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