Vehicle cannot be Seized by Customs Department on Mere Apprehension of Usage for Transporting Smuggled Goods: Kerala HC [Read Order]

In a recent decision the Kerala High Court observed that the vehicle cannot be seized by the Customs Department on mere apprehension of usage for transporting smuggled goods.

The petitioner, Safir P alleged that he had handed over the car to one of his family friends as there was none to use his car at his house. On his return, from Dubai he learnt that his vehicle was seized from the parking area of the Cochin International Airport by the Customs authorities. On further enquiry, it was revealed that two persons had travelled in his car to the airport to receive a passenger carrying 931.73 gms of gold, which was apparently smuggled into the country.

Section 106 of the Customs Act confers power upon the Department to stop and search vehicles if it is being or is about to be used in the smuggling of any goods or in the carriage of any smuggled goods. The power to search is distinct from the power to seize.

On a reading of section 106 of the Customs Act, it is evident that power is conferred upon the officers to search a vehicle if they suspect that the vehicle is involved in smuggling or other offences under the Customs Act

At the time when the vehicle was intercepted, there was no gold inside. The further admitted case of the Department is that the person who carried the gold arrived from Doha, and the smuggled gold was about to be collected at the parking area of Cochin International Airport. Therefore, evidently, till the seizure, the smuggled gold had not entered the car at any point in time. Further, petitioner, as the owner of the vehicle, is not alleged of any involvement in smuggling.

A Single Bench of Justice Bechu Kurian Thomas observed that “The power of confiscation under section 115(2) of the Customs Act can arise only if the vehicle was actually used or is being used for smuggling goods and not for apprehended use or future use. Hence a vehicle cannot be seized by customs on an apprehension that it may be used in future as a means of transporting smuggled goods.”

“If a possible future use of a vehicle as a means of transport for smuggling goods confers a power of confiscation of such a vehicle, that power will be unbridled, absolute and unregulated. The discretion to seize or not to seize a vehicle for apprehended future use as a means of transport of smuggled goods will confer an unregulated discretion devoid of any clarity for its exercise” the Court said.

To Read the full text of the Order CLICK HERE

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