/2023 INSC 0390/ IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) NO. 55 OF 2023 YAMAL MANOJBHAI … PETITIONER(S) VERSUS UNION OF INDIA & ORS. … RESPONDENT(S) ORDER In view of divergence of opinion, Registry is directed to place this matter before Hon’ble the Chief Justice of India for appropriate orders. ….......…….……....……….,J. (KRISHNA MURARI) …..…..…....…................…,J. (SANJAY KAROL) NEW DELHI; 04 th MAY, 2023 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) NO. 55 OF 2023 YAMAL MANOJBHAI …PETITIONER(S) VERSUS UNION OF INDIA & ORS. … RESPONDENT(S) JUDGMENT KRISHNA MURARI, J. 1. The present writ petition filed under Article 32 of the Constitution of India raises an issue of huge importance of personal liberty under Article 21 of the Constitution of India, regarding the right of an accused under the Customs Act, 1962 (hereinafter referred to as the ‘Customs Act’) to settle the dispute as per provisions contained under chapter XIV A of the Customs Act. 2. The writ petitioner, who is a Non-Resident Indian (for short, ‘NRI’), was arrested on 04.10.2022 at the Delhi International Airport. It is the case of the respondent that petitioner had tried to smuggle high value goods, mainly 1 watches through the green channel entrance, in order to escape from paying duty on the same. 3. On suspicion of the petitioner trying to smuggle goods through customs, a detailed examination of the person and baggage of the petitioner was conducted, and it resulted in the recovery of seven wrist watches, along with a few other high value goods. Since the petitioner appeared to have committed offences under Sections 132 and 135 of the Customs act, he was arrested on 05.10.2022. After the arrest, the petitioner herein then filed the present writ petition, wherein he sought for the issuance of directions for permission of home cooked food being granted to him. 4. The petitioner, being an NRI, has been unable to travel outside India since 06.10.2022, and as such has been amenable to settle the dispute by approaching the settlement commission under Section 127 of the Customs Act, by paying the dues and any interest accrued thereon to the customs department in accordance with law. However, for a want of notice by the customs authorities to initiate the settlement process, the petitioner filed an I.A. seeking the same. 5. In the abovementioned I.A. filed by the petitioner, an ex-parte order dated 20.02.2023 was passed by this Court, wherein the Commissioner of Customs 2 was directed to issue a show-cause notice to the petitioner, to initiate the proceedings. 6. The respondent then, on being served the abovementioned ex-parte order, filed an application for a recall of the said order. Several grounds were raised on the issue of jurisdiction of the Settlement Commission to hear the said matter. Both the parties were heard at length, and vide order dated 20.02.2023, the said ex-parte order was recalled. 7. After the recall of order passed by this Court, both the parties argued at length on merits, and during the course of the said arguments, an apparent conflict between two judgments of the Bombay High Court and the Delhi High Court was brought to our notice by the petitioner, by way of an application for placing additional grounds, documents and prayers. Thereafter, the matter was further argued on merits by the learned counsel for both the parties, and judgment was reserved. 8. When the abovementioned conflict between the two High Court judgments was brought to our notice, it was pointed out to us by the learned counsel appearing on behalf of the petitioner that such conflict between the two High Court judgments, if left unnoticed, has the potential to cause great harm to accused persons charged under the Customs Act, and deprive them of the power to invoke the remedy of settlement. 3 ANALYSIS 9. The issue of settlement under the Customs Act, which will be discussed by us in detail below, essentially has the power to grant an accused a remedy to obtain immunity from prosecution and penalty as provided under Section 127(H) of the Customs Act. Such a right, if it remains under a cloud of ambiguity, may not only cause damage to the fundamental rights accrued to accused persons to live a dignified life without fear of incarceration, and may needlessly force certain accused persons to be deprived of a free life outside the languish of custody. Further, such a circumstance may also result in contrary views being taken by different adjudicating authorities in identical cases, with similar facts and circumstances. 10. The Settlement Commission, governed by chapter XIV A of the Customs Act, was inserted by virtue of Section 102 of the Finance (No.2) Act, 1998 (Act No. XXI of 1998), with the aim of settling issues of tax evasion by virtue of a disclosure by the tax offender. Such a disclosure, if made bona fide, allowed for the tax evader to gain immunity from either fine or penalty. While at first glance, it may seem that such a provision allows for offenders to escape penal consequences with no benefit caused to the government, however, a deeper analysis of the provisions would prove otherwise. The withholding of tax by tax offenders, unlike most other offences, directly impacts the revenue of the country. Further, due to the complexities arising 4 from such disputes, the adjudication of the same often takes a very long time. In such a scenario, wherein a long length of time consumed to resolve tax disputes directly affects the revenue, and resultantly the welfare of the country, the legislature found it imperative for the enactment of a beneficial and time saving remedy, that would not only help the government in helping reclaim the tax amounts due, but also incentivize persons to do the same. It is out of these considerations that the Settlement Commission was born, and as such, this backdrop must always be kept in mind while adjudicating on issues of jurisdiction of the Settlement Commission. PRELIMINARY OBJECTION 11. During the course of the hearing, a preliminary objection has been raised by the learned counsel appearing on behalf of the respondent stating that since the original relief sought for was limited to the grant of providing home cooked meals to undertrial prisoners, this court is not the appropriate forum to decide on the present question of law and resolve the conflict between the two High Court judgments. 12. In the present case at hand, as has been mentioned above, the learned counsels appearing on behalf of both the parties have argued at length on the merits of the case and the point of law in question. The said ambiguity in the impugned point of law, caused by the conflicting decisions the two High 5 Courts, has the potential to cause great harm to the fundamental rights of accused persons presently dealing with similar litigations, and future accused persons who might also have to deal with similar litigations. 13. In such a scenario, wherein such a length of time has been devoted by the parties and the court, this court sits in a unique position wherein it is equipped with all the necessary knowledge to clear the said ambiguity. If such an opportunity to clear the said ambiguity is not exercised by this court, it would so happen that, at some point in the future, this court would again be tasked with answering the same question of law, for which, a great length of time would again be spent by the court, to complete the same task which could have been dealt with at an earlier time. Such a lack of exercise of its jurisdiction by the court would not only increase the burden on the pendency of matters, but will also subject litigants from across the country to further pendency. It is therefore imperative that this court, at this instance, remedy such a mischief, to save the court and future litigants from multiplicity of proceedings and mischief caused by such ambiguity. 14. In so far as maintainability of the present writ petition on grounds of deviation from the initial prayer is concerned, it has been held in a catena of judgments that this Court, under writ jurisdiction, is not bound by the relief sought and can go beyond the original relief in order to meet the ends of justice. Further, in such a situation where there is a conflict of opinion on a 6 legal issue between two High Courts, mere technical objections can not be allowed to stand in the way of exercising our powers conferred by way of Article 32 of the Constitution of India. 15. The reason why Article 32 is given such importance is because the state as an organ, if left without checks and balances, has the potential to become a tyrannical institution that can take the civil and individual liberties of its people for granted. To curb this inclination of the state at its very roots, the constitutional scheme envisaged an organ within the state machinery, namely the judicial organ, which is vested with the powers to interfere with the tyrannical tendencies of the state. This organ, with the Apex Court being at the helm of it, though functions within the state, in cases of violations of fundamental rights, also combats against it. 16. Further, the Constitution of India, amongst all the other rights conferred by it, has placed civil and individual liberties at the highest pedestal. These civil and individual liberties, that act as a sword and a shield against the state, find their translation from ideal to enforceable rights through Part III of the Constitution. 17. One such right under Part III of the Constitution, which shields its people from the tyranny of the state, is Article 32 of the Constitution, which in itself is a fundamental right falling within part III of the constitution, that exists to 7 protect other fundamental rights. By way of Article 32, any action of the state that violates the fundamental rights of a person, or causes harm to civil or individual liberties, is within the purview of scrutiny of the Court. 18. During the constituent assembly debates, when the question of the ambit of Article 32, which was then Article 25 of the draft constitution, was posed, the makers of the Constitution deliberated extensively on the scope of the said article and the extent of its powers. It was during these debates when Dr. B.R Ambedkar, very famously stated that Article 32 is the very soul of the constitution. The said quote by Dr. B.R Ambedkar is being extracted herein:- “Now, Sir, I am very glad that the majority of those who spoke on this article have realised the importance and the significance of this article. If I was asked to name any particular article in this Constitution as the most important– an article without which this Constitution would be a nullity– I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.” 19. Further, Father Jerome D’Souza, a Member of the Constituent Assembly, while emphasizing on the importance of Article 32 of the Constitution of India stated as follows:- “I should like to draw the attention of the House, Sir, to the implications of this article, implications which possibly are not obvious at the first reading. This House, and through this House the Legislatures that have to rule this country in future, by a laudable and significant act of self-denial or self-abnegation, places under the power of a Supreme Judicature the enforcement of certain laws and certain principles, and remove them from the purview and the control of the Parliaments which will be elected in future years. They wish to put these rights beyond the 8 possib\blity of attack or change which may be brought about by the passions and vicissitudes of party politics, by placing them under the jurisdiction of judges appointed in the manner provided for later on in this Constitution. Sir, it is because we all believe,–and that is the implication of this chapter of fundamental Rights,–that man has certain rights that are inalienable,that cannot be questioned by any humanly constituted legislative authority, that these Fundamental Rights are framed in this manner and a sanction and a protection given to them by this provision for appeal to the Supreme Court. As I said, Sir, the implication of this is that an individual must be protected even against the collective action of people who may not fully appreciate his needs, his rights, his claims. And the sacredness of the individual personality, the claims of his conscience, are, I venture to say, based upon a philosophy, an outlook on life which are essentially spiritual. Sir, if all our people and their outlook were entirely materialistic, if right and wrong were to be judged by a majority vote, then there is no significance in fundamental rights and the placing of them under the protection of the High Court. It is because we believe that the fullest and the most integral definition of democracy includes and is based upon this sacredness of the individual, of his personality and the claims of his conscience, that we have framed these rights. I say, Sir, further that in the last analysis we have to make an appeal to a moral law and through the moral law to a Supreme Being, if the highest and the fullest authority is to be given and the most stable sanction to be secured for these fundamental rights. Sir, Mahatma Gandhi, in one of his unforgettable phrases, referring to the desire to have a secular Constitution and to avoid the name of the Supreme Being in it, cried out, “You may keep out the Name, but you will not keep out the Thing from that Constitution”. And, Sir, I believe that these fundamental rights and their implications are really tantamount to a confession that beyond human agencies and human legislatures there is a Power which has to be submitted to, and there are rights which have to be respected. By this article we give to our Supreme Judicature a power, a status and a dignity which will call from them the highest qualities of integrity and uprightness. The full meaning of this article should be borne in mind when we come to that Part of the Constitution beginning with article 103, when we shall have to scrutinize the steps by which an upright and absolutely fair 9 judiciary will be established in this land. When we consider that Part, let us recall these Rights and make sure that all these various provisions will be enforced in a just and fearless manner.” 20. It is in this background that Article 32 of the Constitution of India has been brought into force, to ensure that the Supreme Court is always equipped to tackle the other organs of the state, especially in circumstances wherein civil and individual liberties guaranteed by the fundamental rights are at risk. 21. Further, It has come to our notice that in the cases of Additional Commissioner of Customs v. Ram Niwas Verma 1 , Customs v. Avinash Dawar & Anr 2 , 10 mischief caused by the conflicting views is erased, and the certainty in law is restored. 23. In light of the abovementioned discussions, we are not inclined to agree with the preliminary objections raised by the respondent, regarding maintainability of the petition on mere technicalities and accordingly reject the same. CONFLICT BETWEEN THE TWO SETS OF HIGH COURT JUDGMENTS 24. During the course of arguments on merits, the learned counsel appearing on behalf of the petitioner herein placed strong reliance on the judgment of Union Of India vs Suresh Raheja & Ors 4 . The petitioner in the abovementioned case was caught trying to smuggle goods through the green channel of entry. The seizure of the impugned goods therein, similar to the present case at hand, was conducted within the customs area. Subsequent to the seizure, the petitioner therein was amenable to settle the dues, and seek relief under Section 127 of the Customs Act, however, the goods seized were explicitly mentioned in Section 123 of the Customs Act, which put a bar on settlement of cases under Section 127 B of the said Act. The relevant paragraph of the said judgement is being extracted herein:- “It is further required to be borne in mind that in so far origin of the goods is concerned, there is no dispute in respect of both the jewellery as well as the watches. Therefore, the contention of the 4 2011 (267) E.L.T. 487 (Bom.) 11 Petitioner that the Respondents had failed to discharge the burden cast by Section 123 of the said Act is mis-founded. Once the origin of the goods was not in dispute, the Respondents as held by the Settlement Commission were entitled to invoke the jurisdiction of the Settlement Commission and, therefore, the bar contained in the proviso to Section 127B could not have come in their way. The finding of the: Settlement Commission in the aforesaid factual background that the Respondents herein, who were the Applicants before the Settlement Commission, fulfill all the conditions laid down in Section 127(B) (1) of the said Act, can be said to be a possible view in the said factual background." 25. While deciding on the said issue, it was held by the High Court of Bombay that if an accused is caught within the customs area, the bar on Section 127 of the Customs Act on goods mentioned under Section 123 of the same Act is redundant, and the accused is entitled to the remedy of settlement. 26. Learned counsel appearing on behalf of the respondent, per contra, relied on 12 not fall under any of the excluded categories of cases. It may be noted at this stage that the decision in Additional Commissioner of Customs v. Shri Ram Niwas Verma (supra), was a case where imported goods were covered under the third Proviso to Section 127B(1) and, therefore, the said decision is distinguishable on (1) Where any goods to which this section applies are seized under (a) in a case where such seizure is made from the possession of any (i) on the person from whose possession the goods were seized; and watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. (1) Any importer, exporter or any other person (hereinafter referred to as the applicant in this Chapter) may, in respect of a case, relating to him make an application, before adjudication to the Settlement Commission to have the case settled, in such form 13 and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification, under-valuation or inapplicability of exemption notification 254 [or otherwise] and such application shall be (b) the additional amount of duty accepted by the applicant in his Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending in the Appellate Tribunal or any court: Provided also that no application under this sub-section shall be made in relation to goods to which section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) has been committed: Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975). (1A) Notwithstanding anything contained in sub-section (1), where an application was made under sub-section (1) before the 1st day of June, 2007 but an order under sub section (1) of section 127C has not been made before the said date, the applicant shall within a period of thirty days from the 1st day of June, 2007 pay the accepted duty liability failing which his application shall be liable to be rejected.” 14 28. Section 123 of the Customs Act 1962, states that if an accused is caught by the authorities in the act of smuggling goods, the burden of proof, which originally vests with the prosecution, is reversed, and the same is transferred from the prosecution to the defense. In simpler terms, this would mean that in such cases, it is the accused who is tasked with proving his innocence, rather than the prosecution proving the accused person’s guilt. 29. This discharge of burden of proof, in our opinion, can only happen in cases where there is a reasonable possibility of the accused being innocent. In the present case at hand, the petitioner herein was caught with the impugned goods within the customs area. In such a scenario, where the impugned goods are found on the person of the accused and within the customs area, any chance of the accused being innocent becomes an impossibility, since the illegal act is caught in the heat of the crime. 30. Since the discharge of burden proof, rather, the question of burden of proof itself becomes redundant in cases of seizures within the customs area, by default, the provision that mandates such a task also becomes redundant. In light of the abovementioned discussion therefore, in cases of seizure within the customs area, Section 123 of the Customs Act cannot apply and hence, the decision in the Suresh Judgement (Supra) passed by the High Court of Judicature at Bombay states the correct position of law. It must also be noted that the abovementioned decision of the High Court of Bombay was 15 impugned in appeal before this Court, and vide order dated 14.09.2011, this Court had concurred with the decision of the High Court and dismissed the appeal of the revenue. Since the facts and circumstances of the case herein are identical to the abovementioned case, we find no cogent reason to take a different view herein. 31. In light of the abovementioned facts and discussions, we are of the opinion that judgment rendered by the High Court of Bombay in the Suresh judgment (Supra) expounds the correction position of law, and we concur and approve the same. 32. While the conflict between the two sets of High Court judgments has been brought to an end, certain other issues flowing from the said interpretation, in our opinion, must also be clarified. 33. The learned counsel for the respondent, through his submissions, contended that a non-declaration of goods, as mandated by Section 77 of the Customs Act, ousts the jurisdiction of the Settlement Commission. To bring clarity to the said contention, we must first shed light on the two modes of clearance of incoming passengers, which are the red channel mode of entry and the green channel mode of entry. 34. When an incoming passenger goes through customs verification, he has two options of clearances, which are the red channel mode of entry and the green 16 channel mode of entry. When an incoming passenger avails the red channel mode of entry, it is accepted by the passenger that they have goods that are liable for duty, and hence, by virtue of their own admission, are mandated declare the goods that require duty as per Section 77 of the Customs Act. 35. If a passenger opts for the green channel mode of entry, it implies that the passenger, by virtue of not opting for the red channel mode of entry, is stating that he has no goods that are liable to duty, and hence, it is deemed that they are making a declaration under Section 77 of the Customs Act of carrying “Nil” dutiable goods. 36. However, if a passenger decides to opt for the green channel of entry, but, is still found with goods that are subject to the levy of duty, they become liable to confiscatory and penal action as per the Customs Act. Since they become subject to the penal provisions of the Customs Act, by default, it must also be implied that they are given the benefit of settlement as per the same Act. No surgery in such a scenario can be done, wherein the accused is held liable of the penal consequences of the act, however, is denied the benefit of remedy under the same Act. 37. Further, if we were to accept the proposition that a non-declaration under Section 77 of the Customs Act would automatically bar the incoming passenger from availing the benefit of settlement, in light of our observation 17 that an entry through the green channel mode implies a declaration of “Nil” goods under Section 77 of the Act , the provision of settlement would become irrelevant and defunct, since no accused would ever be able to avail the benefits of settlement. 38. Therefore, in light of the above discussion, we see no reason as to why such a person cannot opt for a statutory remedy of settlement, and therefore reject the objection of the respondents in this regard. 39. We then come to the last issue that warrants our consideration. The learned 6 , the High Court of Judicature at Bombay, while deciding on a similar issue,by relying on the of the Act, an expansive interpretation, and held that the jurisdiction of the 6 (201) ELT 529 (Bom) 7 AIR 1957 SC 521 18 Settlement Commission can be invoked by a person who has committed smuggling, fraud or deliberate misdeclaration. The relevant paragraph of the judgment delivered by the High Court of Bombay is being reproduced 41. Further, the abovementioned judgment of the Bombay high court was impugned in the Supreme Court by way of an appeal, and the same was dismissed by this Court vide order dated 03.08.2011, further fortifying the judgment of the High Court. 42. On the basis of the abovementioned discussions, we are of the opinion that the contention of the respondent even in this regard is liable to be rejected. CONCLUSION 43. By way of additional submissions made by the petitioner, it has been brought to our notice that the Commissioner of Customs has issued a show cause notice to the petitioner. Since a show cause notice has already been issued, no 19 direction is that regard is warranted. If an application of settlement is filed by the petitioner, the same shall be dealt with by the Settlement Commission on its own merits and in accordance with law and the procedure prescribed u/s 127H of the Customs Act. However, we deem it appropriate to observe that, if at all, the Settlement Commission would deem fit, it can always seek further report from the “Commission (Investigation)” appointed within the Settlement Commission even after issuance of the show cause notice for this one time opportunity of settlement. 44. We refrain from making any observations on the merits of the case and leave the same for consideration by the Settlement Commission. 45. The Writ petition along with application therein are, accordingly, disposed of. ….......…………....……….,J. (KRISHNA MURARI) NEW DELHI; 04 th MAY, 2023 20 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 55/2023 YAMAL MANOJBHAI  …. PETITIONER V. UNION OF INDIA & ORS.        ....RESPONDENTS J U D G M E N T SANJAY KAROL, J.  1. I   have   perused   the   erudite   opinion   proposed   by   my   esteemed brother,   Hon’ble   Mr.   Justice   Krishna   Murari.   Respectfully,   I am unable to persuade myself to agree; hence, I separately pen down my conclusions.  2 2. Two   issues   arise   for   consideration   before   us;   One   whether   a settlement   remedy   under   Section   127B   of   the   Customs   Act, 1962,   would   be   available   for   the   seized   goods,   which   are specified under Section 123 of the said Act?  Two , would, in the attending  facts, the exercise of powers under  Article 32 of the Constitution of India be appropriate? Nature, Scope, Purpose and Scheme of Customs Act 3. The   Customs   Act,   1962   (hereafter   referred   to   as   the   Act)   was enacted to  consolidate the  provisions  relating   to  sea  customs, land   customs   and   air   customs   into   one   comprehensive measure.   It   is   an   act   to   sternly   and   expeditiously   deal   with smuggled   goods   and   curbs   the   dents   on   the   revenue   thus caused.   The   act   provides   for   the   confiscation   of   goods   and imposition of penalties when any goods are imported contrary to   prohibitions   imposed   [ Commissioner   of   Customs   v.   M. Ambalal, (2011) 2 SCC 74  (2­Judge Bench)].   4. To   understand   the   legislative   intent   behind   the   Act,   it   is important to discuss the scheme therein.  5. Chapter   II   of   the   Act   relates   to   the   appointment   of   customs officers and their powers under the Act.  3 6. Chapter   III   specifies   the   appointment   of   customs   ports   and airports wherein imported goods shall be unloaded, and export goods shall be loaded & cleared. 7.   Chapter IV empowers the Central Government to prohibit the importation   or   exportation   of   goods   for   the   purposes mentioned   therein,   such   as   maintaining   the   security   of   India and preventing smuggling.  8. Chapter   IVA   provides   for   the   detection   of   illegally   imported goods and the prevention of their disposal. 9. Chapter   V   specifies   the   imposition   of   customs   duties   and exemption therefrom.  10. Chapter VII pertains to the clearance of imported and exported goods.   This   chapter   also   deals   with   the   procedure   employed when goods are not cleared.    11. Chapter   XI   elucidates   special   provisions   regarding   baggage, goods   imported   or   exported,   and   the   required   declaration.   In this   Chapter,   Section   83   allows   for   the   duty   rate   and  tariff   to be imposed on goods imported or exported.  12. Chapter   XIII   provides   for   powers   relating   to   searches,   seizure and arrest. In this Chapter, an officer of customs is empowered 4 to   arrest   a   person   under   Section   105   if   he   has   reason   to believe that such a person may have made a false declaration (Section   132),   obstructed   a   customs   officer   (Section   133)   or evaded   customs   duty   that   is   liable   to   be   paid   (Section   135). Furthermore,   Section   108B   penalises   failure   to   furnish information as directed by the proper officer.  13. Chapter   XIV   allows   for   the   confiscation   of   goods   and   the imposition   of   penalties.   Sections   111   and   112   thereunder enumerate a list of goods which are liable for confiscation and the penalty thereof. Section 123 reverses the burden of proofs of certain specified seized goods.  14. Chapter   XIVA   contains   the   mechanism   for   the   settlement   of cases.  15. Chapter   XVI   of   the   Act   lays   down   offences   and   prosecution under   the   Customs   Act.   This   chapter   imposes,   as   a   penalty, imprisonment   for   certain   offences.   They   are:   making   a   false declaration relating  to customs (Section 132; may  extend to 1 year),   obstruction   of   an   officer   of   customs   (Section   133;   may extend   to   1   year),   refusal   to   be   X­rayed   (Section   134;   may extend   to   6   months)   and   evasion   of   duty   or   prohibitions (Section 135; may extend to seven years). 5 16. Given   the   above,   it   is   evident   that   the   scheme   of   the   act involves the imposition of customs duty, confiscation of goods and   consequences   of   skirting   or   attempting   to   skirt   the   same in   the   form   of   varied   penal   consequences,   including imprisonment. This follows the purpose of the Act, as noted by this   Court   in   Ambalal   (supra),   which   is   to   sternly   and expeditiously   deal   with   goods   smuggled   into   India   in contravention of the prohibitions within the law.   17. Considering   the   intention   of   the   Act   as   above,   I   now   discuss the sections pertaining to the controversy at hand: Section 123 and Section 127B of the Act.  18. Section 123 of the Act elucidates the burden of proof in certain cases. It reads as follows: “ 123. Burden of proof in certain cases.— under   this   Act   in   the   reasonable   belief   that   they   are   smuggled goods,   the   burden   of   proving   that   they   are   not   smuggled   goods shall be— of any person,— seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner   thereof, also on such other person; 6 (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. ( 2)   This   section   shall   apply   to   gold   [and   manufactures   thereof], watches,   and   any   other   class   of   goods   which   the   Central Government may by notification in the Official Gazette, specify.” Section   127B   of  the  Act  pertains   to  the  application  procedure for   the   settlement   of   cases   by   a   person   in   respect   of   a   case pending   adjudication.   Importantly ,   the   proviso   to   the   said states   that   no   application   shall   be   made   concerning   goods   to which Section 123 applies. It reads as follows: “ 127B. Application for settlement of cases.— referred   to   as   the   applicant   in   this   Chapter)   may,   in   respect   of   a case,   relating   to   him   make   an   application,   before   adjudication   to the Settlement Commission to have the case settled, in such form and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed   before   the   proper   officer,   the   manner   in   which   such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be   specified   by   rules   including   the   particulars   of   such   dutiable goods   in   respect   of   which   he   admits   short   levy   on   account   of misclassification,   under­valuation   or   inapplicability   of   exemption notification   [or  otherwise]   and  such   application   shall  be  disposed of in the manner hereinafter provided :  Provided that no such application shall be made unless,—  (a) the applicant has filed a bill of entry, or a shipping bill, in respect   of   import   or   export   of   such   goods,   as   the   case   may be,   and   in   relation   to   such   bill   of   entry   or   shipping   bill,   a show   cause   notice   has   been   issued   to   him   by   the   proper officer;  7 (b) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and  (c) the applicant has paid the additional amount of customs duty accepted by him along with interest due under section 28AB:  Provided   further   that   no   application   shall   be   entertained   by   the Settlement Commission under this sub­section in cases which are pending in the Appellate Tribunal or any court :  Provided also that no application under this sub­section shall be made in relation to goods to which section 123 applies  or to goods in relation to which any   offence   under   the   Narcotic   Drugs   and   Psychotropic Substances Act, 1985 (61 of 1985) has been committed : Provided also   that   no   application   under   this   sub­section   shall   be   made   for the   interpretation   of   the   classification   of   the   goods   under   the Customs Tariff Act, 1975 (51 of 1975).” The Petitioner contends that Section 123 of the Act would not apply   in   the   present   case   for   Settlement,   as   the   goods   of admitted   foreign   origin   stand   seized   within   the   customs   area upon   crossing   the   green   channel.   The   Petitioner   has   placed reliance on the judgment of the Bombay  High Court in   Union of   India   v.   Suresh   Raheja,   2011   (267)   E.L.T.   487   (Bom.) there   is   no   dispute   as   to   the   origin   of   the   goods,   the   bar contained   in   the   proviso   to   Section   127B   would   not   come   in the way, in respect of the specified goods under Section 123.  8 21. Furthermore, the Petitioner contends that the legislative object is   to   open   doors   for   settlement   and   not   to   rigidly   construe beneficial   provisions   in   a   mechanical   manner   that   would prevent settlement of cases. Analysis and Reasoning 22. This   is   the   plan   and   simple   construction   of   the   statute.   On   a plain reading of Sections 127B  and 123, it is evident that the proviso to Section 127B(1) specifies certain categories of goods are barred from the jurisdiction of the settlement commission. These   include   goods   mentioned   under   Section   123   and   goods relating   to   the   NDPS   Act.   Therefore,   recourse   under   Section 127B cannot be made if any of the above goods are involved 23. Even   without   any   controversy   about   the   origin   of   the   goods, Section   127B   of   the   Act   would   not   apply   for   settlement   in respect   of   the   goods   enumerated   under   Section   123   as   this goes   against   the   statutory   scheme   of   penal   consequences   for committing   certain   offences   such   as   for   evading   duty,   as alleged in the present case, under Section 135. 24. Hence,   the   contention   of   the   Petitioner   that   the   legislative intent is for settlement of all cases cannot be accepted.  9 25. Further,   Section   127B   lays   down   specific   conditions   for   its application,   and   the   proviso   provides   categories   of   goods wherein   settlement   cannot   be   undertaken.   This   makes   it evident   that   Section   127B   is   not   meant   to   be   applied   in   all categories of cases. Only in the following circumstances can an application be made to the settlement commission: a) the applicant has filed a bill of entry, or a shipping bill, in respect of the import or export of such goods, as the case  may be, and in relation to such bill of entry or shipping bill,  a show cause notice has been issued to him by the proper  officer;  (b) the additional amount of duty accepted by the applicant  in his application exceeds three lakh rupees;  (c) the applicant has paid the additional amount of customs  duty accepted by him along with interest due under section  28AB: and (d) the proviso to Section 127B is not attracted. 26. Furthermore,   as   discussed   above,   the   scheme   of   the   Act involves   payment   of   fines   and/or   imprisonment   for   offences enumerated   under   Chapter   XVI.   All   offences,   under   the   Act, cannot   be   permitted   to   go   before   the   Settlement   Commission under   Section   127B.   This   would   make   the   legislative   intent 10 behind the proviso to Section 127B, which bars certain goods, including those mentioned under Section 123 and goods which are   prohibited   under   the   Narcotic   Drugs   Psychotropic Substances   Act,   1985,   redundant.   Importantly ,   as   a consequence   of   such   an   interpretation   being   accepted,   the power to prohibit the importation of goods for the maintenance of   security   of   India   under   Section   11,   the   powers   of   arrest under  Section 105, the  power  to  summon  under  Section  108, confiscation   under   Section   111   and   offences   for   which imprisonment may be given from Sections 132 to Section 135 would   have   no   application,   thereby   making   the   respective legislative   provisions   in   effect,   null.   As   prayed   for   by   the Petitioner,   such   an   interpretation   would   allow   a   person importing goods without declaration to evade confiscation and criminal  prosecution  by  simply  taking  recourse under   Section 127B.   The   deterrent   of   criminal   prosecution   would   stand vitiated.   It   is   observed   that   the   Delhi   High   Court   has   taken   a   view contrary   to   that   taken   by   the   Bombay   High   Court   in   this regard. 11 26.1 In   Additional   Commissioner   of   Customs   v.   Ram   Niwas Verma,   2015   SCC   Online   Del   11542   (2­Judge   Bench   of the   Delhi   High   Court),   there   was   a   recovery   of   6452   grams of   gold   from   the   Respondent   therein.   He   was   crossing through   the   green   channel   but   was   intercepted   by   the Customs Officer. The Court stated that it is evident that no application for settlement can be made if it relates to goods to which S.123 applies.  26.2 In   Commissioner   of   Customs   v.   Avinash   Dawar   &   Anr., 2015   SCC   Online   Del   13875   (2­Judge   Bench   of   the   Delhi High   Court),   the   Settlement   Commission   held   that   since there   is   an   admission   of   illicit   importation,   shifting   of burden as contemplated under Section 123 of Customs Act, is   not   required.   The   Court,   while   setting   aside   this   order, stated   that   upon   a   plain   reading   of   the   provisions,   an application   under   Section   127B   could   not   be   made   in respect   of   'gold',   which   is   specifically   an   item   listed   under Section 123 applies.  26.3 The   decisions   in   Ram   Niwas   Verma   (Supra)   and   Avinash Dawar   (Supra) Commissioner   of 12 Customs   v.   Jyotsna   Chikersal   and   Anr.,   2019   SCC Online   Del   6574   (2­Judge   Bench   of   the   Delhi   High   Court)   recovery   of   6   gold   bars   was   made   from   the Respondent therein. No declaration or disclosure was made in   the   disembarkation   slip   or   the   customs   area.   The   Court held   that   a   conjoint   reading   of   these   two   provisions   clearly bears   out   that   the   jurisdiction   of   the   Commission   to   settle cases   involving   goods   referred   to   in   Section   123(2)   is excluded.  26.4 Significantly,   in   the   abovementioned   cases,   the   decision   of the   Delhi   High   Court   in   Commissioner   of   Customs   v. Ashok   Kumar   Jain,   2013   (292)   ELT   32   (Del),   wherein settlement application under 127B was allowed for watches recovered,   has   been   distinguished   on   the   ground   that   the said   decision   did   not   consider   Section123   and   the consequent bar therein.  26.5 It   is   also   pertinent   to   note   that   the   reasoning   in   Suresh Raheja (supra) that   case,   wherein   the   entire   baggage,   including   the watches, had become wet and affected by the floods.  13 27. In   the   present   case,   the   recovery   from   the   Petitioner   was   on crossing the green channel at the Delhi airport on 05.10.2022, wherein   the   officers   of   the   Investigating   Agency   apprehended him with dutiable goods, including watches of admitted foreign origin. Watches is one of the categories of goods mentioned in Section   123   of   the   Act.   Since   there   is   a   recovery   of   goods   to which Section 123 applies, the same is a bar for the Petitioner to   approach   the   Settlement   Commission.   The   matter,   in   my view, is fit to be remitted to the adjudicating authorities to take appropriate action, as per law.  Writ Jurisdiction under Article 32 28. I   have   considered   the   law   on   the   merits   of   the   dispute; however,   it   is   also  essential  to   consider  the   maintainability   of the   present   proceedings   since   the   Petitioner   has   invoked Article 32 of the Constitution of India. 29. It is well­settled law that this Court has wide powers when the violation   of   fundamental   rights   is   alleged   under   Article   32   of the Constitution. However, such intervention must be made on a   case­by­case   basis   and   only   when   a   fundamental   right question arises. 14 30. In   Northern   Corporation   v.   Union   of   India,   (1990)   4   SCC 239   (2­Judge   Bench),   this   Court   dealing   with   the   issue   of enforcement of the provisions of the Customs Act, in a petition filed   under   Article   32,   observed   that   the   Petitioner   has   no fundamental   right   as   such   to   clear   any   goods   imported   in accordance with the law. Furthermore, it was held that it could not   be   contended   that   enforcing   provisions   of   the   Act   would breach   fundamental   rights   which   entitle   a   citizen   to   seek recourse   to   Article   32   of   the   Constitution.   Therefore,   the   writ petition was rejected. 31. In  Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114  (2­ Judge   Bench),     the   imperative   nature   of   putting   forward   all facts and seeking an appropriate relief was reiterated.  32. The Petitioner approached this Court through Writ Petition No. 55/2023, praying only for the grant of a writ of mandamus for home­cooked   food   for   under­trial   prisoners   (This   question   is pending   consideration   by   this   Court   in   other   writ   petitions). Only   subsequently   was   an   Interlocutory   Application   filed seeking the relief concerning the merits of the present dispute, 15 i.e.direction   to   Respondent   No.   2   (Customs   Authority)   for settlement under Section 127B of the Customs Act, 1962.  33. This   approach   taken   by   the   Petitioner,   in   my   view,   is unwarranted   and   undesirable   if   not   malafide   for   not exhausting   the   appropriate   alternative   remedies.   Under   the garb   of   relief   purportedly   relating   to   fundamental   rights,   the relief   sought   in   the   instant   IA,   is     statutory   in   nature­   under the Act i.e. for an application of settlement to be decided. 34. Recourse to the fundamental right to approach this Court has to   be   permitted   in   cases   where   the   fundamental   rights   of   the Petitioner have been infringed. Herein, no such infringement is made out. No material has been brought on record displaying that   the   Customs   Department   has   proceeded   in   a   manner contravening the Constitutional mandate.  35. Therefore, given the  above,   the  present application  is liable to be dismissed on maintainability. It is also to be noted that the practice   of   circumventing   the   well­established   principles   for the   exercise   of   the   power   of   Article   32   should   not   be encouraged.  16 In   the   abovementioned   terms,   the   writ   petition,   along   with interlocutory applications, are disposed of.  ­­­­­­­­­­­­­­­­­­­­­­­­­­J. (SANJAY KAROL) TH  MAY, 2023 PLACE: NEW DELHI