While allowing the presence of a lawyer at a visible but not audible distance, the Bombay High Court (HC) clarified that the customs department could only seize and confiscate goods or movable property but not immovable property during the investigation stage.
In an order last week, the bench of Justice Sunil B Shukre and Justice Kamal Khata says, "...the seizure of the goods contemplated under Section 110 or Section 121 (of the customs act) is only of movable property which is not immovable property. Even otherwise, no immovable property can be seized and confiscated, though it can be attached and sold for making recovery of loss to or dues of the government as for example when done in exercise of the power under Section 142 (1) (c) (ii) of the customs act 1962, but that stage, however, is yet to reach in this case."
The HC also directed the customs department to de-seal the premises of the accused petitioner in the gold smuggling case.
Kalpesh Ghevarchand Jain and Gautam Ghevarchand Jain had filed the petition before the Bombay HC seeking the de-sealing of their premises and relief in the nature of recording his statement under Section 108 of the Customs Act in visible but not an audible distance of the advocate.
The bench opined that the prayer regarding the presence of an advocate is harmless in nature, and it is borne out of the apprehension of Mr Jain because he has been allegedly assaulted by customs officers in the past.
"It is this apprehension, which is required to be taken care of by us in the best possible manner while laying down the intent of ensuring transparency in the enquiry and apprising that this is what has been done by this court in several similar cases in the past," the HC says.
Regarding the second prayer about de-sealing the premises of the Jains, the bench says it finds that there is no power available with the customs authorities to seal the premises of any person, which are nothing but immovable property.
It says, "Under Section 110 or Section 121 of the customs act, what can be seized and confiscated is the goods or movable property. Section 110 and Section 121, respectively, empower the customs authorities to seize the goods liable to confiscation and confiscate the sale proceeds of the smuggled goods, which are sold by the person having knowledge or reasons to believe that the goods are smuggled goods. The word 'goods' has been defined in Section 2(22) of the Customs Act, 1962 and it includes vessels, aircraft and vehicles, stores, baggage, currency and negotiable instruments and any other kind of movable property."
While allowing the presence of the Jains' lawyer at a visible distance but not audible distance during interrogation, the HC rejected their plea for videography.
The bench also directed the customs department to remove the seal affixed to the premises of the Jains.