Vehicle Cannot Be Seized By Customs On Mere Apprehension That It May Be Used For Transporting Smuggled Goods: Kerala High Court

The Kerala High Court on Tuesday held that a vehicle cannot be seized by customs on an apprehension that it may be used as a means of transporting smuggled goods. 

Justice Bechu Kurian Thomas observed that under Section 115 of the Customs Act, 1962, which provides for 'Confiscation of conveyances', the power of confiscation can only arise if the vehicle was actually used or is being used for smuggling goods and not for apprehended use or future use.

The Court was of the opinion that the words ‘used as a means of transport’ in section 115(2) of the Act can only be interpreted as ‘already used as a means of transport’ or as ‘presently being used as a means of transport’, and a possible 'future use' could not be brought within its purview. 

"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. Such conferment of vast and unguided powers will even fall foul of Article 14 of the Constitution of India," the Court observed. 

As per the factual matrix, the petitioner's car which he had allegedly handed over to a family friend, was seized from the parking area of the Cochin International Airport (CIAL) by Customs Authorities. It was alleged that two persons had travelled in the car to the airport to receive a passenger carrying 931.73 gms of gold, which was apparently smuggled into the country. The petitioner thereafter, filed an application for the release of the car. It was averred by the petitioner that the vehicle in question had not been used as a means of transport or as a carriage for smuggled goods. The petitioner thus submitted that the seizure of his car was illegal. 

The Court noted that in the present case, at the time of interception, there had not been any gold inside the vehicle. It observed that the Department's case was only that the smuggled gold was to be collected at the parking area of CIAL. The Court thus noted that the smuggled gold had not entered the car at any point in time, nor did the petitioner, as the owner of the vehicle, have any involvement in smuggling. 

The Court thus proceeded to peruse the provisions of the Customs Act pertaining to search and seizure of vehicle. 

It noted that Section 106 of the Act confers power upon the Department only 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 good. The Court laid down that the power to search is distinct from the power to seize, and the power to search does not confer a right to seize the vehicle on suspicion.

The Court added that Section 110 which stipulates 'Seizure of goods, documents and things' only vests the right to seize goods only when such goods are liable for confiscation.

The Court went on to state that as per Section 115(2) of the Act, a vehicle would also be subject to confiscation, but only if it was ‘used as a means of transport’ in the smuggling of goods or in the carriage of any smuggled goods.

"The admitted case of the Department is that the smuggled goods had never found a place inside the car, nor had the person carrying the smuggled goods entered the car, either in the past or in the present. The Department alleges that two persons came to collect the smuggled goods at the Airport and that they were intercepted even before the gold was collected by them. The said circumstance only indicates a possible future use of the car as a means of transport of the smuggled goods," the Court observed. 

Thus, finding that the possibility for future use of the vehicle as a means of transport of smuggled goods cannot be brought within the purview of the power of confiscation, the Court allowed the present writ petition. It held that the seizure of the vehicle in question was illegal, and directed its release. 

The petitioner was represented by Advocates Babu S. Nair and Smitha Babu. Standing Counsel for Customs Department A.K. Preetha appeared on behalf of the respondent. 

Case Title: Safir P. v. Commissioner of Customs (Preventive) 

Citation: 2023 LiveLaw (Ker) 354

Case Number: W.P.(Crl) No.259 of 2023

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