Dr. Ar. Lakshmanan, C.J.
1. Heard Sri G. Mohan Rao, the learned Counsel for the petitioners and Sri C.V. Ramulu, the learned standing Counsel for the Central Government appearing for the respondent.
2. Though the writ petition was filed by Dr. Diwakar R. Kattar and his wife Mrs. Aruna Kattar, however, the same is being prosecuted only by the 2nd petitioner-wife. The writ petition was filed to call for the records pertaining to the issue of order in C. No. S/56/TR/49/2000 /ICD, dated 26-6-2001 as affirmed by the Commissioner (Appeals) vide his order dated 26-11-2001 and to set aside the same as illegal and violative of Article 14 of the Constitution of India and to direct the respondent to release the Remington gun along with 10 sluggers and 152 cartridges of 22 bore to the 2nd petitioner.
3. The 1st petitioner along with his wife-the 2nd petitioner and their children were in USA for the last 20 years. The 1st petitioner is a doctor by profession and worked in USA in various hospitals for the last 20 years. They have decided to return to India for permanent settlement. They had shipped their personal effects and household goods to India in the month of June, 2000 which include the goods belonging to both wife and the husband. Dr. Diwakar R. Kattar had returned to India in the month of July, 2000 but the 2nd petitioner could not accompany him due to medical reasons and her journey to India was postponed. The 1st petitioner filed baggage declaration form No. 49 of 2000 on 12-7-2000 before the respondent to clear the personal goods of both his and of the 2nd petitioner and also their house-hold goods seeking benefit of Rule 8 of Baggage Rules, 1988. The baggage declaration was filed on behalf of both as permitted by the respondent. The baggage included one revolver of the 1st petitioner and the Remington gun of the 2nd petitioner. According to the petitioners the revolver was for personal use of the 1st petitioner whereas the Remington gun was for the personal use of the 2nd petitioner which was purchased in the year 1992 as she stays at home for most of the time and was using the gun for personal security. According to the petitioners, the Remington gun is the personal effect of the 2nd petitioner and the same is imported in unaccompanied baggage. Before return to India she had sent a letter to the Deputy Commissioner of Customs, ICD stating the reasons for delay in her returning to India and to postpone the proceedings with regard to her gun. In her letter she stated that the gun was in her possession and use abroad and she had imported the same for personal use. The respondent had asked the 1st petitioner to deposit the duty, fine and penalty for both the revolver and the gun. Accordingly the 1st petitioner had deposited duty of Rs. 22,828/-, fine of Rs. 3,500/- and penalty of Rs. 2,500/-on 15-7-2000. According to the petitioners the duty, fine and penalty were collected for both revolver and the gun. However, at the time of release of the weapons the Superintendent of Customs objected stating that both the weapons cannot be released to one person and licence of the 2nd petitioner is required for release of the gun. Therefore, the revolver imported by the 1st petitioner was released on the same day and the was told that the gun would be released to the 2nd petitioner on production of licence. According to the 2nd petitioner, no licence was required for possession and use of gun in USA, but since the same is required in India, after coming to India in October, 2000 she obtained the arms licence and submitted a letter on 14-12-2000 to the respondent for release of the weapon to her. In the letter it was stated that due to health reasons she could not accompany the 1st petitioner and her absence at the time of arrival of the weapon may be condoned. In the letter it was also pointed that duty with regard to her gun was already paid when the revolver belonging to her husband was released. However, after receipt of the letter the respondent stated that only one weapon could be allowed for a family and therefore the gun cannot be released as revolver had already been released. A show-cause notice was issued to the 2nd petitioner on 11-1-2001 stating as to why the firearm seized should not be confiscated for having been imported in contravention of para 4.5 of the Exim policy read with Section 3 of the Foreign Trade Act, 1992 and Sections 11 and 111(d) of the Customs Act, 1962. A reply was submitted in which it was pointed out that the gun belongs to the 2nd petitioner and it was purchased more than 5 years back for her personal use and protection. It was also stated that she was holding valid licence for possession of the weapon and she satisfied all the conditions prescribed under the Ministry of Finance letter dated 5-1-1988 and that duty was also paid and therefore it was requested to release the gun without any delay. Instead of releasing the gun, the 2nd petitioner was called for personal hearing on 18-5-2001 and during the personal hearing she submitted that the gun belongs to her and it was in her possession and use since 1992 and it is imported for her use.
4. It is submitted that the respondent, after considering the oral and written submission, passed an order on 26-6-2001 confiscating the gun along with 10 sluggers and 152 cartridges under Section 111(d) of the Customs Act on the ground that the import of the same is in contravention of the provisions of Section 11 of the Customs Act read with para 4.5 of Exim policy 1997-2002 and Section 3 of the Foreign Trade Act. Against the said order dated 26-6-2001 an appeal was filed before the Commissioner (Appeals) stating that the baggage declaration form No. 49 of 2000 was filed by the 1st petitioner on behalf of both the petitioners and under Rule 8 of the Baggage Rules each person is entitled for the benefit of the Baggage Rules and not family and under the Ministry of Finance circular dated 5-1-1988 each person who is coming to India on transfer of residence is entitled to import one fire arm on satisfying the conditions stated therein and the 2nd petitioner satisfied all the conditions. It is also submitted that the weapon was in the use and possession of the 2nd petitioner for the last 7 years and an affidavit was also submitted to support the same. It is further submitted that the personal effects are exempted as per Rule 3(i)(h) of Foreign Trade (Exemption from Application of Rules) Order, 1983 and therefore one fire arm for personal use as part of baggage on transfer of residence is allowed as per para 5.6 of the import policy and the same is exempted from para 4.5 of the Exim policy. It was also contended that as per Section 125 of the Customs Act the 2nd petitioner is entitled for release of the gun even on payment of fine and penalty as provided. The appellate authority passed the following order:
I have examined the position. Ministry of Finance letter F. No. 497/57/87/Cus.- VI, dated 5-1-1988, which regulates the import of firearm states as under:
'Import of fire arms is strictly prohibited. However, import of one fire arm has been allowed to persons bringing their effects on transfer of their residence subject to the condition that the same was in the possession and used abroad for a minimum period of one year by the passenger and also subject to the condition that such fire arm, after clearance, shall not be sold, loaned, transferred or otherwise parted with for consideration or otherwise, during the life time of such person. It is however clarified that such fire arm shall be leviable to duty @ 150% ad valorem in view of exclusion under Rule 8 read with Appendix F of the Baggage Rules, 1998 and para 2 of Notification No. 136/90- Customs, dated 20-3-1990.
From the plain reading of the said letter dated 5-1-1988 it is amply clear that the import of fire arms is strictly prohibited and that import of one fire arm only has been allowed to persons bringing their effects on transfer of their residence. The word used is 'persons' (plural) and not 'person' (singular). Further, the word used is 'their' (plural) and not 'his/her' (singular). Thus, it is a deliberate policy of the Government of India to allow import of one fire arm only to persons bringing their effects on transfer of their residence. I find that the appellant and her husband Dr. Diwakar R. Kattar on their return to India brought two fire arms along with the cartridges/slugs under unaccompanied baggage and claimed the transfer of residence in respect of the same as personal effects. The appellant has deposited duty of Rs. 22,828/-, fine of Rs. 3,500/- and penalty of Rs. 2,500/- on 15-7-2000 for both the revolver and the gun and the ammunition. On doing so, one revolver and 50 cartridges of .22 bore imported by Dr. Diwakar R. Kattar have been released to him on payment of appropriate duty, redemption fine and penalty. However, the gun along with 10 sluggers and 152 cartridges of .22 bore imported by Mrs. Aruna R Kattar were confiscated vide the impugned order passed by the Deputy Commissioner. The action of the Department in releasing revolver and 50 cartridges of .22 bore to Dr. Diwakar R. Kattar on payment of appropriate duty, redemption fine and penalty and confiscating the gun along with 10 sluggers and 152 cartridges of .22 bore imported by Mrs. Aruna R Kattar is in consonance with the policy of the Government of India as laid down in the Ministry of Finance letter F No. 497/57/87/Cus.-VI, dated 5-1-1988.
5. The present writ petition was filed against the order dated 26-11-2001 confirming the order dated 26-6-2001 passed by the respondent
6. A counter-affidavit was filed by the Deputy Commissioner of Customs, ICD, Hyderabad-2. It is submitted that the claim of the 2nd petitioner for the single bore Remington gun with 10 sluggers and 152 cartridges belonging to her is not substantiated by showing any proof regarding the ownership for the said firearm and no purchase invoice has been produced by the petitioner for the said fire arm. It is also submitted that the fire arm was seized for having been imported in contravention of para 4.5 of the Exim policy 1997-2002 and Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 and Sections 11 and 111(d) of the Customs Act and further as per the Ministry of Finance letter dated 5-1-1988 in F.497/57/87/CUS.-VI, only one fire arm is permitted to be brought on transfer of residence. However, the petitioners have brought two fire arms on transfer of residence which is violative of the provisions of the Customs Act.
7. Heard the learned Counsel appearing on either side and perused the entire pleadings and the orders passed by both the authorities. Our attention was also drawn to the Ministry of Finance order No. 497/57/87/CUS/VI, dated 5-1-1988 which permits bringing of two fire arms wherein it is stated thus:
Import of fire arms is strictly prohibited. However, persons transferring effects on transfer of their residence are entitled to import one fire arm subject to the condition that the same was in the possession and use abroad for a minimum period of one year by the passenger and also subject to the condition that such fire arm, after clearance, shall not be sold, loaned, transferred or otherwise parted with for consideration or otherwise, during the life time of such person.
8. A reading of the above letter dated 5-1-1988 would only show that each person is entitled to import one fire arm on transfer of residence. Since the petitioners have sought to import only one fire arm each which was owned by each of them and in their possession for more than 8 years prior to their return to India and as per Rule 8 of the Baggage Rules, 1988 each person is entitled to the benefit of bringing one fire arm on transfer of residence, in our opinion, each petitioner is entitled to import one gun each, however, on payment of duty, fine and penalty if imposed. In the instant case the duty, fine and penalty were collected by the respondent, according to the petitioners, in respect of both the weapons. According to them para 4.5 of the exim policy is not applicable but only para 5.6 of the exim policy read with ITC aligned classification chapter 98.03 and Rule 3(1)(i)(h) of the Foreign Trade (Exemption from application of rules in certain cases) Order, 1993 is applicable. The petitioners further submit that as per the above provisions read with the letter dated 5-1-1988 each of them in entitled for import of one fire arm.
9. In the instant case the authorities have thought it fit to impose fine and penalty on the fire arm belonging to the 1st petitioner and the second fire arm was ordered for absolute confiscation as per the provisions of the Customs Act. In our opinion, the order passed by the authorities in confiscating the gun brought by the 2nd petitioner is absolutely incorrect. In our view the authorities ought to have applied the provisions of Section 125 of the Customs Act in the case on hand. Since the gun is imported for personal use the question of unscrupulous utilization of the weapon does not arise. In Hargovind Das K. Joshi v. Collector of Customs, : 1992(61)ELT172(SC) , the Supreme Court has held that under Section 125 of the Customs Act the authority can give an option to the importer to get the goods released on payment of fine. Under such circumstances both the authorities ought to have given option to the importer viz., the 2nd petitioner herein to get the goods released on payment of fine in lieu of confiscation. In the following cases the Courts have ordered release of the fire arm on payment of redemption fine in lieu of confiscation.
Swadesh Ranjan Sarkar v. Assistant Collector of Customs, 1993 (64) ELT 190 (Cal), R.K. Dwivedi v. Collector of Customs, New Delhi, 1999 (107) ELT 724, Nirmal Singh v. Commissioner of Customs, New Delhi, 1998 (101) ELT 597.
10. In our view the interpretation of the word 'persons' in the Ministry of Finance letter dated 5-1-1988 by the Commissioner (Appeals) is contrary to the principles governing interpretation of statutes. The word 'persons' is used to mean the natural persons who are coming to India from time to time and the same is also used as opposed to artificial persons since the benefit of transfer of residence is applicable only to natural persons. The interpretation given by the authorities that since the word 'persons' is plural and not singular it is the policy of the Government of India to allow import of one fire arm only to persons bringing their personal effects on transfer of residence is neither logical and reasonable nor is in accordance with the policy. The gun is a personal effect and licence would also be given to a person and not to a group of persons. If only one person is coming from abroad can it be said that such person is not entitled to import a gun because he does not come under the expression 'persons'? The word used is 'persons' and not 'family'. The interpretation placed by the Commissioner (Appeals) clearly amounts to replacing the word 'persons' with 'family'. Therefore, in our view the interpretation adopted by the Commissioner (Appeals) is not correct. In the eye of law both the husband and wife are independent persons and therefore the 2nd petitioner is entitled for release of her weapon in terms of the Ministry of Finance letter. The Ministry's letter dated 5-1-1988 has to be read along with Baggage Rules. Under the Baggage Rules, each person is entitled for the concession granted. Rules 3, 4 and Appendices A and B of the Baggage Rules start with the expression 'passengers'. However, the benefit of the rule is extended to each passenger. In Rule 5 the word 'professionals' is used but the same is extended to each professional returning to India. In the same way the word 'persons' is used in the Ministry's letter dated 5-1-1988. The said letter has to be read along with Rule 8 of the Baggage Rules which are applicable to persons transferring their residence to India and under it each person is entitled to the benefit of the rule. In other words, the word 'persons' has to be understood in the fight of the object and purpose for which the letter is issued along with other words used in the letter. As per the letter dated 5-1-1988 the import of gun is permitted subject to the conditions that the same should be in the possession and use abroad for a minimum period of one year by the passenger and also subject to the condition that such fire arm, after clearance, shall not be sold, loaned, transferred - or otherwise parted with for consideration or otherwise during the life time of such person. Therefore, form the above it is clear that the word 'persons' has to be read along with the expression 'passenger and such person' used in the letter. This amply makes it clear that it refers to person coming from abroad on transfer of residence and not family. As per Section 3(42) of the General Clauses act the expression 'person' includes company, association or body of individuals. Therefore, it is clear that the word 'person' always includes 'persons'. In law it has always been interpreted by the Courts that person includes both natural and juridical person and body of individuals. Hence, confiscation of the weapon on the grounds that both the petitioners together are entitled to only one weapon is illegal, arbitrary and contrary to Article 14. The 2nd petitioner has also filed an affidavit before the Commissioner that she purchased the gun in the year 1992 for her use and protection and since 1992 the same is in her possession. This affidavit is also sworn in and signed by her in the presence of a notary at Hyderabad on 28-11-2001. Another affidavit was also filed by a neighbour of the 2nd petitioner living in USA which reads as follows:
This letter is in testimony of Mrs. Aruna Kattar and Dr. Divakar Kattar. My husband and I have known the Kattars, our neighbours and good friends since 1986. I have witnessed Mrs. Aruna Kattar target shooting with her single barrel Remington 12 bore gun numerous times. To our dismay, the Kattars have moved to India in the summer of 2000. Mrs. Aruna Kattar decided to import her gun with her to India for the purpose of self-protection. Please call me with any questions or clarifications.
11. A xerox copy of the receipt with regard to purchase of the gun has also been placed before us at the time of hearing. We are, therefore, of the opinion that the 2nd petitioner is entitled to release of the gun on payment of fine and penalty as provided in Section 125 of the Customs Act. The authorities had imposed a sum of Rs. 3,500/-by way of fine and Rs. 2,500/- by way of penalty for releasing the weapon of the 1st petitioner.
12. Therefore, we direct the respondent to adopt the same yardstick in respect of the 2nd petitioner also and collect fine of Rs. 3,500/- and penalty of Rs. 2,500/- totalling Rs. 6,000/- and release the Remington gun along with 10 sluggers and 152 cartridges to the 2nd petitioner within a period of one week from the date of payment of fine and penalty. The writ petition is accordingly disposed of.