Kerala High Court awards landmark judgement

Sets aside confiscation and penalty imposed on Sri Lankan over right to wear gold chain There is no law preventing foreigners visiting India from wearing gold ornaments, the Kerala High Court has held, along with quashing the confiscation of a gold chain worn by a Sri Lankan tourist.

The ruling was issued by justice PN Ravindran after considering a petition filed by Vigneswaran Sethuraman of Colombo Road Galle in Sri Lanka.

On February 22nd, the petitioner had arrived at Cochin International Airport from Colombo wearing a gold chain weighing 10.5 sovereigns.

This was confiscated by Customs and a penalty of Rs 5,000 was imposed on him.

The confiscation and penalty was challenged by the Sri Lankan national in a petition filed to the high court through advocate Aswin Gopakumar.

No law in force in India was violated by the petitioner and, therefore, the confiscation of gold chain worn by him and the levying of penalty illegal, arbitrary, and unjust, it was argued.

Customs' counsel John Varghese contended that only personal effects, excluding jewellery, required for satisfying daily necessities of life can be carried by a passenger travelling to India as per Baggage Rules of 1998.

Possession of the chain was not declared as required by law and, therefore, it was liable to be confiscated, he argued.

Even assuming that a foreigner visiting India can wear gold ornaments, he/she cannot wear gold ornaments of 24 carat purity and can wear only 22-carat gold ornaments, Customs' counsel submitted.

After hearing both sides, the court held that the petitioner was not bound to declare the gold chain worn by him, as required under Customs Act of 1962, as it was not carried in his baggage. The court also ruled against confiscation of the gold chain, under section 111 of the Act. Though Customs department argued that a foreigner cannot import even a single gram of gold free of duty or on payment of duty to India, no law that imposes such prohibition is cited, the court pointed out. No provision in the Act, the Baggage Rules, or any other law was brought to the court's notice.

"In the absence of any prohibition imposed by the Act or any other law to the effect that a foreign tourist arriving in India cannot wear gold ornaments on his person or wear gold ornaments of 24 carat purity, clause (d) of section 111 could not have been invoked to confiscate the gold chain worn by the petitioner," the court held.

Setting aside the confiscation and the penalty, the court held, "The Customs Act, 1962 or the Baggage Rules, 1998 do not stipulate that a foreign tourist entering India cannot wear gold ornaments on his person.

The Customs Act, 1962 and the Baggage Rules, 1998 do not provide sufficient warning to foreign tourists entering India that wearing a gold chain is prohibited.

The Act and the Rules do not even remotely indicate that a foreign tourist entering India cannot wear a gold chain on his person. In other words, foreign tourists entering India are in a boundless sea of uncertainty as to whether it is prohibited or not."

Criticizing the lack of clarity in the law, the court observed in the judgment, "As the Customs Act, 1962 and the rules framed there under contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess."

Courtesy: Times of India