The Revenue’s objection was procedural: a Customs order is appealable, so the importer had no business coming to the writ court. The High Court held that the alternative-remedy rule is one of discretion, not an absolute bar, and that it does not apply where the authority is said to have created a prohibition out of subjective morality rather than any identified law. The petition was held maintainable and will be heard on merits.
Kolkata: The Calcutta High Court has held maintainable a writ petition challenging a Customs order that treated imported goods as “prohibited goods”, rejecting the Revenue’s objection that the importer ought to have pursued the statutory appeal, and observing that where a statutory authority acts outside the boundaries of objective law and enters the realm of subjective morality, thereby affecting a citizen’s fundamental right to trade, the High Court will not shut its doors [M/s. Pracha Aalloy Private Limited v. Union of India and Others].
Justice Smita Das De held the petition maintainable at the threshold, directed the respondents to file an affidavit, and listed the matter for hearing, while making clear that no opinion was being expressed on the merits.
The dispute
The petitioner, an importer, challenged an order of July 2026 passed by a Customs authority under Article 226 of the Constitution. The underlying question, as framed by the Court, was whether describing goods as “obscene adult sex toys” and invoking Section 292 of the Indian Penal Code, 1860, without identifying any specific statutory or notification-based prohibition, could by itself render the goods “prohibited goods” under Section 11 of the Customs Act, 1962, and support confiscation under Section 111(m) of that Act.
Before the merits of that question could be reached, the Court had to decide whether the writ petition was maintainable at all.
The Revenue’s objection
Counsel for the Revenue raised a strong preliminary objection. The Customs Act, it was submitted, is a self-contained code providing a complete machinery for departmental appeals: the impugned order is appealable to the Commissioner of Customs (Appeals) under Section 128, on payment of the statutory pre-deposit under Section 129E. Having an efficacious alternative remedy, the argument ran, the importer could not directly invoke the extraordinary writ jurisdiction.
The Revenue relied on the Supreme Court’s decision in Radha Krishan Industries v. State of Himachal Pradesh, which sets out the principles governing alternative remedy, including that a High Court has discretion not to entertain a writ petition where an effective alternative remedy exists, subject to defined exceptions. It also cited Securities and Exchange Board of India v. Mangalore Stock Exchange for the proposition that maintainability must be decided at the threshold before the merits are considered.
The importer’s answer
For the petitioner, it was argued that the existence of an alternative remedy does not oust the writ jurisdiction; it is a self-imposed rule of judicial discretion governing entertainability, not a jurisdictional bar. Relying on Whirlpool Corporation v. Registrar of Trade Marks and Godrej Sara Lee v. Excise and Taxation Officer, counsel submitted that a writ petition is maintainable despite a statutory remedy where the impugned order violates fundamental rights or the principles of natural justice, or suffers from a patent lack of jurisdiction.
The core of the submission was that the adjudicating authority had created what the petitioner called an unlegislated category of prohibition out of subjective moral bias, which, if correct, would make the order a nullity, and that similar orders were being passed across various custom houses.
What the Court held
The Court accepted that the availability of an alternative remedy is ordinarily a ground for restraint under Article 226, but reiterated that it is not an absolute bar. It found that the petitioner had raised a specific and substantial question: whether the description of goods as “obscene adult sex toys” and the invocation of Section 292 IPC, without identifying any specific statutory or notification-based prohibition, could by themselves render the goods prohibited under Section 11 of the Customs Act.
On that footing, the Court held the preliminary objection must fail, framing the principle in terms that give the order its edge:
“…when a statutory authority acts completely outside the boundaries of objective law and enters the realm of subjective morality thereby severely affecting a citizen’s fundamental right to trade, the High Court will not shut its doors.”
The Court added that the case involved what it described as systematic misrepresentation of trade regulations across various custom houses, which called for an authoritative judicial pronouncement rather than a routine departmental appeal, and that the precise statutory basis for the alleged prohibition, as well as for invoking Section 111(m), required consideration.
Holding the petition maintainable, the Court directed the respondents to file a short affidavit-in-opposition within two weeks, with a reply thereafter, and listed the matter for hearing on October 9. It expressly refrained from expressing any opinion on the merits.
Why it matters
The order decides a gateway question, not the dispute, but the gateway is where cases of this kind are usually won or lost. Tax and customs statutes are self-contained codes, and courts routinely send litigants back to the departmental appeal, which in customs matters requires a pre-deposit before it can even be pursued. The importer’s route past that was to characterise the order not as a wrong decision within jurisdiction, correctable on appeal, but as an act outside jurisdiction altogether, a prohibition invented without law. The Court’s acceptance of that characterisation, at least well enough to hear the case, is the significant step.
The distinction the Court drew is a familiar but important one. An authority that misapplies a prohibition that exists is exercising its jurisdiction, perhaps wrongly, and the remedy is appeal. An authority that treats goods as prohibited without pointing to any law that prohibits them is, on the petitioner’s case, not exercising a jurisdiction it has at all, and that is the classic ground on which the writ court retains its power despite an alternative remedy. Whether that is in fact what happened here is precisely what the merits hearing will decide.
The larger question the case raises, and which the Court has kept open, is the limit of Section 11 read with the obscenity provision. Section 292 of the IPC and its successor in the Bharatiya Nyaya Sanhita criminalise obscene articles, and Section 11 of the Customs Act empowers the Central Government to prohibit imports for specified purposes, including the maintenance of public order and standards of decency or morality. The petitioner’s contention is that a customs officer cannot bridge the two by his own moral assessment in the absence of a notification actually prohibiting the goods. That is a question of real commercial consequence for a legal trade, and the Court’s observation about similar orders across custom houses suggests it sees the issue as recurring rather than isolated.
Nothing has yet been decided on whether the goods are prohibited, whether the confiscation was valid, or whether the officer acted without jurisdiction. The Court has held only that the question is fit to be heard in a writ petition.
Case Title: M/s. Pracha Aalloy Private Limited v. Union of India and Others [WPO 370 of 2026]
Bench: Justice Smita Das De, High Court at Calcutta (Constitutional Writ Jurisdiction, Original Side)
Date of Order: September 14, 2026 | Next Listed: October 9, 2026
Appearances: Advocates Gunjan Bahety, Dhiraj Tiwari and Khushal Mittal for the petitioner. Advocates Kaushik Dey and Tapan Bhanja for the Customs authority. Advocates Amit Sharma and Abhishek Kumar Agrahari for the Union of India.
Status: Writ petition held maintainable at the threshold. Merits to be heard. No opinion expressed on the merits.