2007 (8) TMI 703 - HC - Customs

Detention orders - Held that - It is pertinent to note that in an affidavit, the detaining authority has also stated that in order to facilitate the smuggling of goods, the detenu has taken active part by procuring the Import Export Code of one Yogesh Merchant. It is clear, therefore, that the detenu can be said to have abetted the smuggling of goods but it cannot be said that he was concerned with the smuggling of goods. We are, therefore, of the considered opinion that the impugned order of detention suffers from non-application of mind and is contrary to law. It is illegal and must be set aside. Hence, the impugned order of detention is quashed and set aside.

Summary

Issues Involved:
1. Validity of detention order under Section 3(1) of the COFEPOSA Act.
2. Whether the detenu's actions constituted smuggling or merely abetting smuggling.
3. Application of legal precedents and definitions related to smuggling and abetment.

Issue-wise Detailed Analysis:

1. Validity of Detention Order under Section 3(1) of the COFEPOSA Act:
The detenu, a Custom House Agent, was detained under an order dated 16-8-2006 issued by the Principal Secretary, Home Department, Government of Maharashtra, under Section 3(1) of the COFEPOSA Act to prevent future smuggling activities. The grounds of detention and supporting material were served on the detenu on 2-11-2006. The detenu was accused of facilitating the import of consignments misdeclared as 'plastic parts of toys' but actually containing analog watch movements.

2. Whether the Detenu's Actions Constituted Smuggling or Merely Abetting Smuggling:
The detenu facilitated the smuggling by procuring Import Export Codes (IEC) for Umesh Shetty, who imported the consignments. The detenu's counsel argued that the detenu only facilitated the clearance of goods and was not involved in the actual smuggling, which originated from Hong Kong. The detaining authority's affidavit indicated that the detenu actively participated by procuring the IEC, thus facilitating smuggling. The detenu's counsel contended that this constituted abetment under Section 107 of the Indian Penal Code, not smuggling.

3. Application of Legal Precedents and Definitions:
The court examined the definition of "smuggling" under Section 2(39) of the Customs Act and Section 2(e) of the COFEPOSA Act. The Supreme Court's judgment in Narendra Purshotam Umrao v. B.B. Gujral was considered, where it was held that the term "smuggling" is broad enough to include abetment. However, the court noted that in the present case, the detenu's role was limited to facilitating the import by procuring IECs and clearing the goods, not the actual smuggling.

Detailed Analysis:
- The detenu's involvement was limited to procuring IECs from Yogesh Merchant and clearing the goods imported by Umesh Shetty, who misdeclared the goods as plastic toy parts.
- The court found that the detenu's actions did not constitute "smuggling" as defined under Section 2(39) of the Customs Act and Section 2(e) of the COFEPOSA Act, but rather abetment.
- The court referenced the judgment in Mahinder Singh Balwant Singh Oberai v. The State of Maharashtra, where a similar role of procuring IECs was considered abetment, not smuggling.
- The court also referenced Rajaram Singh v. State of Maharashtra, where the detenu's role in facilitating smuggling was deemed abetment.

Conclusion:
The court concluded that the detenu's activities amounted to abetment of smuggling, not actual smuggling. The detention order was found to suffer from non-application of mind and was contrary to law. The order of detention dated 16-8-2006 was quashed and set aside, and the detenu was ordered to be released forthwith unless required in any other case. The petition was disposed of accordingly.