2010 (6) TMI 767 - HC - Customs

Summary

Issues Involved:
1. Non-application of mind regarding the nature of the contraband (Ketamine vs. Ketamine Hydrochloride).
2. Denial of reasonable opportunity to make an effective representation due to non-supply of documents.
3. Discrepancy in the number of bundles found in the container.

Summary:

Issue 1: Non-application of mind regarding the nature of the contraband (Ketamine vs. Ketamine Hydrochloride)

The detaining authority failed to consider whether the contraband was Ketamine or Ketamine Hydrochloride, which are different substances. The arrest memos and Chemical Analysis Report referred to the contraband inconsistently as Ketamine and Ketamine Hydrochloride. The detaining authority did not apply its mind to this distinction, which is crucial since the Notification No. 67(RE-2007)/2004-2009 only prohibits the export of Ketamine, not Ketamine Hydrochloride. This non-application of mind vitiates the detention orders.

Issue 2: Denial of reasonable opportunity to make an effective representation due to non-supply of documents

The detenus were not provided with a copy of the shipping bill No.3358666 dated 29.04.2009, which was a vital document referred to and relied upon by the detaining authority. This non-supply of documents prejudiced the detenus, preventing them from making an effective representation against the detention orders. The court referenced the Supreme Court judgment in Yumnam Mangibabu Singh v. State of Manipur, which held that non-furnishing of relied upon documents breaches constitutional safeguards.

Issue 3: Discrepancy in the number of bundles found in the container

There was a discrepancy between the number of bundles declared in the shipping bill (460) and the number found in the container (444). The detaining authority did not address this discrepancy or seek clarification, which indicates non-application of mind. The customs officials present during the loading were not examined, and their statements were not considered, further prejudicing the detenus.

Conclusion:

For the reasons stated above, the court found that the detention orders were vitiated due to non-application of mind and denial of reasonable opportunity to the detenus. Consequently, the Habeas Corpus Petitions were allowed, and the detention orders dated 26.06.2009 were set aside, ordering the immediate release of the detenus unless required in connection with any other case.