2010 (6) TMI 630 - HC - Customs

Confiscation Order of detention smuggeled goods - contended that they had heard from a third person that the High Speed Diesel was imported but the statement of any of these third persons was not recorded, there was no statement recorded under Section 108 of the Customs Act which would support the basic requirement that the HSD confiscated was smuggled - When there is no material to point out that the HSD was smuggled, it could not be said that the detenu had engaged in smuggling of goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping the smuggled goods and, therefore, there was no material to invoke the powers under Section 3(1) of the COFEPOSA Act. The impugned order of detention is, therefore, unsustainable in the absence of any such material that the HSD was smuggled, petition succeeds and the same is allowed. The impugned order of detention is quashed and set aside and it is directed to release the detenu

Summary

Issues:
Challenge to detention order under COFEPOSA Act based on lack of evidence of smuggling and procedural irregularities.

Detailed Analysis:

1. Detention Order Challenge:
The petitioner challenged the detention order passed under Section 3(1) of the COFEPOSA Act, alleging lack of evidence to support the grounds for detention. The petitioner, brother of the detenu, sought a writ of habeas corpus for the release of the detenu, who was served the detention order on 17-8-2009.

2. Grounds for Detention:
The detention order was issued with the objective of preventing the detenu from engaging in smuggling activities, abetting smuggling, transporting smuggled goods, and harboring persons involved in smuggling. The order cited specific clauses of Section 111 of the Customs Act, 1962, related to confiscation of improperly imported goods.

3. Incident Details:
The incident leading to the detention involved the interception of tugs carrying High Speed Diesel (HSD) in Indian Custom Waters. The tugs were examined, and a significant quantity of HSD was found without proper documentation. The detenu, identified as the owner of one of the tugs, admitted to the presence of HSD but failed to provide supporting documents.

4. Legal Basis for Detention:
The detention order was based on the detenu's alleged involvement in smuggling activities, supported by statements and actions indicating a propensity for such offenses. The detaining authority considered the detenu a habitual offender with potential to commit future smuggling acts.

5. Legal Arguments and Affidavits:
The petitioner's counsel raised multiple grounds challenging the detention order, including the absence of evidence of smuggling, the location of the incident in Indian waters, lack of proof of foreign purchase or transportation, and absence of proof of detenu's habitual offender status. Affidavits-in-reply were filed by relevant authorities.

6. Legal Analysis of COFEPOSA Act:
The judgment delved into the legal provisions of the COFEPOSA Act, emphasizing the requirement of evidence to support preventive detention under Section 3(1). Reference was made to relevant sections of the Customs Act, particularly Section 111, defining smuggling and specifying conditions for confiscation of improperly imported goods.

7. Judicial Interpretation and Precedent:
The petitioner's counsel relied on a Supreme Court decision to argue that the standard of proof for preventive detention must be high and hearsay evidence is insufficient. The absence of concrete evidence of smuggling rendered the detention order unsustainable.

8. Court's Decision:
The Court found that there was no material to establish that the confiscated HSD was smuggled, a fundamental requirement for invoking COFEPOSA Act provisions. The detention order lacked the necessary evidence to justify preventive detention, leading to its quashing. The petition succeeded, and the detenu was directed to be released immediately unless required in another offense.