2008 (8) TMI 12 - HC - Customs

COFEPOSA - Import of baggage valuation of the imported goods not accepted preventive detention - In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities - prosecution under the Customs Act is not synonymous with preventive detention

Issues Involved:
1. Legitimacy of preventive detention under COFEPOSA.
2. Procedural compliance by the Customs Department.
3. Mis-declaration and confiscation under the Customs Act.
4. Inference from the Detenu's travel history.
5. Comparison of Grounds of Detention with the Complaint.
6. Likelihood of the Detenu being released on bail.
7. Delay in passing the Detention Order.
8. Disposal of the Detenu's representation.
9. Compliance with constitutional safeguards.

Detailed Analysis:

1. Legitimacy of Preventive Detention under COFEPOSA:
The Petitioner challenged the preventive detention of his brother under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The Detenu was detained based on an order dated 18.2.2008, accompanied by grounds of the same date.

2. Procedural Compliance by the Customs Department:
The Detenu was found carrying goods worth much more than declared, leading to a duty assessment of Rupees Nine Lac Eighty Thousand and Fifty instead of the declared Rupees Sixty Thousand. The Detenu's inability to produce documents evidencing the price paid for the goods and the incorrect declaration were highlighted.

3. Mis-declaration and Confiscation under the Customs Act:
The substantial mis-declaration by the Detenu rendered the goods liable for confiscation under Section 111(l) of the Customs Act. The Court noted that Mr. Jain's reference to Section 111(m) concerning the valuation of imported goods was incorrect.

4. Inference from the Detenu's Travel History:
The Department inferred from the Detenu's fifty-three journeys to Thailand and Hong Kong that his activities were suspicious and of a smuggling nature. However, the Court noted that preventive detention based on suspicion alone might not meet the necessary legal tests.

5. Comparison of Grounds of Detention with the Complaint:
The Petitioner argued that the Grounds of Detention were verbatim the same as the Complaint filed before the ACMM, New Delhi, indicating malicious conduct by the Department. The Court found no merit in this submission, stating that an analogy could not be drawn with instances where the Detaining Authority's order is verbatim that of the Sponsoring Authority.

6. Likelihood of the Detenu Being Released on Bail:
The Petitioner contended that there was no likelihood of the Detenu being released on bail, as successive applications had been rejected. The Court referred to Rajesh Gulati vs. Govt. of NCT of Delhi, emphasizing that the object of detention under COFEPOSA is preventive, not punitive. The Detaining Authority's satisfaction must be based on objective data.

7. Delay in Passing the Detention Order:
The Court found unexcusable and uncondonable delay in passing the Detention Order. The Detenu was taken into custody on 18.10.2007, and the order was passed two months after the initiation of prosecution on 15.12.2007. The delay vitiated the impugned Detention Order as it did not manifest urgency and imminence.

8. Disposal of the Detenu's Representation:
The Detenu's representation dated 11.3.2008 was disposed of after the Reference to the Advisory Board on 24.3.2008. The Court cited Jayanarayan Sukul vs. State of West Bengal, emphasizing that the appropriate Government must exercise its opinion on the representation before sending the case to the Advisory Board. The Respondents' failure to do so was legally indefensible.

9. Compliance with Constitutional Safeguards:
The Court highlighted the constitutional safeguards under Article 21 and Article 22(5) of the Constitution, which guarantee the right to life and personal liberty and the right to be informed of the grounds of detention and to make a representation. The Court found that the Respondents did not comply with these safeguards, as the representation was not disposed of promptly.

Conclusion:
The Court quashed the impugned Detention Order and directed the immediate release of the Detenu if not required in any other case of punitive or preventive detention. The Court imposed costs of Rs. 5,000/- against the Respondents for their failure to heed the numerous decisions of the Hon'ble Supreme Court and High Courts. The writ petition was allowed.

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