2007 (8) TMI 362 - HC - Customs

Detention order - Abetment in smuggling - COFEPOSA - Held that - There is no dispute that the detenu had removed both the brown cartons containing RAM cards and had kept them in a Courier bag containing only documents and samples and he had also admitted that the same were for the purpose of clearing it without payment of any duty, if that be so, the said activity would clearly fall within Section 111(i) and (j) of the Customs Act. Over and above, relying by the learned Counsel for the Petitioner on Mabelaranah Niranjan Puthran v. State of Maharashtra 2007 (8) TMI 703 - BOMBAY HIGH COURT case will have no application in the present case, since in that case, the Court had held that there was no act of smuggling or there was only an act of facilitating the smuggling, whereas, in the present case, we are of the view that the activity of detenu amounts to smuggling and hence, the said judgment is not applicable to the present case. Hence the first ground of objection has no merit. the detenu being a part of large organized group indulging in smuggling activities would be able to easily manage to continue to do the said activities even though he may not be in employment of the said Courier Company. He would be able to obtain employment in an another Courier Company easily and/or even forge certain documents and would have access in the Customs area. Under these circumstances, we are also not satisfied with the second ground of challenge to the aforesaid detention order. Detention confirmed.

Summary

Issues Involved:
1. Whether the detention order was justified on the grounds of preventing future smuggling.
2. Whether the detenu's activities amounted to smuggling or merely abetting smuggling.
3. Whether the termination of the detenu's employment rendered the detention order invalid.

Issue-Wise Detailed Analysis:

1. Justification of the Detention Order:
The Petitioner challenged the detention order dated 17-8-2006, arguing that the detenu was detained to prevent future smuggling activities. The detenu was arrested and detained on 14-9-2006, with the detention order and grounds provided on the same day. The authorities based the detention on the detenu's involvement in smuggling activities, specifically the handling and concealment of RAM cards to evade customs duty. The detenu's statements and the investigation revealed a pattern of smuggling activities, justifying the preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

2. Smuggling vs. Abetting Smuggling:
The Petitioner's counsel argued that the detenu's actions constituted abetting smuggling rather than actual smuggling, referencing the case of Mabelaranah Niranjan Puthran v. State of Maharashtra. However, the court emphasized the definition of "smuggling" under Section 2(39) of the Customs Act, 1962, and Sections 111(i) and (j), which cover acts of concealing and removing dutiable goods without permission. The court found that the detenu's actions of repacking RAM cards to evade customs duty fell within the definition of smuggling, thus validating the detention order. The court distinguished the present case from Mabelaranah Niranjan Puthran, where the detenu only facilitated smuggling.

3. Impact of Termination of Employment:
The Petitioner argued that the detenu's termination from M/s. OCS Courier Service Co. in April 2006 rendered the detention order invalid, as he could no longer access the baggage hall to commit smuggling. The court, however, referred to previous judgments, including Sitthi Zuraina Begum v. Union of India and Mohan Chhaturmal Daryani v. State of Maharashtra, which established that individuals involved in organized smuggling networks could continue their activities despite employment termination. The Detaining Authority was aware of the termination but concluded that the detenu could still engage in smuggling through other means, such as obtaining new employment or forging documents. The court found no fault in the Detaining Authority's reasoning and upheld the detention order.

Conclusion:
The court dismissed the Petition, finding no merit in the arguments presented. The detention order was justified based on the detenu's smuggling activities, and the termination of his employment did not preclude the possibility of future smuggling. The Rule was discharged, and the detention order was upheld.