2019 (12) TMI 20 - HC - Customs

Smuggling - Gold Bars - Detention order - Sub-Section (1) of Section 3 of COFEPOSA Act - petitioner contended that the satisfaction of the Detaining Authority was vitiated inasmuch as the retraction made by Mr. Adel Saeeed Ghulam was not placed before the Detaining Authority - HELD THAT - This Court is of the view that the petitioner s contention that investigation is incomplete in the present case or that the detention order is based on perfunctory and inchoate material, is contrary to the facts. In fact, as smuggled gold had been found concealed in the consignment imported by the petitioner, there is no dispute or inconclusiveness of the allegations in the present case - Moreover recovery of smuggled gold proves that the petitioner has the propensity as well as potentiality to indulge in similar acts of smuggling of goods into India and it further proves existence of live-link. Retraction of statements - HELD THAT - The detaining authority could not have considered the retraction made subsequently by Mr. Adel Saeeed Ghulam - Also, as there is no denial by the petitioner to the fact that the retraction by Mr. Adel Saeeed Ghulam had been made post the detention order dated 15th March, 2019 having been passed, there was no occasion for the Detaining Authority to have considered the same prior to passing the impugned order. There is no illegality in the impugned order - Petition dismissed.

Issues Involved:
1. Validity of the Detention Order.
2. Consideration of Retraction by Mr. Adel Saeeed Ghulam.
3. Basis of Detention Order on Inconclusive Investigation.
4. Petitioner's Propensity for Smuggling.
5. Application of Supreme Court Judgments.

Issue-wise Detailed Analysis:

1. Validity of the Detention Order:
The petitioner sought the quashing of the Detention Order dated 15th March, 2019, issued under Section 3(1) of the COFEPOSA Act, 1974. The petitioner argued that the Detaining Authority's satisfaction was vitiated due to the non-consideration of the retraction by Mr. Adel Saeeed Ghulam. The Court noted that the detention was based on the recovery of twenty-seven gold bars weighing 32.654 kgs and valued at ?9.41 crores from a consignment of fresh fruits imported by the petitioner. The Court found no illegality in the impugned order and dismissed the petition.

2. Consideration of Retraction by Mr. Adel Saeeed Ghulam:
The petitioner contended that the retraction by Mr. Adel Saeeed Ghulam, which could have influenced the Detaining Authority's decision, was not considered. The Court clarified that the retraction was filed on 25th March, 2019, while the Detention Order was passed on 15th March, 2019. Thus, the Detaining Authority could not have considered the retraction made subsequently.

3. Basis of Detention Order on Inconclusive Investigation:
The petitioner argued that the Detaining Authority relied on inconclusive investigations regarding five consignments imported by the petitioner. The Court emphasized that the recovery of smuggled gold from the consignment imported by the petitioner negated any claims of inconclusiveness. The Court referenced the case of Union of India and Anr. Vs. Dimple Happy Dhakad, highlighting that preventive detention aims to protect society rather than punish past actions.

4. Petitioner's Propensity for Smuggling:
The Court noted that the petitioner had a history of importing and exporting goods and was involved with individuals linked to the smuggling racket. The petitioner's involvement was evidenced by various admissions and forensic evidence, including WhatsApp voice notes discussing financial transactions related to the smuggling activities. The Court concluded that the petitioner had the propensity and potentiality to engage in similar smuggling activities in the future.

5. Application of Supreme Court Judgments:
The petitioner relied on the Supreme Court judgment in Kothari Filaments and Another Vs. Commissioner of Customs (Port), Kolkata and Others to argue against the detention order. However, the Court found this judgment inapplicable as it did not pertain to preventive detention. The Court reiterated the principles from Union of India and Anr. Vs. Dimple Happy Dhakad, underscoring the preventive nature of detention orders aimed at protecting national security and societal interests.

Conclusion:
The Court dismissed the writ petition, affirming the validity of the Detention Order and rejecting the petitioner's arguments regarding the consideration of retraction, the basis of the detention on inconclusive investigations, and the applicability of cited Supreme Court judgments. The Court upheld the preventive detention as a necessary measure to safeguard society from the petitioner's potential smuggling activities.

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