2019 (12) TMI 23 - HC - Customs

Release of detenue - Smuggling - Drones - COFEPOSA Act - petitioner stated that the alleged recoveries in the present case had been falsely attributed to the detenue inasmuch as the concerned officer had illegally clubbed all the recoveries made from four different passengers and attributed the same to the detenue - HELD THAT - This Court is of the view that the ownership of the recovered goods had been attributed to the detenue on the basis of the voluntary statements made by other accused persons namely Mr. Harmeet Singh (brother of the detenue), Mr. Sumit Varma, Mr. Sourabh Chopra, Mr. Amarjeet Singh and co-accused/partner of the detenue Mr. Gurpreet Singh. Perusal of the voluntary statements made by them under Section 108 of the Customs Act shows that they had been carrying the recovered goods on the instructions of the detenue and he was in fact, the real owner of all the goods recovered. Consequently, the contention of the petitioner that the Custom officers had illegally clubbed all the recoveries to exaggerate the value of the goods is contrary to facts. This Court is of the opinion that the present case squarely falls under clause a of the exceptions provided under the notification as the detenue was a kingpin and a repeat offender and according to the material placed on record, it was the fifth offence of smuggling in which the detenue had been found involved - The fact that the detenue was a kingpin and a repeat offender and had indulged in smuggling activities prior to the impugned detention order being passed against him proves that he had the propensity and potentiality to continue with such acts and/or finance other persons to commit such acts in future. In any event, there is evidence to show that the detenue need not travel outside India to commit an offence of smuggling as he was a kingpin who had multiple associates who had been smuggling goods into India at his behest. Keeping in view his past conduct, there seems to be every likelihood of him indulging in the activities of smuggling. Consequently, the likelihood of the detenue indulging in smuggling activities was not effectively foreclosed by deposit of his passport - This Court also finds that the bail applications preferred by the detenue were a part of the relied upon documents of the detention order and in the grounds of detention, the Detaining Authority had noted that even though the detenue was in judicial custody, yet there was an immediate possibility of him being released on bail and continuing with illegal acts of smuggling. The same proves that the detaining authority had justifiable reasons to pass the impugned detention order to prevent the detenue from indulging in illegal acts. This Court is of the view that the Detaining Authority committed no error in passing the impugned detention order against the detenue. The impugned order had been passed against the detenue after due consideration of the evidence, which clearly shows that the detenue had been involved in smuggling of commercial quantities of drones, prohibited cigarettes, electronic items etc. into India and had an inclination to indulge in such activities had he not been prevented from doing so - impugned order upheld - petition dismissed.

Summary

Issues Involved:
1. Attribution of recovered goods to the detenue.
2. Applicability of COFEPOSA based on the value of goods.
3. Seizure of the detenue's passport and its impact on the likelihood of committing smuggling.
4. Sufficiency of ordinary criminal law to address the detenue's activities.
5. Validity of the detention order while the detenue was already in custody.

Issue-wise Detailed Analysis:

1. Attribution of Recovered Goods to the Detenue:
The petitioner argued that the recoveries were falsely attributed to the detenue, claiming that the concerned officer had illegally clubbed all recoveries from different passengers. However, the court found that the ownership of the recovered goods was attributed to the detenue based on voluntary statements made by other accused persons, including the detenue’s brother and co-accused/partner. These statements indicated that the detenue was the real owner of the goods. Therefore, the court concluded that the contention of illegal clubbing to exaggerate the value of the goods was contrary to facts.

2. Applicability of COFEPOSA Based on the Value of Goods:
The petitioner contended that COFEPOSA was wrongly invoked as the value of the goods did not meet the threshold specified in the notification dated 3rd August 2012. The court, however, agreed with the respondents that the detenue was a ‘kingpin’ and a ‘repeat offender,’ falling under clause ‘a’ of the exceptions in the notification. The court noted the detenue's involvement in multiple prior smuggling cases, thus validating the application of COFEPOSA irrespective of the value threshold.

3. Seizure of the Detenue's Passport and Its Impact on the Likelihood of Committing Smuggling:
The petitioner argued that since the detenue’s passport was with the Customs Department, he could not commit smuggling. The court found no evidence that the passport was seized; it was kept in ‘jamatalashi’ and could be released upon following due procedure. Furthermore, the court held that the detenue, being a kingpin, could orchestrate smuggling activities without personally traveling abroad, thus the seizure of the passport did not effectively foreclose the likelihood of him indulging in smuggling activities.

4. Sufficiency of Ordinary Criminal Law to Address the Detenue's Activities:
The petitioner argued that ordinary criminal law was sufficient to deal with the detenue’s case and that the detention order was unnecessary. The court emphasized that preventive detention is an anticipatory measure distinct from punitive actions under criminal law. It is intended to prevent future prejudicial activities based on the detenue's past conduct. The court cited Supreme Court judgments to support that preventive detention can be justified even if the detenue is already in custody if there is a likelihood of release and re-engagement in illegal activities.

5. Validity of the Detention Order While the Detenue Was Already in Custody:
The petitioner argued that the detention order was invalid as the detenue was already in custody. The court referred to Supreme Court precedents, stating that a detention order can be validly passed against a person in custody if the detaining authority is aware of the custody and believes there is a likelihood of release and continuation of prejudicial activities. The court found that the detaining authority had justifiable reasons to pass the detention order, noting the detenue's propensity to engage in smuggling activities.

Conclusion:
The court upheld the detention order dated 11th March 2019 and the confirming order dated 7th June 2019. It concluded that the detaining authority had acted within legal bounds, considering the detenue’s history and potential for future smuggling activities. The petition and pending application were dismissed for lack of merit.