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TMI Blog2010 (6) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 for three containers and Customs checked, verified the consignment and Let Export Order was given. On 28-7-2009, based on Intelligence that Potassium Chloride (Muriate of Potash) is exported out of India under the guise of Industrial Salt, representative samples from the goods available in the three containers were drawn under mahazar for the purpose of chemical examination and on 29-7-2009, the samples were sent to the office of M/s. Coromandel Fertilisers Limited, Ennore, Chennai and to the Custom House Laboratory, Chennai for testing and analysis of composition. The Analysis Report dated 3-8-2009 received from M/s. Coromandel Fertilisers Limited, giving specifications confirmed that the samples are Potassium Chloride (Muriate of Potash). On 4-8-2009, the Customs Officials seized the export consignment of 75 MTS under mahazar and issued summons to Thiru. S. Yuvaraj, and apprehending arrest, he obtained an order of anticipatory bail dated 25-8-2009 from this Court with a condition to report before the Investigating Agency for four weeks and he complied with the same. The impugned detention order came to be clamped on him on 13-11-2009 and that is being challenged. 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Fertilisers Limited and Custom House Laboratory, Chennai. The result of the analysis of M/s. Coromandel Fertilisers Limited, is found in page No. 23 of the paper book and the percentage of Water Soluble Potash as K2O is mentioned as not less than 60 percentage in all the samples. No opinion that the samples are classified as Potassium Chloride (Muriate of Potash) is stated in it. 6. The Analysis Report of Custom House Laboratory, dated 14-8-2009, is found in page No. 54 of the Book let, wherein it is stated that the sample is composed of Potassium Chloride together with small amounts of compounds of Sodium, Calcium and Magnesium and Iron and in order to ascertain whether the sample is to be classifiable as Muriate of Potash (MOP), an expert opinion may be obtained from the Deputy Director, Regional Fertilizer Control Laboratory, Madhavaram Milk Colony Post, Chennai. The report has further stated that there is no literature available in the Custom House Laboratory regarding 'Industrial Salt'. The Custom House Laboratory did not give any definite opinion as to whether the consignment is Muriate of Potash and it does not also state the percentage of Water Soluble Potash as K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sers Control Laboratories or in any other laboratory notified for this purpose by the State Government. 10. It is not in dispute that M/s. Coromandel Fertilisers Limited Laboratory is not notified for the purpose of analysis under Order 29 by the State Government. The Detaining Authority, in the grounds of detention, having alleged violation of the provisions of Fertiliser (Control) Order, cannot rely on the Analysis Report of a Laboratory, which is not notified under Order 29. 11. As rightly contended by the learned Senior Counsel appearing for the petitioner, the conclusion of the Detaining Authority that the consignment is Potassium Chloride (Muriate of Potash), is based on erroneous interpretation of the report of the Custom House Laboratory and based on the report of a laboratory not notified as per Fertilizer Control Rules and the order of detention is vitiated by total non-application of mind. 12. The second ground pertains to the valuation of consignment, as determined by the Authorities. The declared valuation of the consignment as per the Shipping Bill is Rs. 13,93,450/-. The Sponsoring Authority, namely, the Customs Department, in the counter affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his first export and the consignment has been detained and the Detaining Authority has not relied on any other incident and the subjective satisfaction of the Detaining Authority that there is compelling necessity to prevent the detenu from indulging in smuggling of goods in future, is without any factual basis and the order of detention is vitiated due to non application of mind. In support of his submission, he mainly relied on the following Supreme Court decisions : "1. Chowdarapu Raghunandan v. State of Tamil Nadu and Others, [(2002) 3 S.C.C. 754] = 2002 (143) E.L.T. 26 (S.C.) 2. Pooja Batra v. Union of India and Others, [(2009) 5 S.C.C. 296] = 2009 (239) E.L.T. 17 (S.C.) 3. Gimik Piotr v. State of Tamil Nadu and Others, [(2010) 1 S.C.C. 609] = 2009 (248) E.L.T. 7 (S.C.)" 16. Per contra, the learned Additional Public Prosecutor submitted that a single act can be the basis for preventive detention and it is the impact and effect of the act which is the determinative and in support of his submission, he relied on the following decisions of the Supreme Court :- "1.Attorney General For India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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