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TMI Blog2013 (10) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... led on 30th March, 2011. This Court, on 18th April, 2011, granted time to the learned A.P.P. appearing for respondent No.1 to obtain instructions as to whether an order of detention had been passed and that, if such an order had been passed, the same was to be placed before the Court. Pursuant to the said order, the learned A.P.P. on 19th April, 2011, placed before the Court, the record from the Office of the Secretary, Department of Home, Government of Maharashtra, in which, it was revealed that on 11th February, 2011, an order of detention had been passed against the petitioner. As recorded in the order dated 19th April, 2011, it appears that the said detention order was forwarded by the Secretary, Home Department, Government of Maharashtra, for service on the proposed detenue to the Deputy Commissioner of Police, PCB, CID, Mumbai. The Report of the Deputy Commissioner of Police (Preventive), CB CID, Mumbai dated 14th February, 2004 indicated that the petitioner had absconded. The report indicated that on the website of the Mumbai Police, information about the detention order had already been displayed. It was noted from the file, which was placed before this Court, that a copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state that the learned Counsel for the petitioner has contended before us that the case of the petitioner is covered by three out of the five grounds set out in the case of Additional Secretary to the Government of India & Ors. vs. Alka Subhash Gadia & Anr. 1992 Supp (1) SCC 496 Therefore, the short question, which arises for consideration in the present petition, is whether the case of the petitioner falls within any of the five grounds carved out, in the case of Alka Gadia's case (supra). Before adverting to the grounds culled out by the petitioner for seeking quashing of the detention order at the pre-execution stage, it would be apposite to set out the five grounds laid down by the Apex Court in Alka Gadia's case (supra), in order to appreciate, whether the case of the petitioner falls within any of the five grounds as stated in Alka Gadia's case (supra). It is held in Alka Gadia's case (supra), that it is only when the Courts are prima facie satisfied, that any of the following five grounds exist, the Courts can interfere. The five grounds are as follows: (i) That the impugned order is not passed under the Act under which it is purported to have been passed. (ii) That it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... box in the presence of the panchas, a total of 34500 pieces of memory cards were seized from various boxes. The memory cards were valued at Rs.250/- per piece, the total value of which was Rs.86,25,000/- (CIF) and Rs.1,29,37,500 (LMV). Pursuant to the seizure, statements under Section 108 of the Customs Act, 1962, came to be recorded. A team of Officers was sent vide a Search Warrant to search the business premises of the consignee at Shop No.46, Municipal Market, Ground Floor, Baptista Road, behind Shree Devi Restaurant, Vile Parle (West), Mumbai - 400 056. As the premises were found locked, on inquiry, it was found that the said premises were owned by one Shri Ritesh Lanjewar. Shri Ritesh Lanjewar's statement came to be recorded under Section 108 of the Customs Act, wherein he inter alia stated, that the premises, although belonged to him, was being used by the petitioner for the last two months. He informed the residential address of the petitioner and gave the petitioner's mobile number as 9892444330. Accordingly, the officers went to the residential address of the petitioner, however, were informed that the petitioner was out of station. The office premises came to be sealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10,000/- (Rs.9000/- as advance rent and Rs.1000/- as deposit); and that, there was no formal Rental Agreement between them. He further stated that he had received correspondence from the overseas shipper on 11th June, 2010 at Baroda, which he had submitted to the Customs Authorities. However, the letter did not show any sign of having received it through fax. The bank statement of J.J. Enterprises with Dena Bank, Vile Parle (West) Branch, showed a balance of Rs.4,773/- as on 28th June, 2010 and that there never was any amount more than Rs.7,000/-, which was his opening balance. The business premises of J. J. Enterprises was searched under a search warrant on 21st June, 2010. Although nothing incriminating was found; it was noticed that there was no office furniture or fixtures in the said office. The residential premises of the petitioner was also searched and certain documents were seized under a panchanama. One of the document, was the original fax letter dated 10th July, 2010 received from M/s. S.F. Telecom and AVR CTR Hong Kong and one fax which was allegedly sent by the shippers from fax No.23821992. On verification, it was found that the said fax number belonged to one H.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner on being questioned regarding discrepancy in the value as US $ 200 against the order value of US $ 900, in the June consignment, was unable to explain the same. As far as, the earlier two courier consignments of April were concerned, he has stated to have received only one parcel, though both the delivery notes bear the stamp of J.J. Enterprises in addition to other documentary evidence of import of the two earlier consignments. He has also stated that the order was for mobile accessories and that he had destroyed the documents for the cleared consignment. Similarly, serious discrepancies were found in the alleged fax sent by M/s. S.F. Telecom and TVR Hong Kong to the Customs Authorities for re-exporting the goods, stating, that their logistic department had made a mistake of shipping a wrong consignment, which was meant for an Indonesian client. The Authorities found that the fax was fabricated for several reasons. In view of the material collected, a show-cause notice came to be issued to the petitioner under Section 124 of the Customs Act on 9th December, 2010. It was alleged in the said show-cause notice that the petitioner of M/s. JJ Enterprises had hatched a conspiracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on stage, relying on three of the five grounds/contingencies set out in Alka Gadia's case (supra). It would, also be apposite to refer to the case of the State of Maharashtra vs. Baburao Gavande (2008) 3 SCC 613, wherein, the Apex Court had in para 63 observed thus: "63. ................ As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the pre-execution or prearrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to preventing' a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee grounds are squarely covered by three out of the five contingencies set out in Alka Gadia's case (supra). 8. The first ground raised by the petitioner for quashing of the detention order at the pre-execution stage, is that his case falls in ground (ii) of Alka Gadia's case (supra) i.e. the detention order is sought to be executed `against a wrong person'. In order to appreciate the petitioner's contention, it is necessary to reproduce ground (B) of the petition, which reads thus: "B. Because the petitioner has not imported the seized goods. The goods have been wrongly shipped at the petitioner's name, which fact is duly admitted by the overseas supplier in its letter addressed to the Customs department with a copy marked to the petitioner. The allegations of the custom department are totally false, concocted and baseless. There is no evidence to connect the petitioner with the said shipment in any manner. The department has not annexed/forwarded the documents with the show cause notice which the petitioner has duly handed over during investigation clearly showing that the petitioner has no nexus with the said shipment in question." In reply to the aforesaid ground, Shri Nandk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged, the petitioner stated that he had given the original fax from SFR Telecoms to his Advocate for the purpose of his Anticipatory Bail Application, and that, nothing much turns on the same, as the original fax is nothing but a printout on a thermal paper which lasts only for a couple of days. The petitioner has further stated, that he had handed over the xerox copy of the said fax made from a printout along with the Transmission Report and that the Customs Authorities had verified that, the said fax was intact when received, from a Hong Kong Telephone number. According to the petitioner, he had relied upon the affidavit of M/s. S.F. Telecom, who represented their case before the Customs Authority for reexport of the Consignment as well as for provisional release. It is alleged that the Customs Authority was not interested in the same and in order to frame the petitioner, had alleged, that the said fax were sent from a local number of Girgaon. The petitioner has alleged that he had informed the Authorities that this number was very much in existence in Hong Kong, with a prefix of the International Code, however, the Authorities did not take any efforts to verify the said Hong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer an explanation as to why there was a discrepancy in the invoice; that the alleged fax sent by M/s. S. F. Telecom was doubtful; and that the petitioner had absconded and had tried to evade summons. 10. The second contention raised by the petitioner for quashing of the detention order at the pre-execution stage is, that his case falls under the 3rd exception as set out in Alka Gadia's case (supra) i.e. the detention order is passed 'for a wrong purpose'. Ground (G) of the petition, reads thus: "G. Because after the order of the Hon'ble Sessions Court, Bombay, the department was given opportunity to arrest the petitioner, if required provided a 72 hours prior notice in writing prior to arrest is given to the petitioner, the Custom Department (AIU) chose not to arrest the petitioner. It necessarily implies that there was no tangible ground available with the Customs (AIU) to arrest the petitioner. It is humbly submitted that in the circumstances, the customs department not arresting the petitioner, the natural implication is that there is no need to issue any order of detention under COFEPOSA, when the need to arrest the petitioner in the first instance, did not arise in the mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of a criminal offence, would not, by itself, debar the Government from taking action for preventive detention, and therefore, the mere circumstance that a detention order is passed during the pendency of a criminal prosecution, will not vitiate the order. The order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances. Considering the ground raised by the petitioner, the reply and rejoinder thereto, it is evident that they raise disputed questions of fact, which cannot be entertained, much less examined and decided. 11. Therefore, the petitioner's contention cannot be accepted that, the detention order was passed `for a wrong purpose', as we find that there is ample material to show the complicity of the petitioner. His contention that the Customs Air Intelligence Unit had chosen not to arrest him, does not merit consideration in view of the fact that his anticipatory bail application was not granted on merits. From the affidavit filed by the concerned Officers including the Inspector, it is evident that the petitioner was trying to evade arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otive and for wrongful purpose passed on vague, extraneous and irrelevant grounds. The petitioner is in no manner concerned with the said goods purported to be seized by the respondent. The petitioner has no lean and has neither declared any right in respect of the said goods. The petitioner has clearly in his statement recorded by the Custom Department has stated that it has no nexus, link with the seized goods confiscated by the Customs Department." In response to the said ground, Shri Nandkumar Jantre has, in his reply, denied the allegations made by the petitioner, that COFEPOSA was invoked against the petitioner with an ulterior motive and for a wrongful purpose, passed on vague, extraneous and on irrelevant grounds. It was stated that the Sponsoring Authority was successful in establishing that the seized goods belonged to the petitioner and the nexus between the overseas shipper and the petitioner was also established. It was further stated that, while initiating COFEPOSA action against the petitioner, his past antecedents were also taken into consideration as he was found to be involved in a similar smuggling activity in the year 2004. The petitioner in his rejoinder to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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