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TMI Blog2007 (8) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary, (Appeals Security), Home Department, Government of Maharashtra under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA Act ) with a view to preventing him in future from smuggling goods. The order of detention along with the grounds of detention and the material in support thereof was served on the detenu on 2-11-2006. 2. Admittedly, the detenu is a Custom House Agent. The grounds of detention indicate that based on a specific intelligence that two import consignments in the name of M/s. Orbit International (IEC No. 0392022320) and M/s. Drashti Overseas (IEC No. 0300007442) which have arrived in Mumbai on board Cathay Pacific Airlines on 18/19th February, 2006 and which have been declared to contain plastic parts of toys are actually containing analog watch movements. The officers of DRI, Mumbai, traced the two consignments which had arrived at Air Cargo Complex, Sahar, Mumbai, under IGM No. 2072/2006, dated 18-2-2006 vide HAWB 162151 in the name of M/s. Orbit International and HAWB 162152 in the name of M/s. Drashti Overseas and detained the same on 20-2-2006 for detailed examination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of mind on the part of the detaining authority. He pointed out that in the grounds of detention, the detaining authority has clearly stated that the detenu has facilitated illegal imports. In fact, all the statements indicate that the detenu only facilitated smuggling. He has no role to play in the actual smuggling of the goods. He submitted that the goods originated from Hong Kong. Import documents were prepared in Hong Kong. The misdeclaration was done in Hong Kong. The detenu has nothing to do with the misdeclaration. The detenu is not concerned with the illegal bringing of the goods to India. He is not even concerned with the disposal of the goods in India. He has merely facilitated the clearance of goods. He could, therefore, never have been detained with a view to preventing him from smuggling goods. Mr. Khan also drew our attention to the affidavit of the detaining authority. He pointed out that in paragraph 6 of the affidavit, the detaining authority has clearly stated that in order to facilitate smuggling of goods, the detenu has taken active part by procuring the IEC Code of one Yogesh Merchant. Therefore, it is the case of the detaining authority that the detenu merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly imported goods. Section 113 pertains to confiscation of goods attempted to be improperly exported. We are concerned here with goods improperly imported. Section 111 states under what circumstances goods brought from a place outside India are liable to be confiscated. If goods are brought to India under circumstances stated in clauses (a) to (p), they are liable to be confiscated. Smuggling is complete when such goods are brought in India from a place outside India. 7. Section 2(e) of the COFEPOSA Act defines smuggling as follows : 2(e) Smuggling has the same meaning as in Clause (39) of Section 2 of the Customs Act and all its grammatical variations and cognate expressions shall be construed accordingly. 8. Under Section 3 of the COFEPOSA Act, a person can be detained with a view to preventing him from (i) smuggling goods or (ii) abetting the smuggling of goods or (iii) engaging in transporting or concealing or keeping smuggled goods or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. Each activity is a distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt further observed that assuming the detenu was merely an abettor still his activities afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling if not detained. 13. It is clear, therefore, that though Section 3 of the COFEPOSA Act provides for distinct grounds of detention, in a given case, the activities can overlap. A wide meaning will have to be given to the word smuggling within the meaning of Section 2(e) of the Customs Act with a view to broaden the scope of preventive detention. This does not, however, mean that where overlapping is not possible some linkage should be established between actual smuggling and steps taken to facilitate smuggling. The facts will have to be closely scrutinized to ascertain whether the detention order is issued on correct grounds. 14. In the present case, the detenu is a Custom House Agent. The seized consignments were imported by one Umesh Shetty, who was introduced to the detenu at Sahar Airport. Umesh Shetty told the detenu that he was planning to import analog watch movements by misdeclaring them as parts of plastic toys. He told the detenu that he needed Import Export Code for importing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Export Code may have been procured by the detenu. But Umesh Shetty made use of it and brought the goods illegally to India. The activities of the detenu are, therefore, not covered by the definition of smuggling as found in Section 2(39) of the Customs Act read with Section 2(e) of the COFEPOSA Act. There is no overlapping as stated by the Supreme Court in Narendra Umrao s case (supra). In that case, the goods belonged to the detenu and he had taken active part in smuggling. The said judgment, therefore, cannot be applied to the facts of this case. 19. The view expressed by us is supported by the judgment of this Court in Mahinder Singh s case (supra). In that case, the detenu was detained with a view to preventing him from dealing in smuggled goods otherwise than by engaging in, transporting or concealing or keeping smuggled goods. The detenu had allowed his Import Export Code number to be used for smuggling goods from Dubai. This Court observed that there appears to be no overact by the detenu for smuggling goods or otherwise dealing with them other than by allowing his license to be used for the purpose of import. This Court observed that the detenu s activities are in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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