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TMI Blog2008 (9) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Om Prakash Deepak Kumar, 1074-75, Room No. 23, Jyoti Market, Gandhi Gali, Fatehpuri, Delhi-110006. He filed a bill of entry bearing No. 589144 dated 25th April, 2007 for clearance of the consignment at I. C. D. , Tughlakabad, New Delhi through their clearing agent CHA M/s P. P. Dutta, Wg. Cdr. (Retd. ) for the clearance of 1041 cartons containing Telescopic Channels of 10 , 12 , 14 , 16 and 18 and Soft Scrubber collectively valued at ₹ 3,06,045. 51 (Rupees Three Lacs Six Thousand Forty Five and Fifty One Paise). On the aforesaid valuation, a duty amount payable was ₹ 1,04,201/-(Rupees One Lac Four Thousand Two Hundred One). It is alleged that the clearing agent, M/s P. P. Dutta sent a letter to the Deputy Commissioner of Customs, ICD, Tughlakabad, New Delhi wherein it expressed its inability to clear the shipment due to some problem and accordingly issued NOC in favour of the detenu. On 15th June, 2007, the clearing agent along with a covering letter sent original bill of entry invoice, packing list, Bill of lading, Certificate of origin and NOC to the detenu. On receipt of the aforesaid documents, the detenu Deepak Kumar himself appeared before the Customs Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported to have been passed on 5th December, 2007 against the detenu which he allegedly learnt only on 22nd May, 2008 and whereafter he immediately surrendered before the ACMM, New Delhi and he is in custody since then. He represented to the Secretary, Govt. of India on 13th June, 2008 through Jail Superintendent which representation was rejected by the Special Secretary, Govt. of India on 1st July, 2008 and communicated to him on 2nd July, 2008 belatedly. Similarly, the Advisory Board also rejected the case of the detenu on 23rd July, 2008 and thereby now he was constrained to file the present petition as averred by him. 3. So far as the respondents are concerned, they have filed their detailed counter affidavit and contested the claim of the petitioner on certain factual aspects apart from legal propositions. The case of the respondent-sponsoring Authority is that on 25th April, 2007 after filing the bill entry No. 589144 dated 25th April, 2007 before the Deputy Commissioner of Customs (Import Shed), Tughlakabad, New Delhi through clearing agent Wg. Cdr. , P. P. Dutta, the detenu or his clearing agent did not appear for clearing the goods till 23rd July, 2008. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was claimed under the bill of entry No. 589144 dated 25th April, 2007. The consignment was found to contain 441 cartons as containing Telescopic Channels instead of 700 cartons as declared. As against the declared 341 carton boxes containing Soft Scrubber only 54 were found to contain Soft Scrubber. On opening of these carton boxes of identical marking said to contain soft scrubber, it is found that different types of goods were kept concealed in these cartons. It was found that 200 similar carton boxes contained shoes of Adidas, Nike, Air brands and 67 similar carton boxes were found containing cigarettes packets of 'Marlboro' brand, 56 white small boxes were found containing ignition plugs of 'Mico Bosch' brand and similar 300 cartons were found containing AAAR03 Nishica of brand battery cells. Inquiries by the respondents also revealed that ignition plugs of 'Mico Bosch' were found to be spurious and similarly 'Marlboro' cigarettes were found to be not containing statutory warning and therefore, it being spurious could also be not ruled out. It was found by the respondents, apart from the declared goods in 495 cartons collectively valued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case 100% checking was done which revealed that it was a case of not only mis-declaration with regard to the quality and the quantity and description of the goods but the detenu was indulging in smuggling activity within the definition of Section 2(39) of The Customs Act. The impugned detention order which was served on him on 22nd May, 2008 as the detenu was alleged to be avoiding the service of the order during the interregnum period. 6. We have heard the learned Counsel for the parties and perused the records. Learned Counsel for the detenu has in essence raised five submissions essentially with a view to attack the detention order dated 5. 12. 2007: (i) Documents in respect of which enquiry is pending cannot form the basis of subjective satisfaction. a) The first submission of the learned Counsel for the detenu was that he had admittedly appeared before the Deputy Commissioner of Customs requesting him to clear the consignment under the bill of entry No. 589144 since the clearing agent was not coming forward to clear the said consignment. In respect of the said bill of entry, goods which were sought to be cleared alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was an Engineering student in that case. It was, under these circumstances that the Supreme Court had observed that keeping in view that there was no past conduct on the part of the detenu of being involved in any anti-social activities except that he had visited the foreign countries once or twice, the baggages containing contraband goods did not belong to the detenu and the investigation was still pending. Therefore it could not be concluded that baggage belonged to the detenu and the passing of the detention order was without any application of mind and on inchoate material. b) As against this, the documents which are declaration forms and are placed at pages 278 to 293 of the paper book are submitted to the Customs Authorities by the detenu himself duly signed seeking clearance of the goods on eight different occasions. It was purported to be containing the goods described in such declaration forms such as steel wool scrubber hinges etc. imported from China. It was further contended by Mr. Aggarwala, learned Counsel for the Respondents that although in eight these transactions goods were cleared that does not mean that the consignments in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Raghunandan v. State of Tamil Nadu case (supra) is not applicable to the facts of the present case as the said judgment is totally distinguishable. Accordingly, we hold that there is no merit in the first contention of the learned Counsel for the detenue that the documents which are forming part of enquiry have been made as the basis of passing of detention order wrongly or that the detention order is passed without any application of mind. On the contrary, the ninth consignment is owned by the detenu while as the other eight are by preponderance of probabilities established to be belonging to him only. (ii) Non- application of mind in passing Detention Order a) It was next contended by Sh. Jain, learned Counsel for the detenu that the detention order has been passed by the detaining authority without any application of mind. In order to drive this point home, the learned Counsel drew our attention to the detention order and read out various portions of paras like para 5, 9 13 etc. wherein it has been mentioned that the detenu namely Deepak Kumar @ Deepak Batra is the proprietor of M/s Om Prakash Deepak Kumar, 1074-75, Room No. 23, Jyoti Market, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the detention order has been passed without any application of mind. On the contrary, we are of the considered opinion that a detention order which is running into almost 21 pages giving each important fact and circumstance as well as the reasons in detail which has prompted the Joint Secretary to Government of India to pass the detention order. The sum and substance which has necessitated passing of the detention order is on account of the fact that there is a proprietary concern by the name of M/s Om Prakash Deepak Kumar having its office at 1074-75, Room No. 23, Jyoti Market, Gandhi Gali, Fatehpuri, Delhi-6 while as the detenu admittedly is living at 1431, Gopal Street, Sangat Rashan, Paharganj, New Delhi. The proprietary concern M/s Om Prakash Deepak Kumar actually belongs to one Deepak Kumar Aggarwal who is doing the business of importing dry fruits from Afghanistan, Indonesia, Iran, USA and some other countries which he sells in Khari Baoli and not importing goods from China. He has also admitted that he had never imported any material of hardware like the one which was said to be imported by the ninth transaction for which the bill of entry No. 589144 dated 25th April, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. 1991CriLJ1536 K. S. Nagamuthu v. State of Tamil Nadu AIR 2006 SC 374 in support of his contention. This argument of the learned Counsel for the detenu was contested by the learned Counsel for the respondents. It was contended by Mr. Aggarwala, learned Counsel for the Respondents that the detenu after being arrested had filed three bail applications, one before the learned ACMM, Patiala House, second before the learned Additional Sessions Judge, Patiala House and the third before the High Court for grant of bail and in all the three applications he had made a reference to his involuntary character of his confession/statement but the retraction to which the learned Counsel for the detenu is making reference now and a copy of which is placed at page 305 was not annexed by the detenu along with any of his applications. On the contrary, along with the application for bail before the High Court the detenu had attached a document which was shown in the index to be a retraction but which was not actually retraction at all. It was further contended that so far as the document, a photocopy of which is placed at page 305 that is a document which is fabricated one. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to this, a document purported to be a retraction is attached with the bail application in the High Court which is not actually a retraction. Further, the respondents on learning about the fact of this document, purporting to be a document of retraction only after filing of the present writ petition on 9th June, 2008 make an application to the learned Judicial Magistrate, New Delhi on 23rd July, 2008 to make an enquiry as to how this document has come on to the judicial record without a copy of the same having been supplied to them and without any order of the learned Magistrate or any endorsement of the Court staff. Therefore, all these facts taken cumulatively will make any reasonable, prudent person to arrive at an irresistible conclusion that this document is a forged, fabricated or in any case manufactured afterwards to create evidence. Further, the possibility of this document being manufactured subsequently is further enhanced because of the criminal proclivities of the detenu. This is evident that the detenu forged a letter on the letter head of M/s Om Prakash Deepak Kumar and represented himself to be the proprietor of the concern while as he was not. Therefore, we prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds of detention. The present case stands on a much better footing inasmuch as not only reference to the alleged retraction is made in the detention order but it is also observed that this alleged retraction was not voluntary and truthful. Further a reading of the entire detention order running into 21 pages shows not only application of mind for arriving at subjective satisfaction but also the propensity and the potentiality of the detenu to indulge in smuggling activity surreptitiously which has resulted in passing of the detention order. h) On the similar lines is the judgment of the Supreme Court in Madan Lal Anand v. Union of India and Ors.: 1990CriLJ659 wherein it has been held by the Supreme Court that if the documents are of such a nature that even in their absence subjective satisfaction would not be affected then failure to place the documents before the detaining authority would be immaterial. Retraction as stated at page 305 is alleged to have not been placed before the detaining authority, we are of the opinion that failure to do so before the detaining authority would have been immaterial on account of other overwhelming evidence to show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder ought not to have been passed. The second limb of the submission was that there was a considerable delay in disposal of the representation of the detenu which was violating the rights of the detenu under Article 22(5) of the Constitution and thus the detention order was liable to be struck down. Elaborating this argument further, it was contended by the learned Counsel that the detenu gave a representation dated 13th June 2008, on 16th June, 2008 to the Superintendent Jail, Tihar. The said representation was received in the COFEPOSA department which was in Delhi itself on the 16th June, 2008 itself. The comments were received by the Cofeposa department from the sponsoring authority on 27th June, 2008 and the representation has been rejected on 30th June, 2008 and intimation to the detenu about the rejection has been sent on 1st July, 2008 and served on the detenu on 2nd July, 2008. Thus there was delay of 16 days in disposal of the representation of the detenu. There was a delay in obtaining the comments from the sponsoring authority and further there was a delay in the disposal of the representation of the detenu also despite the repeated directions given by the Apex Court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut their knowledge. The detenu himself appeared before the Customs Authorities for the first time on 3rd August, 2007 and represented to them that as his clearing agent was not coming forward to get the consignment cleared because of which he was compelled to appear and request for clearance of the consignment. His statement under Section 108 of the Customs Act was recorded so as to establish his ownership qua the consignment. His statement was again recorded on 4th August, 2007 and since the consignment was subjected to 100% check and on checking the same it was found on 3rd August, 2007 that there was mis-description of goods both with regard to quantity and quality. Accordingly the detenu was put under arrest on 4th August, 2007 and produced before the learned ACMM, Patiala House, New Delhi. This was the starting point of making an investigation into the matter, with a view to find out as to whether there was potentiality and propensity of the detenu indulging in smuggling activities in the light of the fact that earlier also similar 8 consignments were got cleared by the detenu. These investigations accordingly took some time as the statements of witnesses like the actual owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007. The statement of the employee of the CHA, search of the residential premises of the employees and the office premises of the CHA firm and statement of proprietor of the CHA firm were conducted/recorded between 7. 8. 2007 to 16. 8. 2007. The verification about the originality of MICO BOSCH spark plugs under seizure was got done through representative of the Company on 20. 8. 2007. On 9. 9. 2007, the proprietor of the CHA firm submitted photocopies of eight Bills of Entry in respect of the goods cleared between 28. 8. 2006 to 9. 1. 2007. Further statements of the husband of the petitioner was recorded on 17. 9. 2007 under Section 108 of the Customs Act, 1962. Second statement of Shri Naveen Kumar Singh, the employee of the CHA firm was recorded on 24. 9. 2007. The proposal for preventive detention of Shri Deepak Kumar @ Deepak Batra, the husband of the petitioner was sent by the Sponsoring Authority to the Ministry of Finance, Department of Revenue, New Delhi on 29. 10. 2007 and the same was considered and approved by the Central Screening Committee on 7. 11. 2007. The proposal as approved by the Central Screening Committee was put up by the Under Secretary (Cofeposa) to the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are of the view that even this plea raised by the detenu does not have any merit, it is totally wrong to assume as has been stated by the detenu that he was appearing in the Court. As a matter of fact, the complaint case under Section 135 of the Customs Act against the detenu is yet to be filed as stated by Mr. Aggarwala. No order sheet of the said complaint case has been placed on record by the detenu and therefore, there is hardly any occasion for the detenu to appear in the Court. Further, in the counter affidavit it has been stated that the detenu's premises were raided twice but without any success. The respondents had to take the coercive steps under Section 7(1)(b) of the Cofeposa Act as well as under Section 82 and 83 Cr. P. C. for declaring him as a proclaimed offender. As against this, the detenu has presented himself as if he is a very straight forward and Law abiding citizen by contending that the moment he learnt about the detention order he surrendered before ACMM, New Delhi on 22nd May, 2008. The averments or the submission by the learned Counsel for the detenu do not inspire any confidence rather we feel that the detenu was evading the service of detention or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of the detenu is dated 16th June, 2008 and is purported to have been delivered to the Assistant Superintendent Jail, Tihar on the same day itself but the respondents have made a specific averment in their counter affidavit that the representation was received by them on 20th June, 2008. This averment made by the respondents in the counter affidavit has not been refuted by the detenu in his rejoinder. Therefore, it is prima facie established that the representation dated 16th June, 2008 was received by the COFEPOSA department only on 20th June, 2008. On the same day itself, it was sent to the sponsoring authority that is the Customs Authority who sent their comments on 27th June, 2008. Obviously when the comments have been sent for, the file has to be processed and comments obtained from different tiers, different officers of the Government, accordingly, the needful was done and the comments on the said representation were sent to the COFEPOSA department on 27th June, 2008. 28th and 29th June, 2008 were holidays being Saturday and Sunday and on the next date i. e. 30th June, 2008, the representation of the detenu was considered by the competent officer of the Cofeposa depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity and the rejection of the representation, while as in our case it could hardly be said that there was any delay in obtaining the comments of the sponsoring authority except that the bear minimum time spent in gathering information since incriminating evidence was found against the detenu accordingly his representation was rejected on 30th June, 2008 and intimation in this regard was sent to the detenu on 1st July, 2008 and received by him on 2nd July, 2008. m) Learned Counsel for the respondents has drawn our attention in case M. Mohammed Sulthan v. The Joint Secretary to Govt. of India AIR 1990 SC 2222 it has been held by the Supreme Court that the time taken in obtaining the comments of the sponsoring authority has to be excluded from the number of days in which the representation of the detenu is decided sometime is bound to be taken by the sponsoring authority in giving the comments. If, in terms of the judgment of the Supreme Court, the time taken by the sponsoring authority is excluded, then there is hardly any delay in the instant case inasmuch as the comments from the sponsoring authority have been received on 27th June, 2008 and 28th 29th June, 2008 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Special Secretary cannot be said to be bad. c) The representation of the detenu was considered by the Special Secretary, Revenue in terms of the latest notification and therefore we are of the opinion that he was a competent person to hear and dispose of the representation of the detenu. There was no merit in the plea of the detenu that since the notification issued by the Finance Ministry was a gazette notification and empower the Secretary, Department of Revenue, Ministry of Finance to decide the representation of the detenu which was sought to be changed by another office order dated 2nd September, 1998 and the said power was conferred on Special Secretary who considered the representation of the detenu. Therefore, there was no infirmity in the rejection of the representation of the detenu. In view of the aforesaid facts and circumstances of the case, we are of the considered opinion that there is no merit in the submission made by the learned Counsel for the detenu that the detention order which has been passed against the detenu is vitiated on account of violation of the right of the detenu under Article 22(5) or on account of various submissions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose our eyes to these acts of omission and commission on the part of the detenu which prima facie is in our opinion resulting commission of various offences under Sections 199, 420, 468 and 471 Indian Penal Code by the detenu. 9. Section 39 of the Cr. P. C. casts a duty on the members of the general public to inform the police about the commission of certain specified offences or the intention thereof. This duty is all the more onerous on the Courts and especially the High Court which must do the complete justice under Section 482 Cr. P. C. not only to the petitioner but also against the Respondents/victim which in a case of this nature would be the society at large. It is also under a duty to pass orders to secure the ends of justice. 10. The scourge of smuggling affects the economic health of the country and therefore, cannot be taken lightly. For these reasons we feel that we will be failing in our duty in case we don't direct in exercise of our powers under Section 482 Cr. P. C. the Commissioner of Customs, ICD, Tughlakabad to lodge a report with the police station Tughlakabad, where the goods have been received or sought to be cleared within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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