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TMI Blog2019 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... that the retraction by Mr. Adel Saeeed Ghulam had been made post the detention order dated 15th March, 2019 having been passed, there was no occasion for the Detaining Authority to have considered the same prior to passing the impugned order. There is no illegality in the impugned order - Petition dismissed. - W.P.(CRL) 1826/2019 - - - Dated:- 26-11-2019 - MR. MANMOHAN AND MS. SANGITA DHINGRA SEHGAL JJ. Petitioner Through : Mr. Rajesh Khanna, Advocate with Mr. Arvind Kumar, Advocate. Respondents Through: Mr. Kirtiman Singh, CGSC with Mr. Kavindra Gill and Mr. Rohan Anand, Advocates for UOI/ respondents No.1 and 2. Mr. Satish Aggarwala, Senior Standing Counsel, Advocate for respondent No.3. JUDGMENT MANMOHAN, J: 1. Present petition has been filed seeking quashing of the Detention Order bearing No.PD-12002/04/2019-COFEPOSA dated 15th March, 2019 passed by respondent No.2 under Sub-Section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act ) against the petitioner. 2. This Court may mention that on 20th November, 2019 also the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of his contention, he relied upon the letter dated 19th July, 2019 written by Joint Commissioner, Customs, Amritsar, to him enclosing a letter written by the local counsel for the Customs Department to the Deputy Commissioner, Customs (Prevention), Amritsar. It is pertinent to mention that the said communications had been placed on record of this Court on 27th July, 2019. 7. Consequently, according to him, the Detaining Authority could not have considered the retraction made subsequently by Mr. Adel Saeeed Ghulam. 8. Mr. Aggarwala further alleged that the petitioner is the mastermind and the main conspirator in the case of smuggling of gold. In support of his contention, he relied upon the counter-affidavit filed by the respondent No.3-Commissioner of Customs, Amritsar. The relevant portion of the said affidavit is reproduced hereinbelow:- 32......... The contention of the Petitioner that the Detaining Authority had relied upon perfunctory and inchoate material is irrelevant and misconceived. Detaining authority has clearly spelled out the grounds for the detention of the petitioner. The petitioner is the mastermind and main conspirator in smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010) through forensic, wherein Mohd. Yusuf of Afghanistan was offering him partnership in his business and the petitioner was asking him to deposit ₹ 2-3 crores each in two times in his account which he can manage easily and will transfer the money in Yusuf s account as a payment of the imported fruits consignment. (h) The petitioner could not explain as to why Yusuf was asking him to offer USD 50000 or USD 100000 in audio conversation dated 06.12.2018 for the clearance of the seized consignment as the declared value of the import consignment was approx ₹ 8 lac only. The petitioner has admitted that Mohd. Khalid/Yusuf knew that there was gold in the consignment and so they were asking him to monitor the consignment from time to time on 05.12.2018 and Yusuf and Khalid had promised the petitioner huge commission of ₹ 50,000/- to ₹ 1,00,000/-. He admitted that if the said consignment would not be cleared safely, he will be in trouble and his commission and interest will also be jeopardized. (i) The Petitioner also admitted that after knowing about the seizure of consignment of fresh fruits on 05.12.2018 by the Customs, he immediately reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Having heard learned counsel for the parties, this Court is of the view that it is essential to first outline the relevant facts. 10. The facts of the present case as disclosed in the counter affidavit are that on 05th December, 2018, a consignment of fresh fruits (i.e. Apples and Pomegranates) coming from Afghanistan entered into India at Integrated Check Post Attari, Amritsar vide Bill of Entry No.9128587 dated 05th December, 2018, Invoice No.43 dated 01st December, 2018, (SAFTA reference No.11288 dated 01st December, 2018, TIN No.9000308693) filed by M/s Universal Solutions, a proprietorship firm of the petitioner. 11. Upon random checking of corrugated boxes containing fresh apples being carried out on 05th December, 2018, one of the empty boxes was observed to be much heavier. When the base of the box was torn apart by the examining Inspector of Customs, two solid materials wrapped in black rubber tube cut pieces were recovered from the base of the box. On further cutting the rubber packing, solid materials were found wrapped in black electric tape which were further wrapped in black carbon paper. On removing all the covering material, two pieces of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D IN THE CONSIGNMENT IMPORTED BY THE PETITIONER, THERE IS NO DISPUTE OR INCONCLUSIVENESS OF THE ALLEGATIONS IN THE PRESENT CASE. THE JUDGMENT IN KOTHARI FILAMENTS AND ANOTHER (SUPRA) HAS NO APPLICATION TO THE PRESENT CASE AS IT WAS NOT A CASE OF PREVENTIVE DETENTION. 15. This Court is of the view that the petitioner s contention that investigation is incomplete in the present case or that the detention order is based on perfunctory and inchoate material, is contrary to the facts. In fact, as smuggled gold had been found concealed in the consignment imported by the petitioner, there is no dispute or inconclusiveness of the allegations in the present case. 16. Moreover recovery of smuggled gold proves that the petitioner has the propensity as well as potentiality to indulge in similar acts of smuggling of goods into India and it further proves existence of live-link. The Apex Court in Union of India and Anr. Vs. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 has held as under:- 42. ......we are conscious that the Constitution and the Supreme Court are very zealous of upholding the personal liberty of an individual. But the liberty of an indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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