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TMI Blog1992 (5) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, the present case prima facie fell within the scope of the expression `smuggling' as defined in the Act. Appeal dismissed. - 5781 of 1992 - - - Dated:- 14-5-1992 - S. Ranganathan, V. Ramaswami and Yogeshwar Dayal, JJ. [Judgment per : S. Ranganathan, J.]. - The petitioner is the Managing Director of M/s. E.A.P. Industries Ltd., engaged in the business of manufacture and production of plastic compounds, plastic films and sheets and plastic chemicals. The petitioner says that it came to his knowledge that an order has been passed on 1st January, 1992 directing his detention under Section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the `the Act') - with a view to preventing him from abetting the smuggling of goods. A copy, purporting to be a copy of the said order, has been placed on record, though it is not quite clear how the petitioner came by it. Thereupon he filed a writ petition in the Calcutta High Court for an injunction restraining the concerned authorities from detaining him in pursuance of the above order. This writ petition as well as an appeal therefrom have been dismissed : henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s place might irretrievably prejudice the rights of proposed detenus in certain situations. Thus, the conflicting claims of the State and the fundamental right of a citizen need to be reconciled and the limitations, if any, precisely enunciated. This has been done by the recent decision of this Court in The Additional Secretary to the Government of India Ors. v. Smt. Alka Subhash Gadia Ors. [1991 (1.) J.T. (S.C.) 549 = 1991 (53) E.L.T. 481 (S.C.)]. The real question of law that fell for consideration before the Court in that case was whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it and if so in what type of cases. As a corollary to this question, the incidental question that had to be answered was whether the detenu or the petitioner on his behalf, is entitled to the detention order and the grounds on which the detention order is made before the detenu submits to the order. The first question was answered by saying that the courts have power to interfere even before the detention order is served or the detention is effected but that such power will be exercised sparingly and in exceptiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles." 5. In the present case, the authorities did not file any counter-affidavit affirming or denying the facts mentioned in the writ petition nor did they come forward to disclose or even indicate the grounds of the proposed detention, if any. The learned Single Judge in the High Court dismissed the writ petition on the short ground that, on the facts disclosed in the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. and Section 2(43) of the said Act contains a definition of `warehouse', which reads : "`Warehouse' means a public warehouse appointed under section 57 or a private warehouse licensed under section 58." 7. It is clear even from the facts disclosed in the petition that the case of the authorities may be that the petitioner has abetted the removal of the imported goods from the bonded warehouse without the permission of the proper officer. Of course, there can be no smuggling if the goods had been removed from the warehouse not by the petitioner but by the customs authorities or somebody else as suggested by the petitioner. But that will be a question of fact and one has to assume, for the purposes of the present argument, that the goods are alleged to have been removed by the petitioner or the company from the warehouse without the permission of the proper officer. In such a situation, a simple reading of the relevant sections is sufficient to say prima facie that, in the present case, there has been smuggling by the company, and an abetment of smuggling by the petitioner. It is difficult to say on the broad conspectus of facts and the special definition clauses in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India v. Jain Shudh Vanaspati Ltd. (1992 - 1 Scale 34) affirming 1982 (10) E.L.T. 43. (Del.). In the light of these concepts he urges that the scope of S. 111(j) should be restricted to goods which are dutiable and in respect of which no duty has been assessed and their removal from a warehouse where they are lodged pending assessment of duty. 9. We are of the opinion that, interesting as these arguments are, they cannot be accepted. The interpretation sought to be placed by counsel on the provision contained in S. 111(j) is unduly narrow and imports, into the clear language thereof, words that are not there. There is no justification to restrict "dutiable goods" to "dutiable goods not yet assessed to duty". The suggestion that "warehouse" referred to in the clause should be understood to mean a warehouse to which goods are removed under S. 49 but not one to which goods are taken in pursuance of S. 59 is without basis and ignores the wide definition of that expression set out in S. 2(43) of the Customs Act. 10. Shri Sen has urged three considerations in support of his plea to limit the scope of S. 111(j) as urged by him. The first is that the operation of `import' is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odged under S. 59 without permission of the concerned authorities the only consequence that can follow is action under S. 72. According to him, in such cases, there can be no levy of penalty under S. 125 and the goods removed without permission are not liable to confiscation. He urges that a provision, for the contravention of which there can be no penalty or confiscation, should not be so read as justifying the draconian remedy of preventive detention. In support of his contentions on this part of the case, learned counsel strongly relied on the decision of this Court in Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs Ors. [1959 S.C.R. 821 = 1983 (13) E.L.T. 1305 (S.C.)]. We are unable to see any force in this contention. The consequences which follow on a particular act or omission will depend on the statutory provisions in question. It may be that the petitioner's act in the present case may not have attracted S. 125 as it stood earlier but will now attract a penalty in view of S. 125(2) inserted w.e.f. 27-12-1985. It may also attract S. 72 but this cannot, however, be decisive of the interpretation of S. 111(j). In the decision referred to by counsel which arose und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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