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TMI Blog2007 (8) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... ling activities would be able to easily manage to continue to do the said activities even though he may not be in employment of the said Courier Company. He would be able to obtain employment in an another Courier Company easily and/or even forge certain documents and would have access in the Customs area. Under these circumstances, we are also not satisfied with the second ground of challenge to the aforesaid detention order. Detention confirmed. - 2564 of 2006 - - - Dated:- 31-8-2007 - Dr. S. Radhakrishnan and A.A. Sayed, JJ. [Judgment per : S. Radhakrishnan, J.]. - By this Petition, the Petitioner, who is the brother of the detenu Rajesh Krishna Gothal is challenging the detention of the said detenu. The impugned detention order is dated 17-8-2006 and the same was passed by the Principal Secretary (Appeals and Security) Government of Maharashtra, Home Department and the Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the "said Act", on the ground that with a view to prevent the detenu in future from smuggling of goods, it was necessary to detain him under the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame were handed over to Custom Authorities for clearance. On interrogation, the modus operandi appeared to be that one Shri Kamal Rohit Reshamwala, the said Vijay Ramchandra Panchal and the detenu were to get these electronic items from Hong Kong and on arrival these high valued electronic items were to be shifted into a Courier bag containing documents and samples which bear no customs duty. It was also contended by the D.R.I. that the detenu was clearly informed by the Vijay Ramchandra Panchal the Modus Operandi that the aforesaid goods will have to be cleared without paying any duty and handover the same to one Kamal Rohit Reshamwala, outside the Airport and that they were to share the monetary consideration. The detenu's statements were recorded on 3-4-2006 and also on 12-5-2006. On interrogation, it was also found that the detenu was earlier involved in clearing similar consignments without paying customs duty and that the present consignment had arrived by Air India Flight No. AI-315 on 23-3-2006 around 12.30 a.m and the parcel was also cleared changing into "documents bags only" and as such the same was cleared without payment of any duty. After completing entire investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the said judgment in support to contend that even in the present case the facts disclosed do not amount to any act of smuggling by the detenu and as such the order should be set aside. 5. Mrs. Ansari raised a second ground contending that the detenu would be totally incapable of indulging in the activities alleged therein, since the detenu was an employee of M/s. OCS Courier Service Co. and his services were immediately terminated by the employer in the month of April, 2006 itself, when the aforesaid incident had taken place, and in view thereof Mrs. Ansari contended that the detenu would not be able to enter the baggage hall as he was not the employee of the said Courier Company. The Detaining Authority was fully aware of the same that the detenu was not in employment of the said Courier Company and even then the said detention order has been passed without application of mind. Since the detenu would not be able to enter the Airport baggage hall, he would not be able to commit any prejudicial activity of smuggling or abetting of smuggling. In that behalf Mrs. Ansari also referred to and relied upon a judgment of this Court in the case of Arvind Sudkoji Mohite v. State of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it had arrived as RAM cards. The aforesaid two employees of M/s. OCS Courier Service Company along with said Kamal Reshamwala had conspired to evade payment of customs duty and by clearing the said goods without declaring the same and removing the said goods and putting it into a courier bag containing documents and samples and getting it cleared without payment of any duty. Therefore, he contended that the above act of removing the goods and concealing it in such a manner and also removing the goods from the Customs area without permission from the Proper Authority would clearly amount to an act of smuggling. He emphasises that as per the provisions of Section 111(i) and (j) of the said Act, it would amount to an act of smuggling. He also contended that the aforesaid judgment of the Division Bench in the case of Mabelaranah Niranjan Puthran v. State of Maharashtra dated 8-8-2007 will not be applicable to the present case, as in the said case, detenu was only assisting and facilitating the goods, which were already smuggled. In the instant case, the goods had landed properly however, the act of smuggling was by concealing the aforesaid dutiable goods in a Courier bag containing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mhaispurkar, in that behalf referred to and relied upon a judgment of the Hon'ble Supreme Court in the case of Sitthi Zuraina Begum v. Union of India and others, 2002 AIR SCW 4807, wherein, the Hon'ble Supreme Court in paragraph No. 9 had observed in the context where a detenu's passport was cancelled still the Court felt that "an inference can be drawn that the detenu was a part of bigger network in bringing the goods for commercial distribution inside the country by avoiding payment of duty. In this background, absence of passport will not be a handicap to the detenu for his activities." 12. Mr. Mhaispurkar also referred to a Division Bench Judgment of our Court in the case of Mohan Chhaturmal Daryani v. State of Maharashtra, 2004 ALL MR (Cri) 2766, wherein in paragraph No. 9, this Court had clearly observed that "the smuggling activities may be carried out with the help of forged documents or by obtaining fresh passport giving new address and also that such prejudicial activities can be carried out even without a passport". Mr. Mhaispurkar, therefore contended that in view of the organized manner in which the detenu was involved in a larger group, the detenu would still be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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