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2012 Supreme(Mad) 1501
High Court of Judicature at Madras
K. MOHAN RAM & G.M. AKBAR ALI
Shaik Rahamathullah
Versus
The Secretary to Government of Tamil Nadu Public (Law and Order) Department & Others
Habeas Corpus Petition No.7 of 2012
Decided on: 27-03-2012
For the Petitioner:M. Abdul Nazeer, Advocate.
For the Respondents: R1 & R3 - A.N. Thambi Durai, Addl. Public Prosecutor, R2 - V. Parivallal, SCGSC.
The main legal point established in the judgment is that the subjective satisfaction of the detaining authority under COFEPOSA must be supported by acceptable materials to justify a preventive detention order.
Headnote:
Smuggling - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act - Sec.3(1)(i), Customs Act - Sec.239 - COFEPOSA - [Sec.3(1)(i) of COFEPOSA Act, Sec.239 of Customs Act] - The court discussed the detenu's attempt to smuggle gold coins into India, the confiscation of the gold coins under the Customs Act, and the subjective satisfaction of the detaining authority under COFEPOSA. The court highlighted the detenu's attempt to pass through the green channel without declaring the possession of gold coins, the adjudication order confiscating the gold coins, and the detaining authority's consideration of the likelihood of the detenu indulging in smuggling activities in the future.
Fact of the Case:
The detenu, a Singapore citizen, attempted to smuggle 175 gold coins into India by concealing and not declaring them to the Customs Department. The detenu's possession of the gold coins was confiscated under the Customs Act, and the detaining authority passed an order under COFEPOSA to prevent the detenu from indulging in smuggling activities in the future.
Finding of the Court:
The court found that the detaining authority's subjective satisfaction regarding the detenu's likelihood of indulging in smuggling activities in the future was not supported by acceptable materials, and thus, the detention order was vitiated and set aside.
Issues: The issues involved the detenu's attempt to smuggle gold coins, the confiscation of the gold coins under the Customs Act, and the detaining authority's subjective satisfaction under COFEPOSA regarding the detenu's likelihood of indulging in smuggling activities in the future.
Ratio Decidendi: The court held that there was no acceptable material to support the detaining authority's subjective satisfaction about the detenu's likelihood of indulging in smuggling activities in the future, and therefore, the detention order was vitiated and set aside.
Final Decision: The impugned order of detention against the detenu was set aside, and the Habeas Corpus Petition was allowed, directing the detenu to be set at liberty forthwith unless his detention is otherwise required in connection with any other case.
(G.M. AKBAR ALI,J.,)
1. The petitioner, who is the detenu herein, challenges the detention order dated 7.12.2011 passed by the first respondent against him under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, quash the same, produce him before Court and set them at liberty.
2. On 10.9.2011, the detenu, holder of a Singapore Passport No.E-1719683K dated 22.3.2010, arrived from Brussels by Jet Airways Flight No.9W 225/9.9.2011 vide E-Ticket No.5892863870213 at Chennai Anna International Airport. The detenu after having collected his baggage bearing Tag No.0589 9W557345P and hand baggage passed through the green channel. However, he was intercepted at the Exit by the Air Customs Officers. He was questioned whether he wanted to declare anything to Customs and whether he was carrying any gold or other valuables in his baggage or in his person. The detenu replied in the negative. Not satisfied with the reply the Customs Officer examined the baggage and the hand baggage. But nothing was found.
3. On repeated questioning, the detenu admitted that he had five packets containing 175 gold coins inside his pant pockets. The detenu did not possess any valid licence but produced an invoice dated 8.9.2011 issued by the Gold and Forex International Brussels, Belgium for the purchase of the gold. As the detenue did not declare the gold to the Customs Department, which is violation under the Customs Act, the same was seized by the Customs Officer under Mahazar.
4. His confession statement was also recorded. Since the detenue attempted to pass through the green channel without paying duty and also had given statement voluntarily admitting such possession of gold and valuables imported into India without valid documents, he was arrested on 10.9.2011 and produced before the learned Additional Chief Metropolitan Magistrate, E.O.II, Chennai on the same day.
5. The learned Magistrate remanded the detenu till 23.9.2011. The relatives were informed about the arrest and detention at Central Prison, Chennai. Bail was granted on 29.9.2011 with a condition that the detenu should reside within the Chennai City limit and appear before the Customs Department Chennai daily until further orders.
6. A Notice dated 21.10.2011 was issued to showcause why the gold coins weighing 1395 grams and valued at about Rs.37,21,860/-should not be confiscated under the provisions of the Customs Act. It was stated that by attempting to smuggle 175 gold coins by concealing and non-declaration amounted to smuggling under Sec.239 of the Customs Act and hence liable to be confiscated.
7. Having found the detenu knowingly and consciously attempted to smuggle the said gold coins to India by way of concealment and non-declaration to the customs Department, the proceedings under Sec.3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was initiated.
8. The Government having satisfied that the detenu has indulged in smuggling of goods and therefore, it was necessary to detain him with a view to prevent him from indulging him similar activities in future.
9. While coming to the subjective satisfaction the Government had taken into consideration all facts and materials placed before it and passed detention order on 7.12.2011 which was served on the detenu on 15.12.2011 and the detenu was arrested and detained and lodged at Central Prison, Puzhal, Chennai. The Grounds of detention was served to the detenu on 16.12.2011.
10. Challenging the detention order, the detenu himself has filed the present petition to secure and set him at liberty invoking the jurisdiction of this court under Article 226 of Constitution of India.
11. Challenging the order of detention, Mr.M. Abdul Nazeer, the learned counsel for the detenu submitted the following two contentions:
i) the detenu is an Indian born Singapore citizen and he was doing business in Singapore. He has visited many countries i
