2007 (8) TMI 703 - HC - Customs

Detenu's Facilitation Not Smuggling: Order Quashed

The court found that the detenu's actions amounted to abetment of smuggling, not actual smuggling, as he facilitated the import by procuring Import Export ... Preventive detention under the COFEPOSA Act - smuggling (as defined in the Customs Act) - abetment of smuggling - overlap between smuggling and abetment - non-application of mind in detention ordersSmuggling (as defined in the Customs Act) - abetment of smuggling - preventive detention under the COFEPOSA Act - overlap between smuggling and abetment - non-application of mind in detention orders - Validity of the detention order under Section 3(1) of the COFEPOSA Act where the detenu procured and allowed use of an Import Export Code and cleared consignments misdeclared by another importer. - HELD THAT: - The Court examined whether the detenu's activities-procuring and allowing the use of an Import Export Code (IEC) of third parties and facilitating clearance of consignments misdeclared by another importer-amounted to 'smuggling' within the meaning of Section 2(39) of the Customs Act read with Section 2(e) of the COFEPOSA Act, or were limited to abetment. The Court noted that 'smuggling' is complete when goods are brought into India in circumstances attracting confiscation under Section 111 of the Customs Act (paragraphs 6-7, 11). Applying the facts, the goods belonged to and were misdeclared by Umesh Shetty; they were imported under the IECs of third parties and the detenu's role was procuring and permitting use of those IECs and effecting clearance after landing (paragraphs 14-17). The Court contrasted this with Narendra Umrao, where the detainee owned and actively controlled smuggling operations and found no similar overlap here (paragraphs 9-13, 18). Reliance on this Court's precedents showed that mere allowance of one's IEC to be used and related facilitation amounts to abetment rather than actual smuggling (paragraphs 19-20). Consequently, the detaining authority failed to establish that the detenu was engaged in smuggling itself or that overlapping grounds justified detention under the head of preventing 'smuggling' as distinct from abetment; the order therefore demonstrated non-application of mind and was contrary to law (paragraphs 18-21). [Paras 17, 18, 19, 20, 21]The detention order under Section 3(1) of the COFEPOSA Act was quashed as the material showed at best abetment by procuring and allowing use of an IEC and facilitating clearance, not acts of 'smuggling' warranting detention; the order suffered from non-application of mind.Final Conclusion: The detention order dated 16-8-2006 against the detenu is quashed and set aside and the detenu is directed to be released forthwith unless required in any other case. Issues Involved:1. Validity of detention order under Section 3(1) of the COFEPOSA Act.2. Whether the detenu's actions constituted smuggling or merely abetting smuggling.3. Application of legal precedents and definitions related to smuggling and abetment.Issue-wise Detailed Analysis:1. Validity of Detention Order under Section 3(1) of the COFEPOSA Act:The detenu, a Custom House Agent, was detained under an order dated 16-8-2006 issued by the Principal Secretary, Home Department, Government of Maharashtra, under Section 3(1) of the COFEPOSA Act to prevent future smuggling activities. The grounds of detention and supporting material were served on the detenu on 2-11-2006. The detenu was accused of facilitating the import of consignments misdeclared as 'plastic parts of toys' but actually containing analog watch movements.2. Whether the Detenu's Actions Constituted Smuggling or Merely Abetting Smuggling:The detenu facilitated the smuggling by procuring Import Export Codes (IEC) for Umesh Shetty, who imported the consignments. The detenu's counsel argued that the detenu only facilitated the clearance of goods and was not involved in the actual smuggling, which originated from Hong Kong. The detaining authority's affidavit indicated that the detenu actively participated by procuring the IEC, thus facilitating smuggling. The detenu's counsel contended that this constituted abetment under Section 107 of the Indian Penal Code, not smuggling.3. Application of Legal Precedents and Definitions:The court examined the definition of 'smuggling' under Section 2(39) of the Customs Act and Section 2(e) of the COFEPOSA Act. The Supreme Court's judgment in Narendra Purshotam Umrao v. B.B. Gujral was considered, where it was held that the term 'smuggling' is broad enough to include abetment. However, the court noted that in the present case, the detenu's role was limited to facilitating the import by procuring IECs and clearing the goods, not the actual smuggling.Detailed Analysis:- The detenu's involvement was limited to procuring IECs from Yogesh Merchant and clearing the goods imported by Umesh Shetty, who misdeclared the goods as plastic toy parts.- The court found that the detenu's actions did not constitute 'smuggling' as defined under Section 2(39) of the Customs Act and Section 2(e) of the COFEPOSA Act, but rather abetment.- The court referenced the judgment in Mahinder Singh Balwant Singh Oberai v. The State of Maharashtra, where a similar role of procuring IECs was considered abetment, not smuggling.- The court also referenced Rajaram Singh v. State of Maharashtra, where the detenu's role in facilitating smuggling was deemed abetment.Conclusion:The court concluded that the detenu's activities amounted to abetment of smuggling, not actual smuggling. The detention order was found to suffer from non-application of mind and was contrary to law. The order of detention dated 16-8-2006 was quashed and set aside, and the detenu was ordered to be released forthwith unless required in any other case. The petition was disposed of accordingly.