TaxTMI 
TaxTMI 
TaxTMI 
2007 (8) TMI 703
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....shti Overseas (IEC No. 0300007442) which have arrived in Mumbai on board Cathay Pacific Airlines on 18/19th February, 2006 and which have been declared to contain 'plastic parts of toys' are actually containing analog watch movements. The officers of DRI, Mumbai, traced the two consignments which had arrived at Air Cargo Complex, Sahar, Mumbai, under IGM No. 2072/2006, dated 18-2-2006 vide HAWB 162151 in the name of M/s. Orbit International and HAWB 162152 in the name of M/s. Drashti Overseas and detained the same on 20-2-2006 for detailed examination. The said two consignments covered under B/E No. 546584, dated 20-2-2006 of M/s. Orbit International and B/E No. 546586, dated 20-2-2006 of M/s. Drashti Overseas were examined on 21-2-2006, in detenu's presence as CHA of M/s. Swastik Shipping Agency and Shri M.S. Rawat, Asstt. Security Manager, Airports Authority of India (AAI). The said two consignments were declared to contain 'plastic parts of toys' and on examination the same were revealed to actually contain 400000 pieces of analog watch movements. The said two consignments totally containing 400000 analog watch movements, valued at approximate Rs. 68,00,000/- (IMV) were seized. ....
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....posal of the goods in India. He has merely facilitated the clearance of goods. He could, therefore, never have been detained with a view to preventing him from smuggling goods. Mr. Khan also drew our attention to the affidavit of the detaining authority. He pointed out that in paragraph 6 of the affidavit, the detaining authority has clearly stated that in order to facilitate smuggling of goods, the detenu has taken active part by procuring the IEC Code of one Yogesh Merchant. Therefore, it is the case of the detaining authority that the detenu merely facilitated smuggling. Drawing our attention to Section 107 of the Indian Penal Code, the learned counsel contended that Section 107 defines the term "Abetment of a thing". The learned counsel contended that the Explanation 2 thereof, states that whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Mr. Khan submitted that, therefore, the detenu may at the most be called an abettor. In support of his submission, he relied on the judgments of this Court in Rajaram Singh v.....
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....Act and all its grammatical variations and cognate expressions shall be construed accordingly." 8. Under Section 3 of the COFEPOSA Act, a person can be detained with a view to preventing him from (i) smuggling goods or (ii) abetting the smuggling of goods or (iii) engaging in transporting or concealing or keeping smuggled goods or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. Each activity is a distinct head. It is argued that if a person is indulging in abetment of smuggling of goods, he cannot be detained with a view to preventing him from smuggling goods. 9. Since Mr. Mhaispurkar has heavily relied on the judgment of the Supreme Court in Narendra Umrao's case (supra), it is necessary to refer to it. In that case, the detenu was detained with a view to preventing him from smuggling goods. It was urged that there was non-application of mind on the part of the detaining authority because the actual smuggling was done by someone else. The detenu had merely instigated, organized and facilitated the act of smuggling....
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....me linkage should be established between actual smuggling and steps taken to facilitate smuggling. The facts will have to be closely scrutinized to ascertain whether the detention order is issued on correct grounds. 14. In the present case, the detenu is a Custom House Agent. The seized consignments were imported by one Umesh Shetty, who was introduced to the detenu at Sahar Airport. Umesh Shetty told the detenu that he was planning to import analog watch movements by misdeclaring them as parts of plastic toys. He told the detenu that he needed Import Export Code for importing the said analog watch movements and he should arrange for them. The detenu knew Yogesh Merchant. Yogesh Merchant had two Import Export Codes i.e. M/s. Orbit International and M/s. Drashti Overseas. The detenu offered them to Umesh Shetty for importing analog watch movements. Umesh Shetty agreed to pay the detenu Rs. 1 lac for each consignment. 15. Yogesh Merchant has in his statement stated that in August, 2005, the detenu met him and told him that he had a person who wanted to import some goods from China and that this person did not have an Import Export Code. The detenu asked him whether he can....
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....by the judgment of this Court in Mahinder Singh's case (supra). In that case, the detenu was detained with a view to preventing him from dealing in smuggled goods otherwise than by engaging in, transporting or concealing or keeping smuggled goods. The detenu had allowed his Import Export Code number to be used for smuggling goods from Dubai. This Court observed that there appears to be no overact by the detenu for smuggling goods or otherwise dealing with them other than by allowing his license to be used for the purpose of import. This Court observed that the detenu's activities are in the nature of abetment of smuggling activities by allowing the use of his Import Export Code number and there was no material to show that he dealt with the smuggled goods. Therefore, merely procuring Import Export Code was considered as abetting of smuggling of goods. In the present case also, the detenu has arranged for Import Export Code. His other activities pertain to clearance of the goods. There is nothing to indicate that the detenu had actually smuggled goods to India. There is no material to indicate that he had anything to do with the said goods prior to their landing in India. 20. ....