TaxTMI 
TaxTMI 
2019 (12) TMI 23
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.... PETITIONER 2. Mr. Rakesh Tiku, learned senior counsel for the petitioner stated that the alleged recoveries in the present case had been falsely attributed to the detenue inasmuch as the concerned officer had illegally clubbed all the recoveries made from four different passengers and attributed the same to the detenue. He also pointed out that since the drones had been recovered from three checked-in bags having no luggage tags, implantation of the same could not be ruled out. 3. Learned senior counsel for the petitioner submitted that COFEPOSA had been wrongly invoked in the present case. In support of his submission, he relied upon the notification F.No.671/14/2012 Cus. VIII dated 3rd August, 2012 passed by Ministry of Finance, Department of Revenue wherein it has been stated that COFEPOSA cannot be invoked until the attempted duty evasion is Rs. 50 lakhs or the value of the goods is Rs. 2 crores. He emphasized that the value of the recovered goods in the present case had been exaggerated and the market value of the same was much less than Rs. 50 lakhs. He stated that even if the value attributed by the respondents is to be believed at Rs. 1.09 crores, the same falls shor....
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....uires to be accepted. In the instant case as the facts reveal that there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded. Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the facts and circumstances of the case." 5. Learned senior counsel for the petitioner submitted that the impugned detention order was illegal as the ordinary criminal law was sufficient to deal with the case of the detenue. He emphasised that the impugned detention order should not have been passed as the detenue was already in custody and there was no likelihood of him being released inasmuch as three of his bail applications had....
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....the appellant for bail had been rejected by the courts (indicating that this was not a "normal" case), on what material did the detaining authority conclude that there was "imminent possibility" that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the "normal" rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. (See in this context Ramesh Yadav v. District Magistrate [(1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315] , AIR at p. 316.)" 6. In view of the foregoing, he prayed that the impugned detention order dated 11th March, 2019 and the impugned order dated 7th June, 2019 confirming the said detention order, be quashed. ARGUMENTS ON BEHALF OF THE RESPONDENTS 7. Per contra, Mr. Ajay Digpaul, learned counsel for the Respondent Nos. 1 & 2 vehemently denied that the alleged recoveries had been wrongly attributed to the detenue. He stated that specific intelligence had been re....
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....ports of the detenue and his associates had been returned after the panchnama proceeding on 2nd February, 2019 and after their arrest on 3rd February, 2019, the said passports had been kept in 'jamatalashi' along with other articles. He pointed out that the passports could be released against an order of the concerned Court and four other accused persons had already collected their passports. 12. Learned counsel for the Respondent Nos. 1 & 2 submitted that the notification F.No.671/14/2012 Cus. VIII dated 3rd August, 2012 passed by Ministry of Finance, Department of Revenue was no bar to apprehend the detenue as the detenue was a kingpin and a repeat offender and consequently, he would fall under clause 'a' of the exceptions mentioned in the notification. He pointed out that as mentioned in the counteraffidavit filed on behalf of the Respondent Nos. 1 and 2, the detenue had been involved in four cases prior to his detention and the present case was his fifth offence. 13. In view of the aforesaid, he stated that the Detaining Authority had issued a legally tenable impugned detention order after due consideration and proper appreciation of the facts. COURT'S REASONING THE....
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....Intelligence (Hqrs), New Delhi had arrested the accused Shri Harmeet Singh, S/o Shri Jagpal Singh, who is the brother of Shri Gagan Jot Singh, in a case of smuggling foreign currency out of India equivalent to Rs. 1.86 crores (approx.). Shri Gagan Jot Singh could not be arrested in this case as he remained underground for a considerable period. However, he was a co-noticee in the case. The case has since been adjudicated vide O-I-O No. 157/Dr.Amandeep Singh/ADC/2018 issued under C. No. VIII (AP) 10/P&I/Adj/34/2017 dated 31.03.2018 wherein, the seized foreign currency has been absolutely confiscated and penalty amounting to Rs. 37,32,450/- each has been imposed upon Shri Harmeet Singh and Shri Gagan Jot Singh. b) On 13.05.2018, Jaipur Airport Customs had booked a case of smuggling of foreign currency amounting to Rs. 1.26 lakhs along with cigarettes valued at Rs. 17.21 lakhs against three persons who were carriers. They admitted that Shri. Gagan Jot Singh was the mastermind and their handler. c) Shri Gagan Jot Singh has also committed a green channel violation in which 8 Canon Cameras and 11 Canon Lens had been seized on 12.09.2018 at IGI Airport. d) On 29....
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....' upon his arrest on 3rd February, 2019 and the same was available for release upon following the due procedure. The fact that the detenue had not sought for the release of his passport cannot be misconstrued as a seizure by the Custom Department. 19. In any event, there is evidence to show that the detenue need not travel outside India to commit an offence of smuggling as he was a kingpin who had multiple associates who had been smuggling goods into India at his behest. Keeping in view his past conduct, there seems to be every likelihood of him indulging in the activities of smuggling. Consequently, the likelihood of the detenue indulging in smuggling activities was not effectively foreclosed by deposit of his passport and accordingly, the judgment in Moulana Shamshunnisa (supra) is of no help to the petitioner. SUBMISSION OF LEARNED SENIOR COUNSEL FOR THE PETITONER THAT ORDINARY LAW WAS SUFFICIENT TO DEAL WITH THE PRESENT CASE AND THE IMPUGNED DETENTION ORDER SHOULD NOT HAVE BEEN PASSED AS THE DETENUE WAS ALREADY IN CUSTODY IS UNTENABLE IN LAW. 20. It is pertinent to mention that an order of preventive detention is distinct from any action taken under criminal law. The S....
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....the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority. 8.5 In the case of Kamarunnissa (supra), this Court concluded as under: "(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody. (2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling ....