TaxTMI 
TaxTMI 
2020 (7) TMI 564
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.... Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'). 2. The factual matrix as is relevant and germane for the adjudication of the present proceeding, is adumbrated as follows: i. On receipt of specific intelligence, a passenger namely, Shri Raju Singh Sachdeva (for short 'Shri Sachdeva'), resident of SF/2 Prerna Apartment, New Gandhi Nagar, Ghaziabad, U.P.-201001, holder of Indian Passport No. R3111421, issued at Ghaziabad, was intercepted near the Exit Gate of the Arrival Hall, Terminal-I, IGI airport, New Delhi on 16.05.2019. Shri Sachdeva had arrived from Bangkok to Varanasi by flight No. 6E 98 dated 16.5.2019 and from Varanasi to New Delhi by flight No. 6E 6635 on the said date. Shri Sachdeva was carrying one checked-in baggage and two hand bags. Upon being asked by the Customs Authorities whether he was carrying any dutiable or prohibited goods, Shri Sachdeva replied in the negative. However, not being convinced by his reply and in view of the specific intelligence received, Shri Sachdeva was brought to the Arrival Hall, Terminal 3 of the IGI Airport, New Delhi for further examination. Thereafter, in the presence of ....
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....mbh' on another side over a paper slip bearing the dated signatures of two independent Panchas, Shri Sachdeva and the Customs Officers. A Detention Receipt No.35301 dated 17.05.2019 was also issued in respect of above said seized Gold. Further, all concealing material viz. 29 sling bags were also placed in a bag and sealed with Customs Seal bearing "Customs PC-IGl" on one side and 'Ashoka Stambh' on another side over a paper slip bearing the dated signatures of the independent Panchas, Shri Sachdeva and the Customs Officers. A Detention Receipt No.35302 dated 17.05.2019 was also issued against it. ii. During investigation of the case, the statement of Shri. Sachdeva was recorded under section 108 of the said Act on 17.05.2019, wherein, he inter alia stated that, he could read, write, speak and understand English and Hindi language; that his family apart from him consisted of his wife and two children who stay with him; that his wife was housewife and his son and daughter were studying in 10th standard and graduation respectively; that he was born and brought up in Ghaziabad and that he was a law graduate from Meerut University; that he was using two mobile phones (One Gionee....
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....also paid amounts for his tickets, boarding and lodging. vi. Lastly, Shri Sachdeva stated that upon his exit from the airport Terminal he was to be contacted by the Detenue or his associate, at a place chosen for the delivery of the subject gold and he has also admitted to have illegally imported gold weighing 14 Kilograms in total during his seven previous visits, valued at Rs. 4,16,57,798/-, thus bringing the total value of the smuggled gold in the past and during the current visit to a sum of Rs. 4,76,08,912/-. vii. In view of the afore-extracted depositions of Shri Sachdeva, in relation to the Detenue's role and involvement in the business of smuggling of gold hidden in garments, brought from the Detenue's associates in Bangkok, surveillance was kept on the latter's activities and his travel history and thereafter the Detenue was finally apprehended on 30.06.2019. In the Detenue's statement recorded on 30.06.2019, under Section 108 of the said Act, it was stated by the Detenue that, he was born and brought up in Delhi and after completing his schooling from Ravindra Public School, Pitampura he started doing choreography for wedding events and also engaged himself in the b....
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....gms approx. 11. 12.01.19 Event purpose 15.01.19 Delhi Event purpose 12. 24.01.19 Un-quantified currency 26.01.19 via Varanasi 450 gms approx 13. 28.01.19 Un-quantified currency 30.01.19 via Varanasi 400 gms approx 14. 04.02.19 Un-quantified currency 06.02.19 via Varanasi 450 gms approx 15. 11.02.19 Un-quantified currency 12.02.19 via Varanasi 300 gms approx 16. 24.02.19 Un-quantified currency 26.02.19 via Varanasi 500 gms approx 17. 27.02.19 Un-quantified currency 02.03.19 via Varanasi 250gms approx 18. 05.03.19 Un-quantified currency 07.05.19 via Varanasi 450 gms approx 19. 12.03.19 Un-quantified currency 14.03.19 via Varanasi 400 gms approx 20. 17.03.19 Event purpose 20.03.19 via Lucknow Event purpose 21. 21.03.19 Un-quantified currency 23.03.19 via Lucknow 450 gms approx 22. 29.03.19 Un-quantified currency 03.04.19 via Lucknow 350 gms approx 23. 05.04.19 Un-quantified currency 07.04.19 via Lucknow 400 gms approx 24. 09.04.19 Un-quantified currency 12.04.19 via Lucknow 500 ....
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....the directions of Shri Tarun Jain and Ms. Neha Sharma. Further, on being asked about the approximate currency carried at the time of departure, it was revealed by the Detenu that the same would be equivalent to gold brought from Thailand. On being further asked, Detenue had disclosed of bringing the abovementioned quantity of gold in India on the direction of Shri Tarun Jain whose mobile number saved as "T007" in the phone of Detenue. It was further disclosed by him that the mobile no. of Ms. Neha Sharma was 8929607849, who had guided the Detenue in all the above visits. Predicated on the Detenue's deposition and categorical admission in relation to smuggling of foreign currency and at least 8350 gms Gold, he was arrested under section 104 of the said Act on 01.07.2019 vide Arrest Memo dated 01.07.2019. On being produced before learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, Detenue was forwarded to judicial custody till 15.07.2019 vide Order dated 01.07.2019 by learned CMM. The judicial custody was further extended up to 29.07.2019. x. That on 19.07.2019, the impugned Detention Order was passed and served on the Detenu along with the grounds of detention....
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....u) vs. K. Shivraj, Addl. Chief Secretary to the Government of Gujarat) reported as 1979 (1) SCC 222. 7. On the other hand, Mr. Ajay Digpaul, the Central Government Standing Counsel, appearing on behalf of the Union of India invited our attention to the circumstance that the Detaining Authority could not consider the 'Letter of Extrication', dated 03.07.2019, since the same was supplied by the Detenue to the Sponsoring Authority, through proper channels, only after the issuance of the subject Detention Order and therefore, this plea has been taken by the petitioner only with a motive to mislead this Hon'ble Court. Insofar as, the non-consideration of the 'Summons' and 'No Recovery Panchnama' is concerned, it was pointed out that the same were not documents relied upon by the Sponsoring Authority, since the same were not relevant or germane for determining the gravity of the offences alleged to have been committed by the Detenue, to the satisfaction of the Detaining Authority. It was also urged on behalf of the official respondent that the assertion made by the Detenue that his voluntary statements, recorded under Section 108 of the said Act, were not in his handwriting, as the sa....
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....t Gold in the form of buttons of ready made shirts wherein you used to conceal Gold rings in the buttons of shirt. These two trips were made from Bangkok to Delhi via Calcutta and then from Calcutta to Delhi by domestic flights for which all expenses were paid by Shri Tarun Jain. You i.e. Greeshm Sharma admitted that you used to handover the Gold brought clandestinely to Shri Tarun Jain but you were not aware as to how he was disposing it off. You further deposed that after these 2 trips, you found this job non-remunerative and stopped doing that from 2014-15 till November 2018. b) On being asked, you i.e. Shri Greeshm Sharma further deposed that once again you came in contact with Shri Tarun Jain in 2018 when he persuaded you to restart bringing the Gold using the same modus operandi; as in June, 18 you visited Bangkok for your own choreography business. Shri Tarun Jain told you that when you were going to Bangkok for your own business, why did not you restart bringing Gold for him (Tarun Jain) on return and he (Tarun Jain) promised you to take care of all your air travel and lodging expenses for Bangkok trips. You i.e. Shri Greeshm Sharma categorically admitted that sinc....
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....pose 21. 21.03.19 Un-quantified currency 23.03.19 via Lucknow 450 gms approx 22. 29.03.19 Un-quantified currency 03.04.19 via Lucknow 350 gms approx 23. 05.04.19 Un-quantified currency 07.04.19 via Lucknow 400 gms approx 24. 09.04.19 Un-quantified currency 12.04.19 via Lucknow 500 gms approx 25. 18.04.19 Un-quantified currency 19.04.19 via Lucknow 500 gms approx 26. 22.04.19 Un-quantified currency 24.04.19 via Lucknow 400 gms approx 27. 27.04.19 Un-quantified currency 29.04.19 via Varanasi 350 gms approx 28. 30.04.19 Event purpose 03.05.19 Event purpose 29. 08.05.19 Un-quantified currency 09.05.19 300 gms approx Total Gold smuggled in the above visits is 8350 gms approx. c) On being further asked since you are a resident of Delhi, why you had been routing through other Airports of India while returning from Bangkok, you i.e. Shri Greeshm Sharma stated that Varanasi Airport, there was virtually no checking by Customs or very little checking by them. You admitted that this route was suggested by Shri Tarun Jain and you were following....
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.... further asked, you admitted that you had brought the abovementioned quantity of Gold in India on the direction of Shri Tarun Jain. You had his mobile number in your mobile phone saved as "T007". You further disclosed the mobile No. of Ms. Neha Sharma as 8929607849 who had guided you in all the above visits. c) In view of the depositions and categorical admission with regard to smuggling of foreign currency and atleast 8350 gms Gold, you i.e. Shri Greeshm Sharma were arrested under section 104 of the Customs Act, 1962 on 01.07.2019 vide Arrest Memo dated 01.07.2019 and produced before the Hon'ble Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, after your medical examination conducted, at RML Hospital, New Delhi. You i.e. Shri Greeshm Sharma was forwarded to judicial custody till 15.07.2019 vide Order dated 01.07.2019 of the Hon'ble Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. The judicial custody has been further extended up to 29.07.2019. You i.e. Shri Greeshm Sharma have filed a bail application on 15.07.2019 (through your advocate) before the Hon'ble Court of CMM, Patiala House, New Delhi, which is fixed for hearing on 22.07.20....
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....rroborative evidences, as aforesaid, it is evident that Shri Raju Singh Sachdeva is deeply involved in organised smuggling of Gold into India being a part of syndicate run by Ms. Neha Sharma and Shri Tarun Jain actively aided and abetted by Shri Greeshm Sharma i.e. you. His involvement appears to be deep rooted which is amply manifested by the unique modus operandi, number of persons involved, scale of operation, his contacts and dealings with other members of the syndicate, viz., Shri Monish Kumar and Shri Vikas Kumar with a well thought out plan. Evidences collected, so far, clearly indicate that the smuggling network is being run and operated by common mastermind Shri Tarun Jain, Ms. Neha Sharma and Shri Greeshm Sharma i.e. you. 2. In view of the facts, circumstances, findings, corroborative evidences and your role in the whole operation, I am satisfied that you i.e. Shri Greeshm Sharma are an important part of a well organised smuggling syndicate involved in smuggling of foreign origin gold and foreign currency. You along with other associates are in the habit of regularly smuggling goods into India from abroad without declaring the same before the Customs Authorities ....
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.... of goods and engaging in transporting or concealing or keeping smuggled goods in future. 7. As regards retraction of you i.e. Shri Greeshm Sharma vide your bail application dated 15.07.2019,1 have noted that your house was searched on 30.06.2019 where you i.e. Shri Greeshm Sharma were found and as per the Summons issued to you, you visited the IGI airport and your statements were recorded under section 108 of the Customs Act, 1962 on 30.06.2019 and 1.07.2019 in total 12 pages of your own handwriting. So your allegation of signing of pre narrated statements and blank papers is nothing but an afterthought. Further, all retraction towards your voluntary statements recorded on 30.06.2019 and 1.07.2019 under section 108 of Customs Act, 1962 are after a lapse of nearly 15 days which itself justifies that your retraction is just an afterthought to mislead the investigation. I have also taken note of documentary evidences, corroborative statement and available records relating to your involvement in the syndicate of smuggling of gold and foreign currency and hence, I am satisfied that, your retraction of statements is devoid of merits." 9. In view of the foregoing, it would be....
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....-Recovery Panchnama', referred to vigorously on behalf of the Detenue. Insofar as, the 'Summons' dated 30.06.2019 is concerned, the same was duly received by the Detenue, who put his signatures on the face of it, as token of receipt of the same and voluntarily went to the IGI Airport, in compliance thereto. Therefore, the assertion of the Detenue that, the said 'Summons' were not relied upon by the Sponsoring Authority or placed before the Detaining Authority does not vitiate the 'subjective satisfaction' recorded by the Detaining Authority, since the same was not relevant for the formation of the 'subjective satisfaction' of the Detaining Authority. Further, the Detenue's assertion that he was not even supplied with a copy of the said 'Summons' is factually incorrect and does not further his case. Coming to the submission qua the 'Non-Recovery Panchnama', the Sponsoring Authority did not rely upon that document, since the search proceedings did not result in the recovery of any incriminating documents, other than some personal documents of the Detenue, such as PAN Card, Aadhaar Card and Driving License. Therefore, the Panchnama, in our view, cannot be said to be material, the non-....
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....ity and interfere with the order of detention. It does not mean that the subjective satisfaction of the Detaining Authority is immune from judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested." 13. On a conspectus of the decisions of the Hon'ble Supreme Court in Dimple Happy Dhakad (supra) and Ankit Ashok Jalan (supra), it is axiomatic that, though procedural safeguards are required to be rigorously adhered to and that although the courts must lean in favour of personal liberty of the citizens and remain conscious and zealous in upholding the personal liberties of citizens but in appropriate cases the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. It is observed that an order of detention is clearly and unequivocally a preventive measure devised to afford protection to the society and particularly where the preventive detention is aimed to protect the security and safety of the nation, the Courts must strike a balance between the liberty of an individual and the needs of the society. 14. In the present case, it is observed tha....