TaxTMI 
TaxTMI 
2016 (3) TMI 1426
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....ensitive destinations were involved in smuggling gold into India and, therefore, a vigil on such passengers arriving from Dubai was made. The petitioner stated when asked that he was not carrying any dutiable/contraband goods. On a search of the body of the petitioner, ten gold bars totally weighing 10 kilograms were found in his waist coat, overcoat and pockets. A statement under Section 108 of the Customs Act was recorded from the petitioner on 13/07/2015 and on 14/07/2015. The petitioner was arrested on 14/07/2015. The petitioner revealed in his statement under Section 108 of the Customs Act that the gold was provided to him at Dubai by Tharique Akbar Mohamed. The petitioner was expected to bring the gold to India and deliver the same to one Nibu Mathew Varghese, who was known to the petitioner earlier. In the statement, the petitioner stated that he had came to India on several occasions earlier carrying gold, that he was staying at various hotels on those occasions and that the gold was being collected from him by Nibu Mathew Varghese, who was engaged by Tharique Akbar Mohamed. It was revealed that the CCTV footages at various hotels would disclose the identity of Nibu Mathew ....
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....nhaiyalal Khushalani v. State of Maharashtra and Another 1981 KHC 524 : AIR 1981 SC 814 : (1981) 1 SCC 748 : 1981 SCC (Cri) 287 : 1981 (2) SCR 459 : 1981 CriLJ 353 in support of his submissions. In fact, the contentions raised in the Writ Petition on this aspect was the following: "The petitioner was supplied with copy of the compact disc allegedly contain the CCTV footages of the Hotels' receptions wherein the petitioner was stayed. The compact discs are not playable, hence it cannot be produced." This contention was answered in paragraph 29 of the counter-affidavit filed by the second respondent thus: "29. The averment in paragraph 5 of the writ petition that the compact discs are not playable and that the petitioner was not shown the CCTV footage copied in the CD is absolutely false and hence denied. The petitioner was shown the concerned CDs in the presence of the Joint Superintendent of Central Prison, Thiruvananthapuram under proper acknowledgment in the petitioner's own handwriting on 12/09/2015 and the same CD was handed over to him. The Joint Superintendent, Central Prison has countersigned the acknowledgment. A true copy of the said acknowledg....
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....t them......." 8. In Kamla Kanhaiyalal Khushalani v. State of Maharashtra and Another 1981 KHC 524 : AIR 1981 SC 814 : (1981) 1 SCC 748 :1981 SCC (Cri) 287 : 1981 (2) SCR 459 : 1981 CriLJ 353, the Supreme Court held that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention. 9. In the case on hand, the CCTV footages are referred to in the grounds of detention for the purpose of ensuring that what the detenu said in his statement under Section 108 of the Customs Act that he stayed in various hotels and he had dealings with Nibu Mathew Varghese is true. The CCTV footages do not as such relate to the incident which took place on 13/07/2015, which is the subject-matter of the order of detention. The details in the CCTV footages were supplied to the detenu in the form of two compact discs, on the date of his arrest itself. It is true that the compact discs should be played before the detenu so that he gets an opportunity to know the contents in the CD. That was complied with on 12/09/2015, within fifteen days as provided under Section 3(3) of the COFEPOSAAct. As ....
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....ed by the petitioner that Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act were infringed in the case. 11. The learned counsel for the petitioner submitted that a laptop was seized from the petitioner and the laptop as such was not produced before the detaining authority. The pleading in respect of this is contained in paragraph 6(a) and 6(b) of the writ petition, which reads as follows: "6(a). The petitioner used to save all his personal data in his laptop. He is a business man and a frequent traveller. His entire business accounts are kept in his laptop. The customs authority took a print of some of the pages, without giving any room for explanation concluded that these accounts are related to the smuggling activities. The laptop was not produced before the detaining authority. The entire documents contained in the laptop or laptop itself must be produced before the detaining authority. Had the entire documents been produced, the detaining authority would have reached a different conclusion. (b) The petitioner is entitled to get the entire copy of the documents kept in laptop. Without getting the entire documents it is not possible for t....
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.... Hakeem v. State of T.N. and Others 2005 KHC 1362 : AIR 2005 SC 3677 : (2005) 7 SCC 70 : 2005 (4) KLT SN 34 : 2005 SCC (Cri) 1601 : 2005 CriLJ 3745, the Supreme Court held thus: "The principle of supply of the material documents to the detenu was considered by this Court in the matter of Radhakrishnan Prabhakaran v. State of T.N., (2000) 9 SCC 170 : 2000 SCC (Cri) 1198. In Para 8, this Court has said: "8. We make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him." From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which the reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opi....
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....R 1976 SC 1167 : 1976 CriLJ 860, the Supreme Court considered a similar contention. The appellant in that case was prosecuted for the offences under Section 135(a) and 135(b) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947. The question which was raised before the Supreme Court in Veera Ibrahim's case was whether Section 108 of the Customs Act, 1962 is ultra vires the provisions of Clause 3 of Article 20 of the Constitution of India. Article 20(3) of the Constitution of India provides that no person accused of an offence shall be compelled to be a witness against himself. The Supreme Court held, relying upon the Constitution Bench decision in Ramesh Chandra Mehta v. State of West Bengal 1968 KHC 263 : 1968 KLT SN 49 : AIR 1970 SC 940 thus: "9. The abovementioned observations are a complete answer to the contention of the appellant. In the light of these principles, it is clear that when the statement of the appellant was recorded by the customs officer under Section 108, the appellant was not a person "accused of any offence" under the Customs Act, 1962. An accusation which would stamp him with the character of such a person was le....
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....to the customs officers on a summons issued to him under Section 108 of the Customs Act. The Supreme Court held that a customs officer conducting an enquiry under Section 107 or 108 of the Customs Act is not a Police Officer and the person against whom the enquiry is made is not an accused and the statement made by such a person in that enquiry is not a statement made by the person accused of an offence. 21. In view of the decisions of the Supreme Court mentioned above, there can be no doubt that the statement dated 25/07/2015 recorded under Section 108 of the Customs Act is not hit by Article 20(3) of the Constitution of India. The contention that the petitioner was not summoned before taking the statement dated 25/07/2015 is not correct, since he was summoned as per Ext. P7 notice dated 24/07/2015 issued under Section 108 of the Customs Act. The further contention raised by the petitioner that Ext. P5 profit sharing account taken from the laptop pursuant to the statement dated 25/07/2015 should not have been relied upon by the detaining authority on the ground that the petitioner was under detention, is also without substance. 22. The learned counsel for the petitioner subm....