TaxTMI 
TaxTMI 
2008 (8) TMI 12
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....the Petitioner/Detenu. It is not in dispute that the items and quantities declared by the Petitioner/Detenu in the Embarkation Form were found drastically less than what was actually contained in the baggage. The Customs Department assessed the duty at Rupees Nine Lac Eighty Thousand and Fifty Only instead of Rupees Sixty Thousand mentioned by the Detenu. The Department took note of the fact that between the period August, 2004 and October, 2007 (that is a period of three years and two months) the Detenu had made as many as fifty-one journeys, of very short duration, to Thailand and two journeys to Hong Kong. Mr. Jain, learned counsel for the Detenu, has conceded that the Detenu made his livelihood by purchasing goods abroad and thereafter importing them into India in his personal baggage. He has however argued that this is a legitimate livelihood since imports can be freely made on payment of the duty attracted against such importation. 3. It has been vehemently contended on behalf of the Detenu that the procedure adopted by the Department was not in consonance with law. We may only record that the Detenu was unable to produce any document evidencing the price actually pai....
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....that there is no likelihood of the Detenu being enlarged on bail and that successive applications have been rejected since he was taken into custody on 18.10.2007, under Section 132/135(1)(a) of the Customs Act. Reliance has been placed on the following observations that are to be found in Rajesh Gulati "vs- Govt. of NCT of Delhi, (2002) 7 SCC 129: It cannot be overemphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3(1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on the detaining authority's emotions, beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. In this case, the detaining authority's satisfaction consisted of two parts-one: that the appellant was likely to be released on bail and two: that after h....
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....l Remand was applied for and ordered by the ACMM, New Delhi on the application of the Customs Department on 19.10.2007. It is trite that the importer or passenger, as the case may be, whose valuation of the imported goods has not been accepted by the Customs Department, would not automatically or invariably be prosecuted under Section 132/135 of the Customs Act. Requisite mens rea would have to be evident to justify prosecution. We do not intend to make any observations so far as the pending prosecution is concerned. We have mentioned it only for the reason that the entire conspectus of facts would have had to be taken note of in order to arrive at the decision to prosecute him. Everyday scores of passengers pay duty as per the valuation and assessment of the Department even though they may not agree with it. Prosecution of each one of them would result in the travesty of the law. 9. Returning to the facts of the case in hand it appears to us that the relevant material was already available with the Respondents on 18.10.2007. The only investigation or inquiry was restricted to the calling for a Report from the Department in Kolkata on 25.10.2007; the Report was received on 1.11.20....
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.... Mullin v. W.C. Khambra, (1980) 2 SCC 275 : (AIR 1980 SC 849); Mohinuddin alias Moin Master v. District Magistrate, Beed, (1987) 4 SCC 58 : (AIR 1987 SC 1977); Rama Dhondu Borade v. V.K. Saraf, Commr. of Police, (1989) 3 SCC 173 : (AIR 1989 SC 1861); Aslam Ahmed Zahire Ahmed Shaik v. Union of India, (1989) 3 SCC 277 : (AIR 1989 SC 1403); Mahesh Kumar Chauhan alias Banti v. Union of India, (1990) 3 SCC 148 : (AIR 1990 SC 1455), right upto its reiteration in Gazi Khan alias Chotia v. State of Rajasthan, (1990) 3 SCC 459 : (AIR 1990 SC 1361). 12. Regretfully the views of the Apex Court remain unheeded in the Administration. Keeping the plethora of precedents of the Hon"ble Supreme Court in perspective, we are constrained to record our displeasure with the impugned decision of the Detaining Authority. The time is not too distant when the decision or conduct of the Detaining Authorities is seen as so deliberately contumacious as to require the initiation of contempt of Court proceedings. 13. There is one further factor for which no answer has been furnished by the Customs Department. A Representation was made by the Detenu on 11.3.2008 and a Reference to the Advisory Board w....
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....VICE OF BARE GROUNDS DATE OF SERVICE OF RELIED UPON DOCUMENTS TIME GAP (NO. OF DAYS) QUASHED OR REVOKED BY COURT OR CENTRAL GOVERNMENT 1. VIRENDRA SINGH VS-UOI 1.11.80 5.11.80 4 DAYS SUPREME COURT 2. LAXMAN HARWANI 28.11.80 3.12.80 5 DAYS BOMBAY HC 3. SUMAN B. SOMANI 31.8.88 1.9.88 1 DAY BOMBAY HC 4. HAJI HOHD.USMAN BHATI 24.11.95 29.11.95 5 DAYS BOMBAY HC 5. THAKURDAS U. KAMRA 27.6.95 30.6.95 3 DAYS BOMBAY HC 6. SANJAY U. MAHATRE 27.12.95 30.12.95 3 DAYS BOMBAY HC 7. SHASHI GOYAL 21.2.06 24.2.06 3 DAYS DELHI HC 8. UOI Vs. SHASHI GOYAL 21.2.06 24.2.06 3 DAYS SUPREME COURT 9. GURBAX @ SAM BIRYANI 28.5.88 30.5.88 2 DAYS CENTRAL GOVERNMENT 15. In T.A. Abdul Rahman -vs- State of Kerala, (1989) 4 SCC 741 = AIR 1990 SC 225 the Supreme Court opined that "when there is unsatisfactory and unexplained delay between the date of detention and the date of securing arrest of the Detenu such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the Detenu ....
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.... merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the Detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the Detenu with a view to preventing him from acting in a prejudicial manner". 22. The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been ass....
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.... is not extraordinary or unreasonable to expect the Respondents to anticipate the filing of a Representation by the Detenu, which, in the present case, was served on the Respondents on 11.3.2008. Its disposal cannot be left to the whims and convenience of the Respondents, especially since it is a preventive and not a punitive detention that is being dealt with. We find no reason why the requisite decision was not taken on the representation "as soon as may be .... but ordinarily not later than five days". The unsatisfactory and legally unacceptable reason which has been proffered is forthcoming, however that the Respondents were concentrating on making the Reference to the Advisory Board within the statutory period of five weeks. The Respondents are clearly mistaken and misdirected in doing so. They should have instead concentrated first on disposing of the Representation of the Detenu. 18. It is manifestly evident that the difference between preventive and punitive detention has escaped the comprehension of the Respondents since their manner of dealing with the issue shows that they discern no distinction so far as the punitive and preventive detention is concerned. The rem....