TaxTMI 
TaxTMI 
2024 (4) TMI 919
X X X X Extracts X X X X
X X X X Extracts X X X X
....g approximately 700 metric tonnes of smuggled diesel oil of foreign origin, which would be offloaded in several barges and then would be carried to coast. Pursuant thereto, on 21.12.2004, DRI officials spotted vessel by the name of M.T. AL SHAHABA which was found carrying High Speed Diesel (HSD)/Marine Gas Oil being brought from Muscat, Sultanate of Oman into Indian waters, illegally. Sayyed Hussain Madar @ Chand (hereinafter referred to as Detenu) was also found present on said vessel. It was learnt that he was the one who had also arranged for the barges and tow boats for the purposes of smuggling of said oil. Thus, it came to fore that huge quantity of the diesel oil was being smuggled with no import documents. The entire such diesel totalling 770.00 C.MTR weighing 635.556 metric tonnes, valued at more than Rs. 2.30 crores, was seized on 21.12.2004 under the provision of Customs Act 1962. 4. Statement of detenu was also recorded under Section 108 of Customs Act, 1962. 5. All the crew members of the barges and two tow boats and officers/crew members of said Vessel AI Shahaba, in their voluntary statements recorded under Section 108 of Customs Act, 1962, also confirmed the activ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the detenu in English language is violative of the rights provided under Article 21 of the Constitution of India. There is also allegation with regard to non-supply of some relevant documents which were asked for. These are the grounds on which the counsel for the detenu seeks to elaborate but since only six days are left, it may not serve useful purpose for which the petition is filed. Counsel for detenu states that in case respondents draw up proceedings under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, the detenu should be at liberty and allowed to raise all these issues in a fresh petition. We grant such liberty to the detenu. The petition stands dismissed as withdrawn with liberty to the detenu to raise all issues and question the detention order in case any proceeding under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is initiated by the respondents." 12. As per petitioner herein, action against detenu was initiated under SAFEMA on 01.01.2009. Detenu challenged the same, during his lifetime, by filing Criminal Writ Petition 406/2009 in the High Court of Judicature of Bombay. 13. Detenu, unf....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... upon him. iii. Impugned order suffers from vice of non-application of mind. As per allegations, when the vessel was found in Indian customs waters, detenu was allegedly pumping diesel from the vessel into the barges but the detaining authority did not take note of the fact that responsibility of bringing the diesel oil was not of the detenu but was that of Bobby Chully and, therefore, there was no occasion to have labelled the detenu as smuggler of the goods. It is also contended that role of detenu, on the face of allegations, was merely to transport the diesel which had already been smuggled into and, therefore, there was no basis to either label him as a smuggler or to have passed any detention order with a view to prevent him from indulging in smuggling. iv. The documents demanded by the detenu were not supplied to him and as a result, the detenu could not make purposeful and effective representation against the impugned order of detention. 20. All such contentions have been refuted by the respondents. 21. We have carefully gone through the material on record and given our anxious consideration to rival contentions. 22. It is claimed by respondents that the detenu had m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntage of his own wrongful conduct. 28. During course of arguments, original record was also produced in order to show the kind of efforts made by the sponsoring authority and executing authority executing service upon detenu and we have no hesitation in holding that respondents had made wholehearted efforts to serve such order upon detenu but detenu himself is to be blamed as he seemed to avoid the service thereof. 29. Detention order is dated 02.05.2005 and when his residential premises i.e. Maneka Building No. 175, Second Floor, Room No. 23, Jail Road (East), Dongri, Char Nal, Mumbai-400009 was visited by the concerned officials on 10.05.2005, his wife was found present who told them that detenu was out of town. Team of concerned officials visited said premises on 29.06.2005. Again, detenu was not present though his son was present who informed that he did not know the whereabouts of his father. Next visit is stated to be of 24.08.2005 and again detenu was not available at his said premises. All these reports are of concerned intelligence officials of DRI, Mumbai and there is no reason to disbelieve or discard such reports. 30. Above three attempts were made by the sponsoring ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch son advising him to ask his father to immediately surrender before the authorities concerned so that once the detention order was served upon him, he could exercise available remedies. 42. It is also admitted fact that the detention order was eventually served on detenu on 23.08.2006 when he had been detained by the Crime Preventive Branch, CID, Mumbai. 43. Be that as it may, it is very much apparent from the facts placed before us that both the authorities i.e. sponsoring authority and executing authority made constant efforts to serve and execute the detention order but detenu, very conveniently, avoided the same. There is nothing before us which may indicate that these reports are false or manipulated. 44. We rather feel that detenu has acted smart and is trying to reap fruits of his own wrongs. If delay is attributed on account of the conduct of the detenu, concerned authorities cannot be blamed at all. 45. We may also refer to Vinod K Chawla Vs. Union of India & Ors. (2006) 7 SCC 337 wherein, the Apex Court had occasion to consider the effect of delay in execution of detention order and it observed that when the detenu had evaded arrest and absconded and in spite of be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich the properties were acquired, naturally, there might not be any adverse action of any kind under SAFEMA. Thus, the petitioner can always respond to such notice appropriately. 50. Coming back to the instant petition, there is nothing before us which may compel us to quash the detention order. 51. Contentions made by the petitioner are found to be without any substance. There is nothing to indicate that detenu did not know English and it is also quite obvious that detenu was evading service and execution of the 'detention order' and since the repeated visits at his premises did not yield any result, eventually, publication had to be carried out in newspaper. 52. There is also nothing before us which may portray that the time lapse, between detention order and its execution, is such as would lead to the inference that the live-link between the prejudicial activity of the detenu and the object of detention, namely, to prevent him from indulging in such prejudicial activity, stood snapped. 53. And yes, need we remind ourselves that there is no hard and fast rule or strait-jacket formula and each case has to be evaluated on the basis of its peculiar factual matrix. 54. Before pa....