TaxTMI 
TaxTMI 
2007 (8) TMI 362
X X X X Extracts X X X X
X X X X Extracts X X X X
....r along with the compilation of documents. 2. The brief facts are that the Intelligence Officers of D.R.I. Mumbai mounted surveillance with panchas in the Arrival Baggage Hall of Module 2C, at Chatrapati Shivaji International Airport, Mumbai and observed the activities of employees of various Courier Companies on 2-4-2006 from 7.30 p.m. onwards. During the said surveillance period, it was noticed that the detenu was opening a courier bag from the three bags near the conveyer belt bearing OCS markings. It was also found that the detenu thereafter removed two brown colour cartons and was repacking the same in another courier bag belonging to M/s. Fedex. The D.R.I. Officers, immediately became suspicious and apprehended the detenu and the detenu appears to have stated to the Officers that he was an employee of OCS and that the two brown colour cartons, which he had removed from OCS Courier Bag and had put into M/s. Fadex Courier bag, the Courier bags were containing RAM cards and the same were to be taken out of the baggage hall without filling the prescribed documents/declarations to the Customs Authority and also without payment of Customs Duty, by concealing the same in the othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y at various levels and the detention order was finally issued on 17-8-2006 and the detenu was arrested and detained on 14-9-2006. 3. Mrs. Ansari, the learned Counsel appearing on behalf of the detenu challenged the aforesaid detention order only on two grounds, though various other grounds are raised in the Petition. The first ground is that the detention order has been passed alleging that the detenu ought to be detained so as to prevent him in future from smuggling the goods. The learned Counsel for the Petitioner also contended that the activity alleged against the detenu would not amount to smuggling of goods and that at the most it would fall under Section 3(ii) and/or 3(iii) of the said Act i.e. abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods. Therefore, Mrs. Ansari strongly contended that the detention order was passed by total non-application of mind in the sense that there was no allegation of any kind of smuggling alleged against the detenu in view of the facts disclosed hereinabove. According to the learned Counsel for the Petitioner, the aforesaid order cannot be sustained at all, since the only ground on which th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Airport in the Customs Area. Accordingly, the detention order was set aside. Therefore, Mrs. Ansari contended that in the instant case also, as the services of the detenu have been terminated by the Courier Company, the detenu would not be able to enter the customs area and there was no likelihood of indulging in such a prejudicial activity and as such, the Detention Authority though aware of the same, had wrongly passed the said detention order by non-application of mind. 6. Therefore, Mrs. Ansari contended that on both the aforesaid grounds, the detention order dated 17-8-2007 should be quashed and set aside by this Court. 7. Mr. Mhaispurkar, the learned A.P.P. appearing on behalf of the Respondents, contended with regard to first ground i.e. activity of the detenu would only amount to abetting of smuggling and not actual smuggling and as such, the detention order passed was bad. With regard to the said contention, Mr. Mhaispurkar brought to our notice the definition of the word "Smuggling" under Section 2(39) of the Customs Act, 1962, which reads as under :- 2(39) "Smuggling", in relation to any goods, means any act or omission which will render such goods liable to co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Customs Act. Mr. Mhaispurkar contended that there is no question of any non-application of mind by the detaining authority as the facts disclosed clearly indicate that the activities of the detenu in the month of April, 2006 were that of "smuggling". 10. With regard to the second ground of challenge i.e. the employment of the detenu was terminated in the month of April, 2006, hence there was no likelihood of indulging in such an act of smuggling, Mr. Mhaispurkar contended that in the aforesaid judgment of the Division Bench relied upon by the learned Counsel for the Petitioner i.e. Arvind Sudkoji Mohite v. State of Maharashtra in Criminal Writ Petition No. 747 of 1985 dated 8-1-1986, this Court had categorically held that no explanation was given by the detaining authority as to why the order of detention was passed, when the services of the detenu were terminated Mr. Mhaispurkar therefore contended that in the instant case, the Authority was fully aware of such termination of services and even then the Authority has given reasons as to why the detenu is still likely continue to carry out such smuggling activities specially in paragraph 10 of the affidavit of Principal Secreta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e circumstances, Mr. Mhaispurkar contended that no fault can be found on this ground that the Detaining Authority has not applied its mind with regard to the termination of the services of the detenu and that as such the detenu would not be able to indulge in such prejudicial activities. 13. Having heard both the learned Counsel and after considering all the aforesaid judgments with regard to the first contention of Mrs. Ansari, that the activities of the detenu at the most involved only abetting of smuggling and not "smuggling", we are unable to accept the said contention in the light of the clear definition of word "Smuggling" under Section 2(39) read with Section 111(i) and (j) of the Customs Act. Section 111(i) and (j) make it abundantly clear that the activities indulged by the detenu would clearly fall within the same and as such the goods would be liable for confiscation and if that be so, it amounts to an act of smuggling. There is no dispute that the detenu had removed both the brown cartons containing RAM cards and had kept them in a Courier bag containing only documents and samples and he had also admitted that the same were for the purpose of clearing it without paym....