AHAMED NASSAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner has challenged the detention order dated 28th April, 1999 under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA'). The detention order was passed by Shri M. F. Farooqui, Secretary to the Government of Tamil Nadu Public (SC) Department, Chennai which reads as under:

(2.) The detenu (Petitioner) arrived at Anna International Airport, Chennai on 12th March, 1999 by Indian Airlines flight from Singapore along with three pieces of baggage, viz., one card board carton marked by Sony VCD MHC-V 818, one card board carton marked Sony VCD SS-V 818 and one green colour 'VENO' zipper shoulder bag and one transparent plastic duty free shop bag as hand luggage. He after completing his immigration formality collected his checked in baggage consisting of three pieces from conveyer belt No. 2 and proceeded to table No. 11, where he declared to the Superintendent in charge that he was in possession of one Video CD system, five cellular phones, 10 carton cigarettes and that the value of goods imported by him was Rs. 60,000/-. On suspicion the Custom officer intercepted the detenu as he suspected the detenu might be carrying contraband or electronic goods in huge quantities. On questioning, whether he was carrying any such contraband or electronic goods, he replied in negative. The custom officer not being satisfied took him to the air intelligence unit room along with the said baggage for detailed examination. Even in the presence of witnesses on being questioned he confirmed his name and that he owns three check in baggage and one hand bag. On examination of Sony video CD MHC-V 818 carton the officer found that it contained one Sony Video CD player model, the second carton Soni Video CD SS-V818 contained one pair of speakers. The third green colour zipper shoulder bag "VENO" contained 10 cartons of State Express 555 cigarette, each containing 400 sticks and on examining one carton it was found within, it contained two cartons of State Express 555 cigarettes each containing 200 cigarettes. He further opened and examined both the State Express 555 cigarette cartons and recovered six cellular phone all with transparent polythene cover wrapped in black carbon paper and secured with black cellophone tape from one carton and ten packets of State Express 555 cigarettes each containing 20 cigarettes from the other carton. Similarly he opened and examined the remaining nine State Express 555 cigarette cartons 400/20 capacity and recovered 10 packets of State Express 555 cigarette with 20 sticks in each and six cellular phones from each of the four above said nine State Express 555 cigarette cartons. The said officer then examined the balance of State Express 555 cigarette cartons of 400/20 capacity and recovered ten packets of State Express 555 cigarette with 20 sticks in each and seven cellular phones from each of the said five cartons. Thereafter the said officer cut open all the cellular phone wrapper and found 23 numbers Samsung SGH cellular phones, 31 numbers Bosch GSM 908 cellular phones and 11 numbers Nokia 6110 cellular phones. Then his hand bag was also opened which contained transparent polythene duty free shop bag containing 14 numbers AIWA HSGS 183 walkmen and his personal effects. So in all total goods in baggage found were 65 cellular phones, 14, AIWA walkmen, 10 cartons of State Express 555 cigarette and one Soni Video CD player.

(3.) The case of the respondent is that the goods brought in were in trade and they were not bona fide baggage goods and the petitioner grossly misdeclared the type and quantity of goods brought by him. In fact he ingeniously concealed the cellular phones in cigarette cartons to evade detection by custom authorities and attempted to clear the goods without payment of appropriate custody duty. The aforesaid 65 assorted cellular phones, 14 AIWA walkmen, 10 cartons of State Express cigarette and one Soni video MHC-V CD system were seized under a mahazar for action under the Customs Act, 1962. The total value of goods seized is Rs. 7,16,200 (CIF) and Rs. 10,74,300 (market value) on the day of seizure. The further case is on the same day, on 12th March, 1999 he made voluntary statement before custom officers at Anna International Airport, Chennai that since his income was not sufficient so to earn, he took a passport with the help of his friend to import goods to Chennai and to sell them in Burma Bazar. On 7th March, 1999 he went to Singapore and from the income earned there bought some walkmen and one VCD and when he was about to leave Singapore one Seeni Mohamed met and introduced himself and gave some cigarette cartons and five cellular phones at Kualampur to be carried to India and for which in turn he was paid his air ticket. These goods were contained in a green colour VENO zipper bag. The said friend informed the detenu that on his arrival at Chennai he should carry the said green colour VENO zipper bag outside the air port where it should be handed over to the person identifying him who shall pay him Rs. 15,000/-. The case of the respondent as disclosed in the counter- affidavit is, under Section 11(2)(u) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992, import of cellular phones and electronic goods by way of concealment and misdeclaration of its value with an attempt to evade duty, renders such goods liable for confiscation under Section 111(d), (1) and (m) of the Customs Act. The petitioner was arrested on 13th March, 1999 and produced before the Additional Chief Metropolitan Magistrate, E.O.-II, Chennai, who remanded him to judicial custody till 26th March, 1999. The aforesaid detention order was served on the detenu while he was in the Central Prison, Chennai on 28th April, 1999.