POOJA BATRA Vs. UNION OF INDIA

JUDGEMENT

(1.) MS. POOJA Batra, petitioner has filed the present writ petition for quashing the detention order bearing F. No. 673/06/2007-CUS/viii dated 5th December, 2007 issued by Joint Secretary (COFEPOSA), Ministry of finance, Department of Revenue against her husband Deepak Kumar @ Deepak Batra S/o Sh. Om Prakash (hereinafter referred as the detenu), R/o 1431, Gopal Street, Sangat rashan, Paharganj, New Delhi under Section 3 of the Conservation of Foreign Exchange and Preservation of Smuggling Act, 1974. The detenu was detained in pursuance to the said detention order on 22nd May, 2008.

(2.) BRIEFLY stated the facts of the case as given in the petition are that the detenu purported to have represented himself as a proprietor of a concern styled as M/s Om prakash Deepak Kumar, 1074-75, Room no. 23, Jyoti Market, Gandhi Gali, Fatehpuri, delhi-110006. He filed a bill of entry bearing no. 589144 dated 25th April, 2007 for clearance of the consignment at I. C. D. , tughlakabad, New Delhi through their clearing agent CHA M/s P. P. Dutta, Wg. Cdr. (Retd.) for the clearance of 1041 cartons containing ?telescopic Channels? of 10?, 12?, 14?, 16? and 18? and ?soft Scrubber? collectively valued at Rs. 3,06,045. 51 (Rupees three Lacs Six Thousand Forty Five and Fifty one Paise ). On the aforesaid valuation, a duty amount payable was Rs. 1,04,201/- (Rupees one Lac Four Thousand Two Hundred One ). It is alleged that the clearing agent, M/s p. P. Dutta sent a letter to the Deputy commissioner of Customs, ICD, Tughlakabad, new Delhi wherein it expressed its inability to clear the shipment due to some problem and accordingly issued NOC in favour of the detenu. On 15th June, 2007, the clearing agent along with a covering letter sent original bill of entry invoice, packing list, Bill of lading, certificate of origin and NOC to the detenu. On receipt of the aforesaid documents, the detenu Deepak Kumar himself appeared before the Customs Authorities, ICD Tughlakabad, new Delhi on 3rd August, 2007 represented himself to be the proprietor of M/s Om Prakash deepak Kumar and requested for clearance of the aforesaid bill of entry on the ground that the clearing agent was not coming forward to clear the consignment. The statement of the detenu Deepak Kumar was recorded under section 108 of the Customs Act which he alleges to have been obtained under duress and coercion. Thereafter, the consignment was opened and it was found to contain goods other than the ones which were declared to the tune of value of Rs. 3,06,045. 51/- (Rupees three Lacs Six Thousand Forty Five and Fifty one Paise ). Accordingly, his statement was again recorded on 4th August, 2007. In both the statements, the detenu had represented himself as to be the proprietor of M/s Om prakash Deepak Kumar having its office at 1074-75, Room No. 23, Jyoti Market, Gandhi gali, Fatehpuri, Delhi-06 having IEC Code no. 050602341 dated 25th July, 2006 which was purported to have been issued by the director General of Foreign Trade, Govt. of india. The detenu had also represented that he had now shifted his business to 1431, gopal Street, Sangat Rashan, Paharganj, New delhi. Since it was a case of under valuation and mis-declaration, the detenu was arrested and produced before the learned ACMM, patiala House Courts, New Delhi on 4th August, 2007 who had remanded him to the judicial custody. The detenu filed a bail application on 6th August, 2007 before the learned ACMM, new Delhi and in the said application, he made a mention that his confession/statement which was purported to have been recorded by the customs Authority was obtained under duress/coercion. The said application for grant of bail of the detenu was rejected on 14th august, 2007 after obtaining reply from the customs authorities. On 16th August, 2007, a fresh bail application was filed before the learned Additional Sessions Judge, New Delhi which was also rejected on 17th August, 2007. On 18th August, 2007, a third application for bail was filed before the High Court which was allowed on 30th August, 2007 on the ground that the detenu had been in custody for 27 days and he had already paid a customs duty to the tune of Rs. 25,00,000/- (Rupees twenty Five Lacs) and was prepared to pay the penalty on account of the mis-declared imported goods. Thereafter, a detention order is purported to have been passed on 5th december, 2007 against the detenu which he allegedly learnt only on 22nd May, 2008 and whereafter he immediately surrendered before the ACMM, New Delhi and he is in custody since then. He represented to the secretary, Govt. of India on 13th June, 2008 through Jail Superintendent which representation was rejected by the Special secretary, Govt. of India on 1st July, 2008 and communicated to him on 2nd July, 2008 belatedly. Similarly, the Advisory Board also rejected the case of the detenu on 23rd july, 2008 and thereby now he was constrained to file the present petition as averred by him.

(3.) SO far as the respondents are concerned, they have filed their detailed counter affidavit and contested the claim of the petitioner on certain factual aspects apart from legal propositions. The case of the respondent-sponsoring Authority is that on 25th April, 2007 after filing the bill entry No. 589144 dated 25th April, 2007 before the Deputy commissioner of Customs (Import Shed), tughlakabad, New Delhi through clearing agent Wg. Cdr. , P. P. Dutta, the detenu or his clearing agent did not appear for dealing the goods till 23rd July, 2008. The consignment was declared to contain 1041 cartons containing ?telescopic Channels? of 10?, 12?, 14?, 16? and 18? and ?soft Scrubber? collectively valued at Rs. 3,06,045. 51 (Rupees Three Lacs Six Thousand Forty Five and Fifty One Paise) of which a duty amount of Rs. 1,04,201/- (Rupees One Lac Four thousand Two Hundred and One) was payable. Since the sponsoring authority had intelligence reports that the importer is attempting to get imported goods cleared by mis-declaring the description, quantity and value accordingly, surveillance was kept on the consignment in this regard. Simultaneously Manager (CONCOR) ICD, tughlakabad, New Delhi was requested, not to clear the aforesaid consignment without the written permission of the Deputy commissioner of Customs (Import Shed), icd, Tughlakabad, New Delhi. Till 23rd July, 2008, nobody came forward to get the goods cleared. Since the clearing agent M/s p. P. Datta, Wg. Cdr. (Retd.) had got suspicious about the contents of the consignment on account of the fact that the detenu had approached and stated him that at no cost the consignment should be checked, he withdrew his authority to get the goods cleared and returned the papers to the detenu. On 3rd August, 2007, the detenu appeared before the concerned official in the Import Shed and gave a letter dated 2nd August, 2007 on the letter head of M/s om Prakash Deepak Kumar requesting the deputy Commissioner of Customs (Import shed), ICD Tughlakabad, New Delhi that the aforesaid consignment be cleared. It was also represented that the clearing agent was not coming forward to get the goods cleared and therefore he had to come himself. Since there was an intelligence report regarding the mis- declaration under violation about the quantity and the quality, the Deputy commissioner had written that the entire 100% of the consignment has to be checked which was done on 3rd August, 2007. Pursuant to this, on 4th August, 2007 when the detenu had appeared again, his statement under Section 108 of the Customs Act were recorded where he had owned the concern styled as M/s Om Prakash Deepak Kumar and he had also owned the import on the aforesaid consignment, although he had disputed the factum of other eight prior consignments having been got cleared by him. The consignment was found to contain carton boxes / packages numbering 1118 as against 1041 and which were more than what was claimed under the bill of entry No. 589144 dated 25th April, 2007. The consignment was found to contain 441 cartons as containing Telescopic Channels instead of 700 cartons as declared. As against the declared 341 carton boxes containing Soft Scrubber only 54 were found to contain Soft Scrubber. On opening of these carton boxes of identical marking said to contain soft scrubber, it is found that different types of goods were kept concealed in these cartons. It was found that 200 similar carton boxes contained shoes of adidas, Nike, Air brands and 67 similar carton boxes were found containing cigarettes packets of ?marlboro? brand, 56 white small boxes were found containing ignition plugs of ?mico Bosch? brand and similar 300 cartons were found containing AAAR03 NISHICA of brand battery cells. Inquiries by the respondents also revealed that ignition plugs of ?mico Bosch? were found to be spurious and similarly ?marlboro? cigarettes were found to be not containing statutory warning and therefore, it being spurious could also be not ruled out. It was found by the respondents, apart from the declared goods in 495 cartons collectively valued at Rs. 2,03,220/- (Rupees two Lacs Three Thousand Two Hundred and twenty) of different types of un-decklared goods collectively valued at Rs. 85,q4,000/- (Rupees Eighty Five Lacs Four Thousand)contained in 623 cartons were concealed with the declared goods. The duty involved on the said goods contained in 1118 carton boxes and collectively valued at Rs. 87,07,200/- (Rupees Eighty Seven Lacs Seven Thousand and two Hundred) worked out to be rs. 30,00,000/- (Rupees Thirty Lacs)approximately. Accordingly,. A Panchnama dated 3rd August, 2007 was prepared and goods were confiscated along with their packaging material under Section 110 of the customs Act, 1962 on the reasonable ground that the same were being smuggled.