ATUL G PANDYA Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned advocate Mr. Naik for the petitioner and the learned Addl. Standing Counsel Ms. P.J. Davawala for respondents No.1 and 2 and the learned AGP Mr. Jani for the respondent No. 3. In this petition under Article 226 of the the Constitution of India, the petitioner has challenged the impugned order of detention dated 12th October, 2000 passed by respondent NO.2 herein whereunder the detenu, brother of the petitioner has been ordered to be detained. The order of detention passed against the detenu was actually executed on 14th October, 2000. The impugned order of detention was passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) [hereinafter referred to as "the COFEPOSA Act" for short]. Under the said order, the detenu has been ordered to be lodged in the custody of the Central Prisons, Sabarmati, Ahmedabad. The grounds of detention were communicated to the detenu by the detaining authority - respondent No.2. Respondent No.2 has filed detailed affidavit in reply to the present petition on 29th January, 2001. Rejoinder thereto has been filed by the petitioner on 31st March, 2001. Thereafter, again sur-rejoinder has been filed by the respondent No.2 on 24th April, 2001. Brief facts of the present petition are as under:

(2.) The brother of the petitioner namely Kaushik G. Pandya has been detained under the provisions of the COFEPOSA Act by order of detention dated 12.10.2000 bearing No. F.673/57/2000-Cus VIII by respondent No.2. That the said impugned order of detention was actually served upon the detenu on 14.10.2000 without serving grounds of detention and the documents and materials relied upon by the detaining authority for passing the impugned order of detention. That on the basis of the specific intelligence that Tetracycline would be imported by concealment in a container of Wet Dates at Mumbai, the officers of the Directorate of Revenue Intelligence ("DRI"), the Zonal Office, Mumbai, located and kept a discreet watch on container No. CRXU.2230206 on its arrival from Dubai. On June 7, 2000, the officers of the DRI Mumbai opened and examined the said container in presence of two independent panchas and in presence of Shri Hemant N. Palan, partner of Custom House Agency, M/s. Ajay Clearing Enterprises and the container was found to contain 727 Yellow Colour Bags of Wet Dates bearing marking "BK DATES, BEST SELECTED DATES, ZAHDI GOLDEN" with the prints of Palm Trees on both sides on the front and no marking on the other side of the bad. It is further alleged by the petitioner that the said container was also found to contain 60 light yellow colored plastic bags with no markings. That on opening such bag, it was found to contain yellow colored powder in three plastic bags and these plastic bags contained a packing slip with the following details 'TETRACYCLINE HYDRO CHLORIDE (NON STERILE BULK) GROSS WEIGHT 28.2 KGS. NET WEIGHT 25.0 KGS. MFG. DATE 1999-02. EXP.2003.02 MADE IN P.R. CHINA SICHWAN PHARMACEUTICAL COMPANY LIMITED.'It is further alleged in para 3 of the petition that thereafter, the statement of Shri Pravin Sheshappa Kotian Partner of M/s. Ajay Clearing Enterprises was recorded on 7th June, 2000 and he has stated that he has no knowledge about the clearance work taken by his partner Mr. Hemant N. Palan; that Shri Hemant N. Palan, in his statement dated 7th June, 2000, recorded under section 108 of the Customs Act, 1962 stated inter alia that he is one of the partners of M/s. Ajay Clearing Enterprises; that M/s. Ajay Clearing Enterprises, Mumbai, is handling clearance of Import and Export Cargo; that when he visited his friend Mr. Ashok Thakkar's office, Mr. Thakkar introduced him to one Mr. Hanif who wanted to clear one import consignment; that Mr. Hanif had brought some import documents relating to import of wet dates from Dubai; that he inspected the said import documents and found few documents were not brought by Mr. Hanif and he requested Hanif to bring the remaining documents on 3.6.2000 at the office of Mr. Ashok Thakkar; that accordingly, he handed over the said documents to him at Ashok Thakkar's office; that he was submitting the import and other related documents of M/s. Plus Point Enterprises, Ahmedabad, having 139 pages; that he did not know Mr. Hanif or the proprietor of M/s. Plus Point Enterprises; that he presented the import documents to the Customs House, Mumbai, for filing the bill of entry No. 129141 dated 6.6.2000 for clearing the import cargo of 21.450 Mts. of Wet Dates (Tranian Origin) totally valued at Rs.1,20,102.57.

(3.) It is also alleged by the petitioner in para 3.1 of the petition that thereafter, various statements were recorded by the officers of DRI at Ahmedabad and the officers of the DRI at Mumbai under section 108 of the Customs Act. It is also alleged in para 3.2 of the petition that one Shri Shaikh Anwar, in his statement dated 7.6.2000, recorded u/s.108 of the Act inter alia stated that he contacted M/s. Al Ghauth General Trading (L.I.C.) PO Box No. 222904 Dubai in the month of November, 1999 for the present consignment of 21 Mts of Wet Dates imported by M/s. Plus Point Enterprises, Ahmedabad; that he contacted on Prakash of M/s. Servotech International, Dubai, and placed the order of 4 Mts. of Tetracycline Hydrochloride; that he made payment of 31000 UAE Dirhams as advance; that he, Mr. Pradip K. Shah of M/s. Plus Point Enterprises, Ahmedabad and the detenu, proprietor of M/s. Pharma Deal, Ahmedabad had planned to import Wet Dates and Tetracycline from Dubai; that the detenu had financed the import of the said goods and the detenu was to receive tetracycline and sell the same in the local market; that he on behalf of all placed the order with the overseas supplier for import of wet dates and tetracycline and that he had to dispose of the wet dates in the local market; that he left for Dubai on 30.4.2000 and on 12.5.2000 for the said purpose; that the payment of Rs. 20.50 lakhs was made by the detenu of M/s. Pharma Deal through hawala route; that on 22.5.2000 container No. CRXU 2230206 was stuffed with about 20 Mts. of Wet Dates and 1.5 Mts. of Tetracycline at the godown of M/s. Al Ghauth General Trading (LLC) Dubai, in his presence; that invoice and packing list were prepared by M/s. Al Ghauth General Trading (LLC) as per his advice for 21.450 Mt. Wet Dates valuing US $ 2681; that the tetracycline hydrochloride is of China origin; that he had seen the certificate of Analysis issued by M/s. Bailing Pharmaceuticals Factory, China, withdrawn from his residence and that the same was handed over to him by Prakash of M/s. Servotech international; that he, Pradip K. Shah, Proprietor of M/s. Plus Point Enterprises, Ahmedabad and the detenu, Proprietor of M/s. Pharma Deal Ahmedabad had the full and complete knowledge that Tetracycline Hydrochloride was a restricted item and could not be imported; that the bill of entry for Wet Dates was prepared by CHA on the basis of documents forwarded by him through his friend Shri Hanif who had gone to Mumbai for personal work; that he and Shri Pradi were to receive Rs.50,000.00 each as commission apart from the expenses incurred by him for his trip to Dubai; that the detenu was to earn the margin from selling it in the local market. In para 3.3 of the petition, the petitioner has further submitted that the statement of the detenu was also recorded on 8.6.2000 u/s.108 of the Act and it is alleged in his statement, inter alia, that the detenu studied upto SSC; that the detenu knew Shri Shaikh Anwar since four years; that the detenu started dealing in sale of raw material after supply of the same by Shri Anwar; that the detenu had not received any Bill for Tetracycline Hydrochloride and Vitamin 81 from Shri Anwar and were selling the same without bills and in cash; that these raw materials were imported; that the detenu had given Rs.20.5 lacs to Shri Anwar for bringing Tetracycline Hydrochloride from Dubai; that Shri Anwar had asked for commission of Rs.50,000.00 per consignment and also Rs.50,000.00 for Shri Pradeep Shah, Proprietor of M/s. Plus Point Enterprises; that the whole procedure for import of Tetracycline Hydrochloride was done by Shri Anwar who had been to Dubai; that Shri Anwar had told you tetracycline hydrochloride will be imported with cover cargo like paraffin was and wet dates; that market value of tetracycline hydrochloride is Rs.1,2000.00 per kg. with bill. It is further alleged in the grounds of detention, as per para 3.4 of the petition, that the further statement of the detenu was recorded on June 9, 2000 in which he stated that the statement of the detenu dated 8.6.2000 was correct; that the detenu had financed the import of 1500 kgs of tetracycline hydrochloride by M/s. Plus Point Enterprises through Shri Shaikh Anwar.