KUMUTHAMALAR RAMACHANDRAN Vs. JOINT SECRETARY

JUDGEMENT

(1.) The petitioner in this Habeas Corpus Petition calls in question the validity of the order of detention passed by the first respondent herein vide Order No.PD- 12002/24/2019- COFEPOSA dated 11.10.2019 invoking the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974.

(2.) According to the respondent, on 25.08.2019, the officers of the Airport Intelligence Unit (AIU), on suspicion, intercepted the petitioner herein who reached Chennai Airport from Malaysia by Air Asia Airlines Flight No. AK 11 at 07.40 hours. On questioning, the petitioner appeared to be nervous and was giving inconsistent version to the questions posed to her. On verification, it was revealed that the petitioner was holding a Malaysian Passport Number A36434097 issued on 05.10.2015 in Malaysia. The personal belongings of the petitioner - two number of hand baggage viz., one black colour shoulder bag and one purple colour stroller suitcase were examined in the presence of witnesses. On further examination of the black colour shoulder bag, three small purses were recovered. On opening the three purses, each purse contained a bundle wrapped up with adhesive tape. On opening the bundle, 12 numbers of yellow colour metallic cut bars totalling weighing 6478 grams were recovered. On suspicion that the metallic bars so recovered could be gold bars, a Government approved gold appraiser was summoned to examine the same. Accordingly Gopi Achari, an approved gold appraiser examined the bars and certified them as 24 k pure gold totalling weighing 6478 grams and valued at Rs.2,52,51,244/- at the rate of Rs.3,898/- per gram. The gold bars were therefore seized by way of a Mahazar dated 25.08.2019 as required under Section 110 of the Customs Act for pursuing necessary action under Customs Act read with Foreign Trade (Development and Regulation) Act , 1992. The respondents also received a report from the approved gold appraiser on the same day namely 25.08.2019. When the petitioner was questioned about the possession of the gold bars, it was replied that a person who was relative of a Malaysia lady named Ros Maszwin Binti Abdul Kadir had handed over the three purses containing the gold to her outside Kuala Lumpur airport with instructions to handover it to a person outside the Chennai Airport, who would identify her and would give Rs.17,000/- soon after she hands it over to him. According to the respondents, the petitioner, knowing fully well that she is smuggling gold by concealing it or without declaring it to the customs officials, has committed the offence for monetary benefit. Therefore, after obtaining a voluntary statement on the same day i.e., 25.08.2019 from the petitioner, as required under Section 108 of The Customs Act, 1962 and after complying with the formalities, the petitioner was arrested on the same day at 17.30 hours for having committed an offence punishable under Section 132 , 135 (1) (a) and 135 (1) (b) of the Customs Act , 1962. Upon arrest, the petitioner was remanded to judicial custody through the Judicial Magistrate, Alandur.

(3.) It is the contention of the respondents that earlier, the petitioner was arrested for having smuggled 1200 grams of gold valued at Rs.39,70,800/-. Taking note of the earlier incident in which the petitioner indulged herself in smuggling of gold as well as the present incident, a show cause notice dated 25.06.2019 was issued to her proposing confiscation of seized gold and imposing penalty. The respondents also carried investigation as to the communication exchanged between the petitioner with Ms. Ros Maszwin Bindi Abdul Kadir through Whatsapp, the arrival and departure particulars of Ms. Ros Maszwin Bindi Abdul Kadir on earlier occasion to India etc., It was also ascertained that the petitioner frequently travelled from Malaysia to India. When the aforesaid material particulars were placed, the first respondent arrived at a subjective satisfaction that the petitioner indulged in fraudulent activities by way of smuggling of goods or abetting the smuggling of goods and engaged in transporting or concealing or keeping smuggled goods at the cost of the government revenue and national security with an intention to enrich herself. Therefore, the first respondent, invoking Section 3 (1) of the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act , 1974 clamped the order of detention dated 11.10.2019 against the petitioner. Challenging the order dated 11.10.2019, the present Habeas Corpus Petition is filed.