SANJAY KRISHNANGOTHAL Vs. CHANDRA IYENGAR

JUDGEMENT

(1.) By this petition, the petitioner, who is the brother of the detenu Rajesh Krishna Gothal is challenging the detention of the said detenu. The impugned detention order is dated 17-8-2006 and the same was passed by the Principal Secretary (Appeals and Security) Government of maharashtra, Home Department and the Detaining Authority under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974, hereinafter referred to as the "said Act", on the ground that with a view to prevent the detenu in future from smuggling of goods, it was necessary to detain him under the said Act. The detenu Rajesh Krishna Gothal was traced, arrested and detained on 14-9-2006 and on the very same day, the detenu was furnished with the detention order and also the grounds for passing such a detention order 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 2 C, 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 other OCS Courier documents, samples and parcel bags. It was also revealed that this was a plan evolved with one of the colleagues of the detenu viz. Vijay Ramchandra Panchal, who was also present at the said baggage hall. In view thereof, both the detenu and the said Vijay Ramchandra Panchal were apprehended by the D. R. I. Officers. It appears that the said Vijay Ramchandra Panchal had also informed that the modus-operandi was to clear the electronic items (RAM cards) without paying customs duty and deliver the same to one Mr. Kamal outside the Airport and the monetary consideration was to be shared between the two. The D. R. I. Officers examined both the brown cartons from the said Courier Bags of M/s. Fadex and found those cartons containing 1700 pieces of RAM cards of different types totally valued at Rs. 13,52,900/ -. Accordingly those 1700 pieces of RAM cards were seized. The aforesaid three bags were also examined and they were containing documents and two samples. The same were handed over to Custom authorities for clearance. On interrogation, the modus operandi appeared to be that one Shri. Kamal Rohit Reshamwala, the said Vijay Ramchandra Panchal and the detenu were to get these electronic items from Hong Kong and on arrival these high valued electronic items were to be shifted into a Courier bag containing documents and samples which bear no customs duty. It was also contended by the D. R. I, that the detenu was clearly informed by the Vijay ramchandra Panchal the Modus Operandi that the aforesaid goods will have to be cleared without paying any duty and handover the same to one Kamal Rohit reshamwala, outside the Airport and that they were to share the monetary consideration. The detenu's statements were recorded on 3-4-2006 and also on 12-5-2006. On interrogation, it was also found that the detenu was earlier involved in clearing similar consignments without paying customs duty and that the present consignment had arrived by Air India Flight No. AI-315 on 23-3-2006 around 12. 30 a. m. and the parcel was also cleared changing into "documents bags only" and as such the same was cleared without payment of any duty. After completing entire investigation and recording various other collateral statements, D. R. I. had forwarded all the documents and proposals to the detaining Authority and thereafter the same were duly processed by the Office of the Detaining Authority 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 the detenu had been detained is on the ground of preventing him from smuggling of goods, whereas at the most it would be only abetting the smuggling of goods.