P SYAMALA Vs. S V PRASAD

JUDGEMENT

(1.) An order dated 9-6-1992 passed by the specially empowered Officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as COFEPOSA Act, directing the detention of one Pasumarthi Madhusudana Rao, hereinafter referred to as the detenu, under Section 3(l)(i) and (iv) of the COFEPOSA Act, is challenged in this writ petition by the detenu's wife.

(2.) On 19-5-1992 the detenu alongwith his son-Sekhar and cousin-Pasumarthi Sivaramakrishna @ Shivaji alighted from the train - Tirupati bound Howrah express - at Kaikalur railway station at about 5 a.m. The Officers of the Central Excise in the reasonable belief that the above three persons were in possession of contraband gold attempted to stop and check them. But the same was resisted by the three persons. With the help of one Durga Prasad, Assistant Travelling Ticket Examiner on duty in S.E. Coach, all the three were put back in the train. When the train reached Vijayawada, all the three and Durga Prasad, Assistant Travelling Ticket Examiner were taken to the Office of the Assistant Collector, Central Excise, for conducting search. The search of the persons and the luggage of the detenu and the other two, disclosed that the detenu was carrying a cloth bag while Sekhar - his son - a V.I.P. suit case and his cousin-Shivaji-a plastic basket. Three railway tickets showing journey from Kharagpur to Vijayawada and cash of Rs.1,900/- were recovered from the detenu. Cash of Rs.1,600/- was recovered from Shivaji and Rs.300/- was recovered from Sekhar. The detenu admitted that he had kept the contraband gold in the cloth bag. On examination, it was found that two packets secured in adhesive tapes were concealed in the bag and on opening, it was found from one packet 16 gold biscuits with foreign markings and the other packet contained 12 gold biscuits with foreign markings. The authorities secured the presence of a Goldsmith who weighed and valued the gold biscuits which were found to be of 24 carats purity and of foreign origin, totally weighing 3266.200 grams and valued at Rs.l4,00,000/-(Rs.50,000/-each gold biscuit). The detenu failed to produce any valid document as to its possession and on the other hand, admitted that he brought the gold from Calcutta with an intention to dispose it off locally for profit and that he took his son, Sekhar and cousin, Shivaji to Calcutta for protection. In the reasonable belief that the gold was smuggled into India and was therefore, liable for confiscation, the Officers seized all the 28 foreign marked gold biscuits along with the cloth bag and the packing material, but returned the cash, the V.I.P. suit case and the plastic bag.

(3.) In his statement recorded on 19-5-1992 under Section 108 of the Customs Act, the detenu admitted, inter alia, that the particulars of the seizure effected under the mahazar were correct and that he took to illegal business in contraband gold for making profits, that he visited Calcutta and studied the position relating to this business, that he pooled Rs.13.70 lakhs locally and left for Calcutta by East Coast Express on 16-5-1992 along with his cousin and son, reached Calcutta on 17-5-1992 and after purchasing the gold from a broker by name Osman of Sona Bazaar, reached Kharagpur on the same night and boarded the Tirupati bound Howrah Express. He also stated that the tickets were purchased up to Vijayawada although they wanted to detrain at Kaikalur, but tickets were not issued to Kaikalur, that his cousin, Shivaji knew about the business and accompanied him for giving protection, for a monetary consideration of Rs.1,000/- for the trip, but his son, Sekhar came only for site-seeing. The attempts of the Officers to stop the detenu at the railway station were resisted by him as he was not aware of the identity of the officers and in the scuffle, he sustained an injury to his right wrist. It was also further mentioned in his statement that the detenu was not aware of the particulars of Osman, the person from whom he purchased the contraband gold.