1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Writ Petition No.2650 of 2009 Smt.Manda Ganesh Desai Age 33 years, An Indian Inhabitant, Residing at Room no.1986, Narayan Ganpat Patil (Plumber) at Dayghar, Post, Padale, Kalyan Phata, Dist. Thane Petitioner (Wife of the detenu) Shri Ganesh Maharudra Desai Detenu Vs. 1. The State of Maharashtra, through the Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai 400 032. 2. Anna Dani, the Principal Secretary to the Government of Maharashtra, Home (Preventive Detenion), Mantralaya, Mumbai 400 032. 3. The Superintendent of Prison, Nashik Road Central Prison, Nashik Road, Maharashtra. Respondents 2 Mrs.A.M.Z.Ansari for petitioner. Mrs.A.S.Pai, APP for State. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. June 11, 2010. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. In this petition filed under Article 226 of the Constitution, the detention order dated 6/8/2009 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“the COFEPOSA Act” for short) has been challenged by the petitioner who is the wife of the detenu – Shri Ganesh Maharudra Desai and the petitioner has prayed for a writ of habeas corpus for the release of her husband, the detenu. The detention order was served on the detenu on 17/8/2009 and the detention period will expire on 16/8/2010. 2. The order states that it has been passed with a view to preventing the detenu in future from smuggling goods, abetting the smuggling of goods, engaging in transporting smuggled goods and dealing in smuggled goods and all these activities fall under Clauses (a), (d), (e), (f) and (h) of Section 111 of the Customs Act, 1962. 3 3. On 19/2/2009 on receipt of information that smuggled High Speed Diesel was stored in two tugs namely MT Baaz and MT Mansi, officers of the Commsisionerate of Customs intercepted these two tugs in the Indian Custom Water near Ulva Bridge in Belapur Creek. They had also intercepted another vessel MT Sarsar along with one support Motor launch near the same place as the same was moving in suspicious manner. The tugs were brought to B Wharf in P & V Docks for detailed examination. There were four crew members on board MT Baaz and three crew members on board MT Sarsar while none was found on board MT Mansi. The three tugs were examined in the presence of two panchas on 20/2/2009 and the following diesel quantity with the respective value was found: Sr. No. Tug HSD Quantity Value (Rs.) 1 MT Baaz 61.294 Kilo Litres 13,48,468/- 2 MT Mansi 56.835 Kilo Litres 12,50,376/- 3 MT Sarsar 34.588 Kilo Litres 7,60,941/- 4. The amount of duty evaded came to approximately Rs.6.60 lakhs and no documents were produced in support of HSD found in the tugs. The 4 tugs were seized under the provisions of the Customs Act, 1962. The chemical analysis of the seized product conformed to the specifications of HSD and it was disposed to M/s. Bharat Petroleum Corporation Ltd. as per the procedure. The statements recorded on 20/2/2009 of the four crew members of MT Baaz indicated that HSD had been delivered by the tug MT Mansi on 17/18th February 2009 and they could not produce any documents in support of the seized HSD. Tandel of tug MT Baaz and the present detenu was the owner of Tug MT Mansi. Tug MT Mansi was purchased on 29/9/2006 from Shri Mahaboob Ibrahim Shaikh and the registration certificate indicated that it was registered as MT Lion Heart. In his statements recorded on 5/3/2009, 13/3/2009, 18/3/2009 and 20/3/2009 under Section 108 of the Customs Act the detenu stated that he had given his tug MT Lion Heart on rent for Rs.2000/- per day to another person by name Shankar Mahato and his address was not known to him. He stated that he did not have any written agreement with Mr.Shankar Mahato. He could not submit any document in support of the HSD found in MT Mansi which was transported to MT Baaz on 17/18th February 2008. The detenu was arrested on 5/3/2009 and was released on bail on 6/3/2009. It was alleged that he was not co-operating with the investigation and he was alleged to be a habitual offender. Considering the pivotal role played by 5 him in smuggling, it was alleged that he appeared to have propensity to commit such offences in future and he was required to be detained under the COFEPOSA Act with a view to preventing him in future from smuggling goods, abetting the smuggling of goods, engaging in transporting smuggled goods and dealing in smuggled goods. 5. The affidavits-in-reply have been filed by Mrs.Medha Gadgil, Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department, Mantralaya, Mumbai and the Detaining Authority and Mrs.Anna Dani, the then Principal Secretary (Appeals and Security) and the Detaining Authority who had passed the detention order dated 6/8/2009. 6. Though a number of grounds have been raised to challenge the order of detention, Mrs.Ansari, the learned counsel for the petitioner has pressed for the following grounds, (a) There was no material before the Detaining Authority that the HSD alleged to be seized from MT Baaz was smuggled; 6 (b) there was no material before the Detaining Authority that the detenu had transported the HSD in MT Mansi; (c) the tug was found in Ulva creek near Belapur i.e. in the Indian waters; (d) there was no material to show that the seized HSD was purchased or transported from a foreign country; and (e) there was no material to show that the detenu was a habitual offender. 7. As per Section 3(1) of the COFEPOSA Act an order of detention can be passed with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from, (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in 7 smuggling goods or in abetting the smuggling of goods. As per Section 2(39) of the Customs Act, “smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the said Act. Section 111 of the Customs Act is regarding confiscation of improperly imported goods and Section 113 of the said Act is regarding confiscation of goods attempted to be improperly exported. Undoubtedly in the instant case Section 111 of the Customs Act is relevant and in the impugned detention order clauses (a), (d), (e), (f) and (h) of Section 111 have been specifically relied upon. The relevant portion of Section 111 of the Customs Act is, therefore, reproduced as under, “111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable for confiscation:- (a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods; 8 (b) ... ... ... (c) ... ... ... (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any dutiable or prohibited goods found concealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned; (g) ... ... ... (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34.” It is thus clear that to support the order of detention the basic requirement is that the confiscated goods were brought from a place outside India and they were imported by sea or air or were brought within the Indian Customs waters for the purpose of being imported contrary to 9 any prohibition imposed by or under the Customs Act or by any other law for the time being in force. Mrs.Ansari, the learned counsel for the petitioner, therefore, submitted that there was no material before the Detaining Authority to point out that the confiscated HSD was brought from a place outside India or it was imported by sea or air and unloaded or attempted to be unloaded at any place other than Customs port and on this sole ground the order of detention was required to be quashed and set aside. Mrs. Ansari relied upon a recent decision of the Supreme Court in the case of Gimik Piotr Vs. State of Tamil Nadu & ors. [(2010) 1 SCC 609] and submitted that in matters of personal liberty the standard of proof needed to be high to justify the order of preventive detention and the order of detention cannot be supported on hearsay evidence. 8. On this preliminary issue as to whether the HSD confiscated was smuggled, Mrs.Pai, the learned APP sought to refer to the recorded statements of some of crew members on MT Baaz. In all these statements it was contended that they had heard from a third person that the High Speed Diesel was imported but the statement of any of these third persons was not recorded. Mrs.Pai, the learned APP fairly conceded that there was no statement recorded under Section 108 of the Customs Act which would 10 support the basic requirement that the HSD confiscated was smuggled. In the absence of any such material to point that HSD was smuggled, Section 111 of the Customs Act was not applicable. As rightly pointed out by Mrs.Ansari, the order of detention cannot be supported on the basis of hearsay evidence and on the contrary in fact the proof in support of the detention order is required to be of high standard when it comes to taking away the personal liberty of a citizen. When there is no material to point out that the HSD was smuggled, it could not be said that the detenu had engaged in smuggling of goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping the smuggled goods and, therefore, there was no material to invoke the powers under Section 3(1) of the COFEPOSA Act. The impugned order of detention is, therefore, unsustainable in the absence of any such material that the HSD was smuggled. Thus the basic requirement that HSD was smuggled is totally absent in the instant case and, therefore, Mrs.Ansari is right in her contention that the impugned order has been passed without application of mind to the material on record. 10. Hence this petition succeeds and the same is allowed. The impugned order of detention is quashed and set aside and it is directed to release the 11 detenu – Ganesh Maharudra Desai forthwith and he be set at liberty immediately, if not required in any other offence. Rule is made absolute accordingly. (ANOOP V. MOHTA, J.) (B. H. MARLAPALLE, J.)